IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.8597/2012 (MV) BETWEEN:
PRADEEP AGED ABOUT 21 YEARS S/O. PUTTAYYA ACHARI R/O. NANCHARU NALKOORU VILLAGE UDUPI TALUK. … APPELLANT (BY SRI. PAVAN CHANDRA SHETTY, ADVOCATE) AND:
1. GANAPAYYA ACHARI AGED ABOUT 41 YEARS S/O. NARAYANA ACHARI R/O. PADEMATTA KENJOOR VILLAGE UDUPI TALUK.
2. BAJAJ ALIANZE GENERAL INSURANCE CO. LTD., 2ND FLOOR, RAJ TOWERS MOODA-NIDAMBURU NEAR CITY BUS STAND UDUPI REPRESENTED BY ITS MANAGER. ... RESPONDENTS (BY SRI. H.S. LINGARAJ, ADVOCATE FOR R2 R1 IS SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.06.2012 PASSED IN MVC.NO.468/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is listed for admission and with the consent of learned counsel for the parties, the matter is taken up for final disposal.
2. The present appeal is filed challenging the judgment and award passed in M.V.C.No.468/2009 dated 18.06.2012 on the file of Additional Senior Civil Judge and Additional M.A.C.T. at Udupi and also the liability.
Brief facts of the case are as follows:
3. It is the case of the claimant that he was proceeding as a pillion rider on 08.07.2008 on motorcycle bearing Registration No.KA-20-U-3322 from Kokkarne towards Mandarthi. At about 5.45 p.m., when the motorcycle reached near Kadooru Tile Factory, the rider of the motorcycle had suddenly applied the brake and lost control over the motorcycle, as a result of which, he sustained grievous injuries.
4. It is the contention of the claimant that inspite of the Doctor being examined, who has assessed the disability at 25% to whole body, the tribunal has committed an error in not considering the evidence of the Doctor observing that the treated doctor has not been examined and hence, the evidence of the Doctor cannot be considered. It is further contended that the tribunal has committed an error in awarding meager compensation on all the other heads. The tribunal has not assessed the compensation on the head loss of future income and hence, it requires interference of this Court.
5. The counsel appearing for the claimant also reiterates the grounds urged in the appeal memo and brought to my notice the finding of the tribunal in paragraph No.9 of the judgment and hence, prays this Court to award just and reasonable compensation.
6. Per contra, the learned counsel appearing for the insurance company would contend that no document is placed before the Tribunal with regard to the income of the claimant and hence, the tribunal has taken the income as Rs.3,000/- per month and has not committed any error in awarding the compensation and reasonable compensation has been awarded. Hence, it does not require interference of this Court.
7. Having heard the arguments of learned counsel for the appellant and learned counsel for the respondents, the points that arise for consideration of this Court:
1. Whether the Court below has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
2. What order?
Point Nos.1 and 2:
8. The case of the claimant before this Court is that he was in the hospital as inpatient from 08.07.2008 to 07.08.2008 for a period of 30 days and he has sustained closed head injury with diffuse axonal injury and hence, he is unable to do any work. It is his further case that he was working as a Mechanic in a garage and was earning Rs.8,000/- per month. On perusal of the wound certificate, which is marked as Ex.P4 and also discharge summary as Ex.P5, it discloses that he was inpatient for a period of 30 days and he has suffered head injury.
9. Having considered the nature of injury sustained by the claimant and also the fact that he was inpatient in the hospital for a period of 30 days, the tribunal has committed an error in awarding Rs.20,000/- towards pain and suffering. No doubt, the accident is of the year 2008, the tribunal ought to have taken note of the nature of injury i.e., head injury and hence, it is appropriate to award Rs.40,000/- as against Rs.20,000/-.
10. The tribunal has awarded a sum of Rs.12,000/- towards loss of income during laid up period taking the income of the claimant as Rs.3,000/- per month. Since, the accident has taken place in the year 2008 and in the absence of any documentary evidence with regard to the proof of earning, the tribunal ought to have taken the notional income and hence, it is appropriate to take the income of the claimant as Rs.4,500/- per month. Having considered the period of treatment undergone by the claimant in the hospital for a period of 30 days, though the tribunal has taken four months, since even after discharge also the claimant requires rest, it is appropriate to take five months salary and award a sum of Rs.22,500/- as against Rs.12,000/-.
11. The tribunal has awarded Rs.27,600/- towards medical expenses, based on the documentary evidence and hence, it does not require any interference.
12. The Court below, in paragraph No.9 of the judgment with regard to disability has observed that the disability certificate issued by the Doctor Umesh Prabhu is available on record and the Doctor, who issued disability certificate was not examined. It discloses that the Doctor, Umesh Prabhu has issued only disability certificate and he did not treat the petitioner at any point of time. He assessed disability at 25% as far as whole body is concerned. It has come in the evidence that P.W.1 was working as Mechanic in the garage and was earning Rs.8,000/- per month. Except self-serving statement, there is nothing on record to prove the same. Hence, not awarded any compensation under the head loss of future income.
13. Even in the absence of medical evidence, the Court below ought to have taken note of the nature of injury sustained by the claimant i.e., closed head injury with diffuse axonal injury and he was an inpatient for a period of 30 days in the hospital. Hence, I am of the opinion that the claimant is entitled for compensation on the head of disability. Though the disability certificate which is produced before the tribunal is not marked and also the author of the document has not been examined, on perusal of the discharge summary, it discloses that the claimant was discharged from the hospital after one month and at that time, he was having conscious taking oral medicine and able to verbalize and answer the simple questions. Even after treatment for one month, he was only responding to simple questions and no doctor has been examined before the tribunal. However, this Court has taken note of the nature of injury and the condition of the claimant at the time of discharge and hence, it is appropriate to award Rs.1,00,000/- on the head of disability.
14. The tribunal has awarded Rs.20,000/- on the head discomfort and loss of amenities in life and conveyance and a sum of Rs.8,000/- towards conveyance, attendant and extra nourishment food charges, in all Rs.28,000/-. For having considered the fact that the claimant was inpatient for a period of 30 days in the hospital and he was aged about 18 years and considering the long period of hospitalization, the tribunal has committed an error in awarding Rs.8,000/- towards conveyance, attendant and extra nourishment food charges. Hence, it is appropriate to award Rs.20,000/- as against Rs.8000/-.
15. The compensation awarded on the head discomfort and loss of amenities in life at Rs.20,000/- is just and reasonable. Hence, I do not find any reason to enhance the same.
16. The other contention of the learned counsel for the claimant is that the tribunal has fastened the liability erroneously on the owner on the ground that no valid and effective driving license was produced as on the date of the accident. In view of the recent judgment of the Hon’ble Apex Court in Pappu’s case, this Court can direct the insurance company to pay the compensation and recover the same from the insured.
17. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award of the tribunal is modified granting the compensation of Rs.2,30,100/- as against Rs.87,600/- with interest at 8% per annum from the date of petition till the date of realization.
(iii) The insurance company is directed to pay the amount and recover the same from the insured.
(iv) The insurance company is directed to deposit the amount within eight weeks from today.
(v) Registry to send the records to the Court below forthwith.
Sd/- JUDGE ST