IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL MFA No.4763/2010 c/w MFA No.4762/2010 (MV) MFA No.4763/2010 Between:
LAKSHMAMMA AGED ABOUT 37 YEARS, W/O SHIVALINGAIAH R/AT LAKKAYANAPALYA, TAVAREKERE HOBLI, BANGALORE SOUTH TALUK. .. APPELLANT (By Sri N M PRUTHVIRAJ, ADVOCATE FOR S N ASSOCIATES) AND 1. K L RAVIKUMAR, S/O LINGAIAH, No.80, KONGABORANA DODDI VILLAGE, MADDUR TALUK, NIDIGHATTA POST, MANDYA DISTRICT, KARNATAKA – 571 428.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD SUDHA COMMERCIAL COMPLEX, OPP: COFFEE CAFE DAY RAJAJINAGAR ENTRANCE, BANGALORE-560010. .. RESPONDENTS (By Sri H C VRUSHABHENDRAIAH, ADVOCATE FOR R2 R1 - SD) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2009 PASSED IN MVC No.7584/2008 ON THE FILE OF XVIII ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, SCC-4 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA No.4762/2010 BETWEEN SRI SHIVALINGAIAH S/O CHINNEGOWDA AGED ABOUT 42 YEARS R/AT LAKKAYANAPALYA, TAVAREKERE HOBLI, BANGALORE SOUTH TALUK. .. APPELLANT (By Sri N M PRUTHVIRAJ, ADVOCATE FOR S N ASSOCIATES) AND 1. K L RAVIKUMAR, S/O LINGAIAH, No.80, KONGABORANA DODDI VILLAGE, TAVAREKERE HOBLI MADDUR TALUK, NIDIGHATTA POST, MANDYA DISTRICT – 571 428.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD SUDHA COMMERCIAL COMPLEX, OPP: COFFEE CAFE DAY RAJAJINAGAR ENTRANCE, BANGALORE-560010. .. RESPONDENTS (By Sri H C VRUSHABHENDRAIAH, ADVOCATE FOR R2 R1 - SD) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2009 PASSED IN MVC No.7583/2008 ON THE FILE OF XVIII ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, SCC-4 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These two appeals have been preferred by the appellants-claimants seeking enhancement of compensation awarded by the MACT (Court of Small Causes – 4), Bengaluru, in MVC Nos.7583 and 7584 of 2008 dated 16.11.2009.
2. Heard. Appeal is admitted. Though these appeals are posted for admission, with the consent of the leaned counsel appearing for the parties, it is taken up for final disposal.
3. Brief facts leading to the case are that,-
On 4.3.2008 at about 3.00 p.m., when the claimants were proceeding on a TVS moped bearing Regn. No.KA-04-E-4007 from Kalgehosahalli to Dasappanahalli, BM Road in a moderate speed and at that time, a lorry bearing Registration No.KA-42-1026 came rashly and negligently in high speed from the back side and dashed against the rear portion of the TVS moped on which, the claimants were proceeding and as a result of the same, they fell down and sustained grievous injuries and immediately they were shifted to hospital for treatment and as such, the claim petitions came to be filed claiming compensation.
4. In pursuance to the notice, respondent No.1 remained absent and he was placed exparte. Respondent No.2 – Insurance Company appeared and filed written statement denying the averments of the petitions. It is contended that the driver of the offending vehicle was not possessed valid and effective driving license at the time of accident. It is contended that their liability to pay compensation is subject to the terms and conditions of the policy.
5. On the basis of the above pleadings, the Tribunal has framed the following issues:
1. Whether the petitioners prove that they sustained injuries in a road traffic accident which was occurred on 4.3.2008 at about 4.30 p.m. and BM road, in between Kalluge hosahalli and Dasappanadoddi was due to rash and negligent driving of the lorry No.KA-42-1026 by its driver?
2. Whether the petitioners are entitled for compensation? If so, at what amount and from whom?
3. What award or orders?
6. In order to prove the case, claimant in MVC No.7583/2008 came to be examined as PW1 and claimant in MVC NO.7584/2008 came to be examined as PW2 and got marked the documents as Exs.P1 to P16. On behalf of respondent No.2, they have not led either oral or documentary evidence. After hearing the parties, the Tribunal awarded an amount of Rs.2,39,800/- in MVC No.7583/2008 and Rs.10,000/-
globally in MVC No.7584/2008.
7. Assailing the judgment and award passed by the Tribunal, the appellants/claimants are before this Court.
8. The main grounds urged by the learned counsel for the appellants are that the Tribunal has not taken into consideration the evidence of doctor – PW3. He further contended that the claimant/appellant in MFA No.7583/2008 has sustained multiple fractures of frontal bone, nasal bone, ethmoid and maxilla. The doctor has categorically deposed that the claimant has suffered 15% disability. But the Tribunal has taken 10% disability and has awarded compensation of Rs.46,800/- under the head `loss of future earnings’ due to disability. He further contends that taking into consideration the injuries and other treatment, the compensation awarded under other heads is also on the lower side and as such, he prays for enhancement of compensation. He further contends that the claimant in MVC No.7584/2008 has sustained acromio clavicular joint dislocation. Even though the doctor has not been examined, the Tribunal has not considered the same and awarded only a sum of Rs.10,000/- as global compensation. Therefore, the same requires enhancement. On these grounds, he prays for allowing both the appeals.
9. Per contra, learned counsel appearing for respondent No.2-Insurance Company has vehemently argued and contended that the compensation awarded in both the petitions is just and proper. Therefore, he requests to confirm the judgment and award by dismissing the appeals.
10. The accident in question, so also the offending vehicle insured with respondent No.2 - Insurance Company is not in dispute.
