IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE G.NARENDAR M.F.A. NO.229/2017 BETWEEN SMT HEMAVATHI S SHETTY W/O MR SHASHDHAR N SHETTY, AGED ABOUT 44 YEARS, RESIDING AT DOOR NO 3-190/2, KATTINJA SITE HOUSE, BONDANTHILA POST, NEERMARGA, MANGALORE, D.K DISTRICT-575012.
(BY SRI RAVISHANKAR SHASTRY G, ADV.) AND 1. MRS MARIA FLOSSIE FERNANDES W/O VICTOR ALBAN RAPHAEL D’SOUZA , ADULT, OCCUPATION NOT KNOWN R/AT # 5-172, THALAMBILA HOUSE, AMTADY, BANTWAL TALUK, D.K.DISTRICT, PIN 574219 2. UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE AT VARANASHI TOWERS, MISSION STREET, BUNDER, MANGALORE, D.K DISTRICT-575001, REPRESENTED BY ITS BRANCH MANAGER.
... APPELLANT ... RESPONDENTS (BY SRI K SURESH, ADV. FOR R2, R1 – SERVED.) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.10.2016 PASSED IN MVC NO.569/2015 ON THE FILE OF THE IV ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER MACT, DAKSHINA KANNADA, MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the learned counsel for the petitioner-appellant and the learned counsel for the respondents.
2. Appeal is listed for Admission as it involves a short question of assessment of just and reasonable compensation for the injury suffered, the matter is taken up for disposal with the consent of the counsels.
3. The parties are referred to by their nomenclature in the trial court.
4. Brief facts are that on 07.09.2014 the petitioner-claimant was traveling as a pillion rider on the scooter bearing Registration No.KA-19-EH-3206 from Sharbathkatte to Central market side. That one Dinesh Kumar was riding the scooter slowly and carefully on correct side of the road. That when they reached in front of Indian Overseas Bank, Paduva Branch, the driver of the Car bearing Registration No.KA-19-ME-3569 came from the opposite direction i.e. from Nanthoor towards Sharbathkatte and the car was driven in a rash and negligent manner and as a consequence of which, the car hit the scooter. On account of the collision, the petitioner-claimant sustained grievous injuries resulting in a fracture to the mid third of the tibia and fibula and simple injuries to the other parts of the body.
5. The petitioner-claimant was immediately shifted to Fr.
Muller’s hospital, Kankanady, Mangalore, then she was shifted to Ullal General hospital, Alake, Mangalore. That she was in- patient between 07.09.2014 to 11.09.2014. That on account of injury suffered, the hospital doctors carried out the procedure of nailing, on the right leg after administering anesthesia. The procedure was completed on 08.09.2014. That during the hospitalization the claimant was forced to appoint an attendant.
That she was paying the attendant at the rate of Rs.3,00/- per day. That she has expended a sum of Rs.50,000/- towards medical expenses for food and nourishment and conveyance and she was advised to take bed rest.
6. That prior to the accident the claimant who was hale and health and she was working in the K.F.C. restaurant in Mangalore and earning a Rs.7,000/- per month. On account of the accident, she is unable to continue the work in the aforesaid establishment. On the said allegations the tribunal was pleased to fasten the liability on the driver of the car and consequently the insurer was made liable to pay the compensation and satisfy the award. The tribunal was pleased to award a total sum of Rs.1,27,100/- with interest at 6% p.a. from the date of petition till its realization.
7. Aggrieved, the petitioner-claimant is before this court. He would contend that the sum awarded under the heading of pain and suffering is grossly inadequate to the nature of injury suffered. He would also contend that the tribunal erred in calculating the laid up period as being only one month. It is contended that the practice in the Lok-Adalaths is that for an injury of the tibia and fibula, a sum of Rs.40,000/- to Rs.45,000/- is awarded under the head of pain and suffering. He would further contend that the petitioner-claimant had specifically contended that her income was Rs.7,000/- per month and the court without any basis has reduced it to Rs.5,000/-. In this regard also, he would submit that the notional income adopted by the Lok-Adalaths and courts during the relevant period i.e. the year 2014 is Rs.7,000/- to Rs.8,000/-. The contention merits consideration. Learned counsel for the respondents would fairly concede on these two headings.
8. Learned counsel for the petitioner-claimant would contend that the tribunal has erred in not calculating and awarding loss of future income. Per contra, the learned counsel for the respondent insurer would vehemently contend that the question of assessing future income would not arise as the petitioner-claimant has not made out a case that she has lost employment. It is also contended that the petitioner-claimant has not placed any material to demonstrate that she was in employment in the first place and hence she would resist the consideration of granting any sum under the head of loss of future income. The contention on behalf of the respondent insurer merits consideration. On perusal of the material on record and the documents placed on record by the petitioner- claimant, the same would reveal that no employment certificate or salary certificate has been placed on record. In that view of the matter, the fact of loss of employment cannot be presumed and it was a fact that was required to be demonstrated by the petitioner-claimant with corroborative material before the tribunal. The petitioner-claimant having failed to demonstrate the case of loss of employment, the petitioner-claimant would not be entitled to any compensation under the head of loss of employment.
9. Learned counsel for the petitioner-claimant would fairly admit that no material to demonstrate her employment or loss of employment has been demonstrated before the tribunal. In the above facts and circumstances, the short point that is required for consideration is whether the award passed by the court of the IV Addl. District Judge & MACT, Mangalore is just and reasonable?
10. In the considered opinion of this court the sum awarded under the head of pain and suffering is admittedly on the lower side and this court is of the opinion that the court should have awarded a sum of Rs.40,000/-. In view of the nature of injury suffered, it is also not in doubt that in the light of the injury suffered, the petitioner-claimant would have been forced to take rest for at least two months period and further the income assessed also appears to be on the lower side. The fact also remains that evidence regarding disability has been tendered by a doctor who had not treated the petitioner-claimant. Hence, in the opinion of this court the petitioner-claimant would be entitled to an additional global compensation of sum of Rs.50,000/- (Rupees Fifty Thousand only) with interest calculated @ 6% as awarded by the tribunal. Accordingly, the petitioner-appellant would be entitled to total compensation of Rs.1,77,000/- (Rupees One lakh Seventy Seven Thousand only) with interest as awarded by the tribunal.
The appeal stands partly allowed.
The enhanced amount and proportionate interest shall be deposited by the respondent within four weeks from the date of receipt of the certified copy of this judgment and decree. Amount if so deposited before the tribunal, the same shall be released to the claimant-appellant.
Office to draw up decree accordingly.
Sd/- JUDGE Chs* CT-HR