IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.6270/2015 (MV-I) BETWEEN:
H.M. HARSHA S/O H.K. MUKKANNA AGED ABOUT 37 YEARS R/O 919/2-A/55, 4TH CROSS K.B. EXTENSION DAVANAGERE-577002.
...APPELLANT (BY SRI. HANUMANTHAPPA A, ADV.) AND:
1. H.M. SHIVASHANKER S/O MANJAIAH AGED ABOUT 37 YEARS DRIVER OF CAR REG.NO.KA-17/N-5594 R/O BESIDE DR. JHADAV CLINIC K.B.EXTENSION DAVANAGERE-577002.
2. SHIVANNA B.M. S/O BASAPPA MELI AGED ABOUT 56 YEARS OWNER OF CAR NO.KA-17/N-5594 R/O VIJAYALAKSHMI TRADING COMPANY N.R. ROAD DAVANAGERE-577003.
3. THE MANAGER THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE NEAR VIDYARTHI BHAVAN C.G. HOSPITAL ROAD DAVANAGERE -577001.
…RESPONDENTS (BY SRI.A N KRISHNASWAMY, ADV. FOR R3 R1 & R2 – NOTICE D/W V/O DT:10.10.2019) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2015 PASSED IN MVC NO.44/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & VII MACT, DAVANAGERE, 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 The claimant is in appeal, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 01.06.2015 in MVC No.44/2013 on the file of the III Additional Senior Civil Judge and VII Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 21.08.2013, when the claimant along with his friend were returning back to Davanagere in a car bearing registration No.KA-17/N-5594, the driver of the car drove the same in high speed and in a rash and negligent manner and lost control. As a result, the said Car dashed to the road side tree and met with an accident. Due to the said impact, the claimant suffered grievous injuries, sustained fracture of mid 1/3rd left clavicle, fracture of 2nd, 3rd, 4th, 5th to 8th ribs of left side, fracture of 2nd, 11th and 12th ribs of right side and fracture of neck femur, bilateral mild haemothorax and other injuries over other parts of the body. He was immediately shifted to S.S.Hospital, Davanagere, wherein he took treatment as inpatient and subsequently he was shifted to Vikram hospital, Bangalore, wherein he took treatment as inpatient in the said hospital. It is stated that the claimant was doing flower business thereby earning a sum of Rs.20,000/- p.m., and he was aged about 35 years as on the date of accident.
3. On issuance of notice, respondent No.3/insurer appeared and filed its objections denying the claim petition averments and contended that there is violation of terms and conditions of the policy.
4. The claimant got himself examined as P.W.1 and also examined P.W.2-doctor apart from marking the documents as Ex.P1 to Ex.P33 in support of his case. The respondent/insurer marked Ex.R1/insurance policy.
5. The Tribunal, appreciating the material on record awarded total compensation of Rs.8,81,250/- on the following heads:
1. Medical expenses :: Rs.2,50,000/-
2. Future medical expenses :: Rs. 70,000/-
3. Loss of income during laid off period and rest :: Rs. 35,000/-
4. Food and nourishment and attendant charges :: Rs. 5,000/-
5. Injury, pain and sufferings :: Rs. 25,000/-
6. Future loss of income :: Rs.4,91,250/-
7. Loss of amenities and discomfort :: Rs. 5,000/-
Total Rs.8,81,250/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.16,000/- p.m., and assessed whole body disability at 16%. The claimant not being satisfied with the quantum of compensation is before this Court in this appeal.
6. Heard the learned counsel for the appellant/claimant and learned counsel for the respondent/insurer. Perused the certified copy of the lower court records made available during the course of hearing.
7. Learned counsel for the appellant/claimant would submit that the income assessed by the Tribunal at Rs.16,000/- p.m., is on the lower side. He submits that the claimant had placed on record Ex.P11 to Ex.P13, income tax receipts for having filed returns wherein income of Rs.2,64,453/- for the assessment year 2009- 10 is shown; for the assessment year 2010-11 the gross income is shown as Rs.2,88,460/- and for the assessment year 2011-12, gross income is shown as Rs.3,17,773/-. Thus, he prays for revising the assessment of income made by the Tribunal. Further, he submits that the claimant has suffered disability to a particular limb at 50.5% and the assessment of whole body disability by the Tribunal at 16% is erroneous. He submits that the Tribunal ought to have assessed the whole body disability at 18%. Thus, taking the disability to a particular limb at 50.5%, he prays for revising the assessment of whole body disability. Further, he submits that the claimant was inpatient for a period of 13 days and he had come to Bangalore from Davanagere for treatment. The compensation awarded on the head food and nourishment, injury, pain and suffering and loss of amenities and discomfort is on the lower side. It is his further submission that the Tribunal failed to award any compensation on the head traveling expenses and he submits that the claimant had placed on record the traveling bills as Ex.P17 to Ex.P21. Further, the learned counsel submits that the claimant had placed on record medical bills amounting to Rs.2,71,404/- whereas the Tribunal has awarded a sum of Rs.2,50,000/- on the head of medical expenses and without there being any reasons has withheld an amount of Rs.21,404/- on the head ‘medical expenses’. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/ insurer would submit that the compensation awarded by the Tribunal is just compensation which needs no interference. It is his further submission that the Tribunal taking note of the nature of injuries, the Doctor’s evidence and medical records has rightly assessed the whole body disability at 16% taking the disability to a particular limb at 50.5%, which needs no interference.