11. As could be seen from the judgment and award of the Tribunal, the claimant in MVC No.7583/2008 has sustained injuries on his upper lip, front of forearm, forehead, jaws, three teeth fell down at the spot and nasal bone was fractured and many other injuries all over the body and immediately he was shifted to Shreya hospital wherein he was treated as inpatient from 4.3.2008 to 29.3.2008 and also taken treatment for about two months. Even the doctor who came to be examined as PW3, has deposed the injuries sustained by the claimant as under:
“............ he sustained head injury, loss of consciousness, sluggishly reactive pupils and uncontrolled convulsions, facial swelling, pain and two sutured wounds over face, fracture of mandible with loss of three teeth, CT scan showed diffuse cerebral edema, contusion of right cerebral hemisphere 3.3 x 3.1 cms, extra dural haematoma over right frontal region 8 mm thick, subdural haematoma over right tentorium 9 mm thick, diffuse sub arachnoid hemorrhage, multiple fractures of frontal bone, nasal bone, ethmoid and mxilla..”
The appellant/claimant in MFA No.4763/2008 was operated on 21.3.2008 with refracture of malunited mandible, ORIF and plate and screw fixation and discharged on 29.3.2008. He has further deposed that there is disfigurement and weakness of right side of face, difficulty in biting, headache, giddiness, irritability, memory loss, episodes of black outs. So he assessed the permanent physical functional and mental disability at 15%. Though the doctor – PW3 has assessed the disability at 15%, the Tribunal without justifying the same has taken 10% disability and awarded an amount of Rs.46,800/- towards `loss of future earning’. Though the accident in question is of the year 2008, the Tribunal has taken notional income of Rs.3,000/- p.m. instead of Rs.4,250/- p.m, which will be adopted in settlement before the Lokadalath. If the income is taken at the rate of Rs.4,250/- p.m, I think it appears to be just and proper to apply the same and assess the future earning. In that view of the matter, claimant is entitled to an amount of Rs.99,450/- (4,250/-x15/100x12x13) towards `loss of future earning’ due to disability. Even as could be seen from the records, the Tribunal has awarded an amount of Rs.9,000/- towards `loss of income during the laid up period’. If the income of Rs.4,250/- p.m. is taken for three months, the amount would come to Rs.12,750/- under the said head. Even as could be seen from the judgment and award, the claimant has sustained injuries as mentioned above and there is disfigurement and weakness of right side of face, difficulty in biting, headache and giddiness, irritability, memory loss, episodes of black outs. Even he has lost the teeth and fixation of artificial dentures has to be made in the place of lost tooth. In such circumstances, the compensation of Rs.30,000/- awarded under the head `pain and suffering’ appears to be on the lower side. In that light, it has to be enhanced to Rs.50,000/- under the said head. Even the compensation awarded under the head `loss of future amenities and happiness’ when the claimant has sustained permanent physical functional and mental disability, weakness of right side of face, difficulty in biting, chewing, in such circumstances, there will be some `loss of future amenities’. In that light, claimant is entitled to a sum of Rs.50,000/- under the said head. As could be seen from the records, the Tribunal after considering the fact that the claimant has produced the medical bills and prescriptions – Exs.P7 and 8 has awarded a sum of Rs.1,29,000/-. The said compensation appears to be just and proper and the same does not require for interference at the hands of this Court. But however, the doctor – PW3 has specifically mentioned during his evidence that an amount of Rs.20,000/- is required for the purpose of removal of plates and screws and fixation of artificial dentures in the place of lost tooth, but the Tribunal has awarded a sum of Rs.10,000/-, which is on the lower side. In that light, the claimant is entitled to an amount of Rs.20,000/- under the head `future medical expenses’. As could be seen from the judgment and award, the Tribunal has not taken into consideration the fact that claimant was admitted to the hospital, he must have taken treatment for a period of three months and during the said period, he might have engaged some attendant and might have spent some amount on food and other incidental charges. But the Tribunal has not awarded any amount under the said head. In that light, the claimant is entitled to an amount of Rs.15,000/- under the head `food, attendant and incidental charges’ and the same appears to be just and proper.
12. Taking into consideration the above said facts and circumstances, after deducting a sum of Rs.2,39,800/- awarded by the Tribunal, the appellant/claimant in *MFA No.4762/2010 is entitled to * Corrected vide Chamber Order dated 20.1.2018 an additional sum of Rs.1,36,400/- with interest at 6% p.a. from the date of petition till realization.
13. Accordingly, *MFA No.4762/2010 is allowed.
The judgment and award passed by the Tribunal in MVC No.7583/2008 is modified as indicated above.
14. As could be seen from the contents of claim petition in MVC No.7584/2008, the claimant has sustained tender swelling over left shoulder joint, x-ray shows acromio clavicular joint dislocation as per Ex.P9, but however, in order to substantiate the said fact, the claimant has not produced any substantial materials to prove the same. But however, the Tribunal taking into consideration the medial bills and the injuries and other aspects, has awarded global compensation of Rs.10,000/- and when there is no material to show the dislocation and there is any future difficulties in the said shoulder joint. In such circumstances, I feel that there are no good grounds to enhance the compensation * Corrected vide Chamber Order dated 20.1.2018 awarded by the Tribunal. Hence, I do not find any merit in *MFA No.4763/2010 and the same is liable to be dismissed and accordingly, the appeal is dismissed.
Respondent No.2 – Insurance Company is directed to deposit the compensation awarded by the Tribunal and the additional compensation awarded by this Court with interest at 6% p.a. within six weeks from the date of receipt of the certified copy of this judgment.
Registry is directed to draw the award accordingly.
Sd/- JUDGE Bkm.
* Corrected vide Chamber Order dated 20.1.2018