IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 6467 OF 2015 (M V) BETWEEN K. N. VENKATBHARADWAJ S/O NAGARAJ AGED ABOUT 21 YEARS R/O. D. NO. 339, ‘SUBRAMANYA NILAYA’ NEAR LAND ARMY OFFICE VIDYANAGAR HASSAN – 573201. ... APPELLANT (BY SRI.SUMANTH. L. BHARADWAJ - ADV.) AND 1. MADHUSUDHAN S/O S.R. SHIVABASAVAIAH MAJOR, R/O. 3RD MAIN, 2ND STAGE SANGAMESHWARA EXTENSION HASSAN – 573201.
2. THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO LTD., 1ST FLOOR, MANJUNATHA COMPLEX OLD BUS STAND ROAD HASSAN-573201. ... RESPONDENTS (BY SRI. K.N. SRINIVASA - ADV., FOR R-2; NOTICE TO R-1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.2.2015 PASSED IN MVC NO. 1136/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is posted for hearing on interlocutory application. With the consent of learned counsel for the appellant and learned counsel for the respondent No.2, the matter is taken up for final disposal.
2. The epitome of the appeal is as under:
It is stated in the claim petition that, on 07.12.2011 at about 01.30 pm, when the petitioner was proceeding to his friends’ house, on left side of the road, near Apoorva Hotel, opposite to Soundarya Beauty Parlor, SBG Theatre, Hassan, at the relevant point of time, the driver of Swift Car bearing registration No.KA- 13/P-0014 drove his car in a rash and negligent manner and dashed against the petitioner, as a result of which the petitioner sustained injuries and immediately, was shifted to CSI Hospital, Hassan, wherein he took treatment as inpatient for one month. It is further averred that due to rash and negligent act of the driver of Swift car, accident occurred. The petitioner was a college going student studying in second year B.Com at BEGS College, Hassan. As petitioner was the bread earner of the family having passionate with the family members, but for the injuries sustained in the accident, the family members are put in depression. Though the petitioner was a student, he was working hard to look after his parents. He was earning Rs.15,000/- per month by giving tuition to the High School students. In addition he was earning Rs.5,000/- per month by milk vending business. Due to the injuries sustained in the accident, the petitioner has become permanently disabled. All these grounds are urged in the claim petition made before the Tribunal seeking compensation from the respondents.
3. In pursuance of service of notice to respondents, the first respondent said to be the owner of the offending vehicle and the second respondent said to be the insurance company of the offending Swift car bearing registration No.KA-13/P-0014, as the first respondent who has put in appearance through counsel that he did not file any objection to resist the claim petition made therein. Whereas, the second respondent who has put in appearance through the counsel filed written statement resisting the claim petition by denying all the contentions taken in the claim petition, in toto. All these grounds urged in the statement of objections in detail filed by the second respondent and sought for dismissal of claim petition.
4. Based upon the pleadings of the parties, the Tribunal has framed issues and gave finding by assigning reasons for granting compensation.
5. Subsequently, the petitioner/injured, in order to establish his case, examined himself as P.W.1. One Dr. Sri Ranga.N was examined as P.W.2. In support of his case, petitioner produced Exs.P.1 to P.16. The respondents did not come forward to let in any evidence and also not marked any documents to support their case.
6. On evaluation of thel evidence of P.Ws.1 and 2, so also documents Exs.P.4- wound certificate, Ex.P.10- MLC extract, said to be forwarded by the doctor to the concerned police for having initiated criminal case against the accused, Exs.P.11 to P16 said to be x-ray and other documents produced by the petitioner in order to establish his case against respondents seeking compensation, based upon the evidence, the Tribunal awarded compensation in a sum of Rs.1,71,000/- with interest at 6% per annum, which is incorporated in the operative portion of the order.
