IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K.SOMASHEKAR M.F.A.No.7245/2016 BETWEEN:
Smt. Govindamma, W/o Kuppaswamy @ Kupparaj, Aged 34 years, R/at # 759, 11th Cross, Ambedkar Nagar, Koramangala, Bengaluru – 560 047. … APPELLANT (By Sri Sridhar.D.S., Adv.) AND:
1. M/s. Shriram General Insurance Co. Ltd., No.5, II Floor, White House, St. Mark’s Road, Bangalore – 560 068, Rep. by its Manager.
2. Jayaswamy.S.C., S/o Chikkanna, Major, R/at 774, 22nd Main, 2nd Sector, HSR Layout, Bengaluru – 560 034. … RESPONDENTS (By Sri B.Pradeep, Adv. for R-1) This Miscellaneous First Appeal is filed under Section 173(1) of the MV Act against the judgment and award dated 25.07.2016 passed in MVC No.2106/2015 on the file of the IX Addl. Small Causes Judge & 34th ACMM, Court of Small Causes, Member, MACT-7, Bengalur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT 1. This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the IX Addl. Small Causes & Addl. Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as ‘The Tribunal’, for short), by its judgment and award dated 25.07.2016 in MVC No.2106/2015.
2. The factual matrix of this case is, that on 14.01.2015 at about 6.00 p.m., the appellant herein was proceeding as a pillion rider in Honda Activa bearing registration No.KA- 01-ER-4420 driven by her husband from Koramangala towards Hosur on Hosur Service Road in a slow and cautious manner abiding all the traffic rules and regulations. When they reached near Hosa Road Bus Stop, a Eicher Canter bearing Registration No.KA-01-AB-1855 driven by its driver in a high speed, rash and negligent manner, came to the extreme right side of the road and dashed to the Honda Activa. Due to the impact, the appellant herein fell down and canter ran on her right leg, as a result, she sustained grievous injuries. Immediately, she was shifted to Blossom Hospital, where she took first- aid and thereafter she was shifted to St. John’s Medical College and Hospital, where she was treated as inpatient from 16.01.2015 to 14.02.2015. After diagnosis, it was found that she had sustained crush injury of right foot, degloving injury from the back of the heel to the inner aspect of the foot exposing the underlying soft tissue, muscles and bones on the sole of the foot, all bones crushed with fracture of shaft of 4th and 5th metatarsal. During hospitalization, debridement and K-wiring under ortho 2 was done, debridement and front latissimus dorsi flap was done under general anesthesia, flap re-exploration and vessel repair was done and flap debridement was done.
3. The claimant-appellant herein filed claim petition before the Tribunal seeking compensation of Rs.20 lakhs due to the injuries sustained in the aforesaid accident. Respondent No.1 – Insurance Company contested the claim petition by filing objections. However, respondent No.2 despite service of notice did not appear before the Tribunal, and was therefore, placed ex-parte.
4. Before the Claims Tribunal, the claimant in support of her case, examined herself as PW-1 and the doctor who treated her as PW-2. Exs.P-1 to P-20 were got marked by the claimant during the course of her evidence. The respondent No.1 neither led the evidence nor produced any documents.
5. Upon consideration of the entire evidence on record, both oral and documentary, the Tribunal awarded total compensation in a sum of Rs.7,03,205/- with interest at 8% per annum from the date of petition till the date of payment. However, the claim petition as against respondent No.1-Insurance Company was dismissed fastening the liability to pay compensation by respondent No.2–owner of the vehicle who was placed ex-parte. Aggrieved by the quantum of compensation awarded and the finding with regard to fastening the liability to pay compensation on respondent No.2, the appellant has filed this appeal.
6. The appellant/claimant in his memorandum of appeal has taken a contention that having regard to the nature of injuries suffered by the claimant, the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by her, has prayed for allowing the appeal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. Learned Counsel for the appellant in his argument reiterated the contention taken up by the appellant in his memorandum of appeal.
9. Learned Counsel for respondent No.1 supports the judgment and award passed by the Tribunal.
10. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident sustained by the claimant in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal and the finding of the Tribunal with regard to fastening of liability on respondent No.2 – owner of the vehicle.
11. After analyzing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
Amount (Rs.) Loss of future income arising out of 25% disability 3,60,000/-
12. A perusal of the nature of injury would go to show that in the accident, the claimant has suffered grievous injuries which include crush injury of right foot, degloving injury from the back of the heel to the inner aspect of the foot exposing the underlying soft tissue, muscles and bones on the sole of the foot, all bones crushed with fracture of shaft of 4th and 5th metatarsal. During hospitalization, debridement and K-wiring under ortho 2 was done, debridement and front latissimus dorsi flap was done under general anesthesia, flap re-exploration and vessel repair was done and flap debridement was done. Having suffered such grievous injuries, the claimant has definitely undergone severe pain and suffering. The Tribunal has awarded a sum of Rs.75,000/- towards pain and suffering which appears to be meager. Therefore, another sum of Rs.20,000/- requires to awarded towards the head pain and suffering.
13. PW-2 – doctor in his evidence, has deposed that the claimant has suffered 25% disability to the whole body due to the injuries suffered by her. The said percentage of disability has definitely made the claimant to lose the amenities in life. Having regard to the same, the claimant is entitled for compensation in a sum of Rs.50,000/- towards loss of amenities of life. Thus, after deducting a sum of Rs.25,000/- awarded by the Tribunal, for a difference amount of Rs.25,000/-, the claimant is entitled to.
14. Towards conveyance and attendant charges, the Tribunal has awarded a sum of Rs.10,000/- each under the said heads. Considering the fact that the claimant had sustained grievous injuries as aforesaid and was hospitalized for a period of 31 days as disclosed in the discharge summary at Ex.P-10, I am of the view that reasonable and justifiable compensation under the said heads would be a sum of Rs.20,000/- each. Thus, under the head of conveyance and attendant charges, she is entitled for a differential amount of Rs.20,000/-.
15. Barring the above, the claimant/appellant is not entitled for enhancement of compensation or awarding of compensation under any other heads.
16. With regard to the finding of the Tribunal fastening the liability to pay compensation on respondent No.2, the Tribunal has held so based on the fact that the offending vehicle did not possess a valid F.C. at the time of accident. In that connection, it is useful to refer to the decision of the Apex Court in the case of RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, wherein it is held that even in case where the offending vehicle did not possess a valid permit to operate in the State concerned, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of the offending vehicle. Therefore, the said ratio laid down is squarely applicable to the present case, and therefore, respondent No.1 – Insurer shall first pay the compensation determined and thereafter recover the same form the owner.
17. Accordingly, I proceed to pass the following: ORDER The appeal is allowed in part.
The judgment and award passed by the IX Addl. Small Causes & Addl. Motor Accident Claims Tribunal, Bengaluru in MVC No.9225/2009 dated 25.07.2016 is modified to the extent that the compensation awarded at Rs.7,03,205/- is enhanced by a sum of Rs.75,000/-, thus fixing the total compensation at Rs.7,78,205/- (Rupees seven lakhs seventy eight thousand two hundred and five only). The enhanced amount of compensation shall also carry interest at 8% per annum from the date of petition till payment.
The respondent No.1 – Insurance Company shall deposit the amount of compensation as fixed above before the Tribunal within a period of four weeks from the date of receipt of a copy of this judgment.
The respondent No.1 – Insurance Company is at liberty to recover the amount of compensation from respondent No.2 – owner of the offending vehicle.
Draw modified award accordingly.
Sd/- JUDGE KK