IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY M.F.A.No.10750 OF 2010 (MV) BETWEEN:
Jaya Shilpa B, 28 years, W/o. S.Balaji, R/at S.B.Provision Stores, 2nd Cross, Opposite 2nd High Tension, Electric Pole, Maruthi Saw Mill Road, Sarai Palya, Arabic College Post, Bangalore-45.
(By Sri. R.Chandrashekar, Advocate) AND:
1. The Managing Director, BMTC, double Road, Shanthinagar, Bangalore-27.
2. The Divisional Manager United India Insurance Co., Ltd., Divisional Office No.4, No.19-19/1, South End Road, Basavanagudi, Bangalore-4.
(By Sri. K.N. Srinivasa, Advocate for R-2;
…Appellant …Respondents R1- notice dispensed with vide order dt.31-10-2014) *** This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 31-07-2009 passed in MVC No.5837/2008 on the file of the XI Additional Judge, Member Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, Partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day, the Court delivered the following:
J U D G M E N T The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned XI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bengaluru, (hereinafter referred to as ‘The Tribunal’, for short), in its judgment and award dated 31-07-2009 in M.V.C.No.5837/2008.
2. The summary of the claimant’s case in the Tribunal is that, on 18-01-2008, at about 5:45 p.m., when she was walking on the left side of Nagavara Main Road along with her son, a BMTC Bus bearing Registration No.KA-01/FA-303 coming from Nagavara direction and being driven by its driver in a rash and negligent manner dashed against her from backside, due to which road traffic accident, she sustained multiple grievous injuries all over her body. She was shifted to Baptist Hospital and was treated as an in–patient.
She has also pleaded that she has spent `25,000/- towards medicine and other expenses.
She has further stated that prior to the accident, she was earning a sum of `4,000/- per month by working as a ‘tailor’, but due to the accident, she is unable to pursue her avocation. With this, she has claimed a sum of `3,00,000/- as compensation from the respondents.
3. Before the Tribunal, the claimant got herself examined as PW-1 and examined Dr. P.N. Prakash as PW-2 and got marked documents from Exs.P-1 to P-12. Neither any witnesses were examined nor any documents were marked on behalf of the respondent- Insurance Company.
4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
5. The Tribunal awarded compensation of a sum of `1,29,640/- with interest at 6% per annum thereupon, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to deposit the said compensation amount along with future interest at the rate of 6% p.a. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
6. Though this appeal is coming up for admission, with the consent from both sides, it is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this Court.
8. Learned counsel for the appellant in his argument submitted that the compensation awarded by the Tribunal under all heads is very meagre.
He submitted that even after noticing that the claimant had sustained grievous injuries to her foot which has also resulted in deformation, the tribunal has awarded a meagre compensation towards ‘pain and suffering’, as such compensation towards ‘loss of income during treatment period’ has fallen short so also the ‘loss of future earning capacity’.
9. The learned counsel for the respondent - Insurance Company in his argument vehemently submitted that the Tribunal had been very generous in awarding the compensation and that it has considered all evidence led before it and awarded a reasonable and just compensation which does not warrant any interference at the hands of this Court.
10. The claimant/appellant in her memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are very meagre. Further stating that the Tribunal ought to have awarded the compensation as claimed by her, the claimant has prayed for allowing the appeal.
11. 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 and the alleged liability of the respondent-Insurance Company to pay the compensation to the injured claimant for the injuries sustained by her 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.
12. The claimant has stated that after the accident, she undertook treatment as in-patient at Baptist Hospital, Bengaluru from 18-01-2008 to 26-01- 2008. By medical examination, it was revealed that she had degloving injury left foot with heel pad avulsion and she underwent a surgery of emergency wound debridement with skin flap Opposition and heel pad stabilization with K wire. Considering all these aspects, the Tribunal has awarded compensation of `20,000/- towards ‘pain and sufferings’.
However, after going through the evidence of PW-1 and PW-2 and so also the copies of Wound Certificate at Ex.P6 and discharge summary at Ex.P7, I am of the view that the compensation awarded towards ‘pain and sufferings’ deserves enhancement by a sum of `10,000/- to make it a just and fair compensation and the same is awarded.
13. Since the ‘medical and incidental expenses’ are based on medical prescriptions and bills produced by the claimant and also after considering the expenses towards conveyance and nourishment she might have incurred, the Tribunal has awarded a sum of `43,000/-, in which I do not want to interfere.
14. Towards ‘loss of income during treatment period’, the Tribunal has awarded a sum of `9,000/- after observing that she should have taken rest for three months, taking the income of the claimant at `3,000/- per month.
15. The claimant has stated that at the time of accident, she was working as a ‘tailor’ and earning a sum of `4,000/- per month. The accident has occurred in the year ‘2008’. Even in the absence of any document to prove the income of the claimant, I am of the view that a sum of `4,000/- per month which was the notional income prevailing in the relevant year is to be taken into consideration. Accordingly, the income of the claimant is taken at `4,000/- per month as at that period. In such a case, she is entitled for just and fair compensation towards ‘loss of income during treatment period’ which comes to `4,000/-x3 months = `12,000/- (-) `9,000/- awarded by Tribunal = `3,000/-, being the enhanced compensation under this head.
16. Towards ‘loss of future earning capacity’, the Tribunal has accepted the assessment made by PW-2 - Doctor at 8% to the whole body. Considering the nature of avocation of the claimant that she was working as a ‘tailor’ and that the injury sustained was to her left foot, the Tribunal has rightly accepted 8% disability as functional disability. However, since it has taken the income of the claimant at `3,000/- per month which is now proved to be on the lower side, the monthly income of the claimant when taken at `4,000/-, the quantum of compensation towards ‘future earning capacity’ would come to `4,000/- x 12 months x ’17’ (multiplier) x8% = `65,280/-. After deducting a sum of `32,640/- awarded by Tribunal under this head, the claimant/appellant is entitled for an enhanced compensation of a sum of `32,640/-.
17. Towards ‘loss of amenities in future life’, I am of the view that considering the facts and circumstances of the case, she deserves an enhancement by a sum of `10,000/- so also towards future medical expenses even in the absence of any document or medical evidence, considering the nature of injuries and the alleged requirement to undergo a plastic surgery, I am of the view that the compensation awarded under the said head deserves to be enhanced by a sum of `5,000/-.
18. Thus, the claimant/appellant is entitled for enhancement of `60,640/- which is in addition to the amount of `1,29,640/- awarded by Tribunal.
19. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads.
Accordingly, I proceed to pass the following:-
O R D E R The Appeal is allowed in part.
The judgment and award passed by the learned XI Additional Judge, Court of Small Causes and Member, Motor Accident Claims Tribunal, Bengaluru, dated 31-07-2009 in M.V.C.No.5837/2008 is hereby modified to the extent that the compensation awarded at `1,29,640/- is enhanced by a sum of `60,640/- (Rupees Sixty Thousand Six Hundred and Forty only) thus fixing the total compensation at `1,90,280/- (Rupees One Lakh Ninety Thousand Two Hundred and Eighty only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
However, since the delay of 343 days in filing this appeal was condoned subject to the condition that the appellant shall not be entitled to any interest for the said period in case of enhancement of compensation, the appellant is not entitled for interest for the said period of 343 days.
Draw the modified award accordingly.
Learned counsel for the respondent - Insurer is permitted to file his vakalath in the Registry within two weeks from today.
Sd/- JUDGE BMV*