7. Learned counsel for the appellant contends that the Tribunal has erred in not properly appreciating the evidence on record in a proper perspective and the same has resulted in miscarriage of justice to the case of appellant. Further, the Tribunal failed to appreciate the evidence of PW.1 and PW.2 – Doctor which clearly reveals about the gravity of injury and disability. Further, the Tribunal erred in awarding inadequate compensation under the heads pain and sufferings, loss of amenities, income during laid up period and other heads. On all these grounds, learned counsel for the appellant seeks intervention of this court and prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent – insurer contends that the driver of the Swift car bearing Reg.No.KA-13-P-0014 was not holding valid and effective driving licence at the relevant point of time. Further, he contends that the liability of the insurer depends only upon the validity of the documents at the time of accident. Further, he contends that the claim made by the petitioner is high, excessive and exorbitant and that the tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal.
9. In the backdrop of the contentions taken by the learned counsel for the appellant as well as respondent – insurance company and on careful evaluation of the material on record, it is seen that the injured claimant had examined himself as PW.1 and in his evidence has reiterated the petition averments. He states that due to rash and negligent act of the driver of the above said Swift car, accident took place. In support of his claim, he has produced FIR, Hospital Intimation slip, complaint, wound certificate, spot mahazar, IMV Report, charge sheet as per Exs.P1 to P7. Further the Tribunal on perusal of documentary evidence has held that due to rash and negligent act of the driver of the Swift Car the accident has took place.
10. The appellant has sustained injuries such as abrasion over medial aspect mid 1/3rd right leg, tenderness, swelling and deformity of right leg and tenderness over right shoulder. In the wound certificate as per Ex.P4 it is mentioned that injury no.2 is grievous in nature and rests are simple in nature. In support of his claim, petitioner has examined Dr.Sri Ranga, Orthopedic Surgeon as PW.2 and he has opined that the petitioner has sustained injuries as shown in the wound certificate. He was treated as inpatient in the hospital from 7.12.2013 to 13.12.2013. He has assessed permanent disability of the petitioner at 29% with respect to his right lower limb. The case sheet, MLC extract and X-rays are marked as per Exs.P9 to P.16. The Tribunal while considering the evidence of PW.2 – Doctor held that there is functional disability of the petitioner at 9% to the whole body. Looking to the date of accident, age of the petitioner and his avocation, the Tribunal assessed Rs.4000/- as his monthly income and applying multiplier of 18, calculated loss of future earnings in a sum of Rs.77,760/- which appears to be lower on side. Having regard to the year of accident and the nature of injuries sustained by the petitioner and his avocation, the income of the petitioner is to be taken at Rs.8,000/-. Accordingly, the compensation towards loss of future earnings would be Rs.8000 x 9% x 12 x 18 =1,55,200.
11. Further, having regard to the nature of injuries sustained by the petitioner as per the wound certificate, the compensation awarded under pain and sufferings needs to be enhanced by another sum of Rs.15,000/-. Under the head loss of amenities and enjoyment in life, the Tribunal has awarded Rs.10,000/- which is inadequate. Hence, another sum of Rs.15,000/- is awarded under the said head. In so far as compensation of Rs.5,000/- towards conveyance, nourishment and attendant charges, the same requires enhancement and accordingly, a sum of Rs.5,000/- is awarded. In respect of compensation awarded in a sum of Rs.8,000/- towards loss of earning during the period of treatment and rest, which is also on lower side and the same needs enhancement. Hence, it is enhanced by another sum of Rs.32,000/- (Rs.8,000 x 4 months) by taking the income of the petitioner at Rs.8000/-.
12. In so far as compensation awarded by the Tribunal for future medical expenses in a sum of Rs.10,000/- is on lower side. As per the wound certificate at Ex.P4, and as per the opinion of Doctor, the petitioner needs another surgery for removal of implants. Keeping in view the said evidence, the same is enhanced by another sum of Rs.15,000/-.
13. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court
Conveyance, nourishment etc 5,000 10,000
For the reasons and findings as stated above, I proceed to pass the following:
ORDER Appeal is allowed in part. The impugned judgment and award dated 18.02.2015 passed by the Tribunal in MVC No.1136/2014, is hereby modified. The appellant is entitled to enhanced compensation of Rs.1,51,500/-, with interest @ 6% p.a. from the date of petition till realization.
The respondent-insurer shall deposit the compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to rate of interest and apportionment of deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE Kcm/dkb