9. Having heard the learned counsel for the appellant and learned counsel for the respondent/insurer and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in assessing the income of the claimant at Rs.16,000/- p.m., and in assessing the whole body disability at 16% in the facts and circumstances of the case?
(ii) Whether the claimant would be entitled for enhanced compensation in the facts and circumstances of the case?
10. Answer to both the points would be in the affirmative for the following reasons:
The accident that took place on 21.08.2013 involving the Car bearing registration No.KA-17/N-5594 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that he was doing flower business and was earning Rs.20,000/- p.m., as income. To establish his income the claimant has placed on record Ex.P11 to Ex.P13/ the assessment Forms for the assessment years 2009-10, 2010-11 and 2011-12. For the assessment year 2009-10, the total income is shown as Rs.1,64,490/-; for the assessment year 2010-11 the total income is shown as Rs.1,88,460/- and for the assessment year 2011-12 the total income is shown as Rs.2,43,770/-. Taking note of income of all the three assessment years and taking the average of income, the Tribunal has rightly assessed the income of the claimant at Rs.16,000/- p.m., which needs no interference.
11. The claimant has suffered injuries including fracture of mid 1/3rd left clavicle, fracture of 2nd, 3rd, 4th, 5th, 6th 7th and 8th ribs of left side; fracture of 2nd, 11th and 12th ribs of right side apart from fracture of neck femur. He was inpatient for a period of 13 days. The claimant has examined the doctor as P.W.2 in support of his case. The doctor in his evidence has stated that the claimant suffers from 50.5% disability. Ex.P9 is the disability certificate. Taking note of the injuries sustained and treatment taken as inpatient for 13 days and the medical records, the Tribunal has assessed the whole body disability at 16%, which also needs no interference. The disability stated by PW-2 doctor at 50.5% is to a particular limb. The whole body disability would be normally assessed at 1/3rd of the disability to a particular limb. Hence, the disability assessed by the Tribunal at 16% is proper and correct.
12. The Tribunal has failed to award any compensation on the head of medical expenses. The claimant had placed on record the medical bills amounting to Rs.2,71,404/-. But, the Tribunal without there being any reason has awarded only a sum of Rs.2,50,000/- towards medical expenses. When the claimant has placed on record and the insurer has not disputed with regard to medical bills produced by the claimant, the Tribunal ought to have awarded the entire medical expenses for which, the bills have been placed on record. Thus, the claimant would be entitled for a sum of Rs.21,404/- in addition to Rs.2,50,000/- awarded by the Tribunal on the head of medical expenses. The claimant has suffered injuries and has taken treatment as inpatient for a period of 13 days. Looking to the injuries suffered and treatment taken by the claimant, the compensation awarded on the head injury, pain and suffering is on the lower side. In addition to what is awarded by the Tribunal, the claimant would be entitled to another sum of Rs.20,000/- on the said head. The Tribunal committed an error in awarding only a sum of Rs.5,000/- on the head loss of amenities and discomfort. As stated above, the claimant has suffered fracture of both side ribs and fracture of neck femur and he would suffer discomfort, due to such injuries. Hence, the claimant would be entitled for another sum of Rs.25,000/- in addition to Rs.5,000/- on the head of loss of amenities and discomfort. The Tribunal committed an error in awarding only Rs.5,000/- on the head food, nourishment and attendant charges. The claimant was inpatient for 13 days. Accident is of the year 2013. Hence, another sum of Rs.10,000/- is to be awarded on the head of food, nourishment and attendant charges in addition to what is awarded by the Tribunal. The claimant states that he took treatment at Davanagere and subsequently, he was shifted to Vikram Hospital at Bangalore and he has incurred traveling expenses for having traveled from Bangalore to Davanagere and Davanagere to Bangalore. To substantiate the same, the claimant has produced traveling bills at Ex.P17 to Ex.P21 amounting to Rs.30,000/-. But, the Tribunal has not awarded any compensation on the head traveling expenses. Looking to Ex.P17 to Ex.P21 and looking to the treatment taken by the claimant, I am of the view that the claimant would be entitled for a sum of Rs.15,000/- on the head traveling expenses. Thus, the claimant would be entitled for the following modified compensation.
1. Medical expenses :: Rs.2,71,404/-
2. Future medical expenses :: Rs. 70,000/-
6. Future loss of income :: Rs.4,91,250/-
7. Loss of amenities and discomfort :: Rs. 30,000/-
8. Compensation towards traveling Expenses :: Rs. 15,000/-
Total Rs.9,72,654/-
Thus, the claimant would be entitled to total compensation of Rs.9,72,654/- with interest at the rate of 6% p.a. from the date of petition till realization as against Rs.8,81,200/- awarded by the Tribunal.
14. Accordingly, the appeal is allowed in part. The judgment and award dated 01.06.2015 in MVC No.44/2013 on the file of the III Additional Senior Civil Judge and VII Motor Accident Claims Tribunal, Bangalore is modified to the above extent. The claimant is entitled to an enhanced compensation of Rs.91,454/-.
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JUDGE mpk/-* CT:bms