IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.437/2015 (MV) BETWEEN:
SMT K SHOBHA W/O C GURUMURHY AGED ABOUT 39 YEARS R/O # 20, BDO QUARTERS, BACK SIDE TO POLICE COLONY MANDYA CITY ... APPELLANT (BY SRI.BHUSHANI KUMAR, ADV. AND 1. CHAND PASHA S/O MOHIN KHANA MAJOR R/O NO. 387, 7TH CROSS TILAKA NAGAR, JAYANAGA, BANGALURU 2. THE AUTHORIZED SIGNATORY TATA AIG GENERAL INSURANCE CO LTD., 2ND FLOOR, AP AND DEVI JAMBU KESHAVA ARCADE, NO. 69, MILLERS ROAD BANGALURU-32 ... RESPONDENTS (BY SMT. RAVI S SAMPRATHI, ADV. FOR R2 R1 – NOTICE DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.09.2014 PASSED IN MVC NO.468/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant challenging the judgment and award dated 26.9.2014 passed by the Prl. Civil Judge (Sr.Dn.) & MACT, Mandya in MVC 468/2009.
2. Brief facts of the case:
On 4.7.2009, when the claimant was riding TVS moped bearing Registration No.KA-05-V-541 on the left side of the road slowly and cautiously from Bangalore Railway Station Road side towards her father’s house at Gayathrinagar via Vattal Nagaraj Road and near Okalipuram RRR junction traffic signal, Sriramapuram, Bangalore, at that time, an autorickshaw bearing Registration No.KA-05-AA-8140 came in a rash and negligent manner and dashed against her moped. As a result, she fell down sustained injuries and immediately he was shifted to the KC General hospital. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support her case, she examined himself as PW-1, Dr.Krishna Prasad as PW-2, and one witness as PW-3 and submitted 42 documents. On the other hand, the Insurance Company has examined two witnesses RWs-1 and 2 and produced 8 documents. Material object i.e., implants is marked on behalf of the claimant as M.O.1. After appreciation of the evidence, the Tribunal granted compensation of Rs.3,23,440/- with interest at 6% p.a. Being aggrieved by the same, the claimant has filed the present appeal.
3. The learned counsel for the claimant has raised the following contentions:
Firstly, at the time of the accident, the claimant was aged about 33 years and she was working as SDA at District and Sessions Court, Mandya and earning Rs.8,594/- per month. Due to the accident, she has sustained lacerated wound on medial side of left lower limb and tenderness over the left elbow joint. She has examined the doctor and as per the evidence of the doctor the claimant has suffered 67% disability to left lower limb and 23% to whole body. But the Tribunal is not justified in granting meager compensation of Rs.30,000/- towards "pain and sufferings" and Rs.30,000/- towards "loss of amenities".
Secondly, the claimant was treated as inpatient for a period of 28 days and she has taken treatment even as out patient. She was on leave for a period of 1 year 7 months and 16 days. But, the Tribunal considering the absence of claimant for 313 days as LWA, has granted Rs.87,640/- towards “loss of earnings during treatment period”. The Tribunal has not granted compensation for the remaining period of leave of 281 days (85 days of earned leave + 196 days of extra ordinary leave) availed by the claimant.
Thirdly, as per the evidence of PW-2 the claimant would require around Rs.50,000/- towards "future medical expenses" for removal of implants. But the Tribunal is not justified in granting only Rs.25,000/- under the said head.
With this, the learned counsel for the claimant prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company submits that the fracture sustained by the claimant is united and the Tribunal is justified in granting just and reasonable compensation under the heads "pain and sufferings" and "loss of amenities". Further, the claimant has been reimbursed the medical bills and the compensation granted under the head of "future medical expenses" is just and reasonable. With this, the learned counsel for the Insurance Company prays for dismissal of the appeal.
5. Heard the learned counsel for the parties.
Perused the records.
6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 4.7.2009 due to rash and negligent driving of the offending vehicle.
7. As per wound certificate, the claimant has sustained lacerated wound on medial side of left lower limb and tenderness over the left elbow joint. The claimant was treated as inpatient for a period of 28 days. Considering the nature of injuries, compensation of Rs.30,000/- granted by the Tribunal under the head "pain and sufferings" is on the lower side and therefore, the same is enhanced to Rs.60,000/-.
8. PW-2, the doctor in his evidence has stated that there is shortening of 2 inches of left limb. Due to the injuries sustained, the claimant is not in a position to do her routine work. Further, he has stated that the claimant has suffered 67% disability to left lower limb and 23% to whole body. Hence, considering the nature of injuries and an amount of discomfort and unhappiness, the claimant has to undergo in her life, this Court enhances the compensation from Rs.30,000/- to Rs.55,000/- under the category of "loss of amenities".
9. The claimant has undergone surgery and she was inpatient for a period for 28 days and she has also taken treatment as outpatient. She has availed leave for a period of 1 year 7 months 16 days. The Tribunal has taken into consideration the period of absence of claimant as 10 months 13 days i.e., 313 days as LWA and has awarded compensation of Rs.87,640/- towards “loss of earnings during treatment period”. For remaining 281 days, the claimant has not been awarded any compensation. In view of the admitted fact that the claimant has availed leave for a period of 1 year 7 months 16 days, the compensation for remaining 281 days has to be granted. Accordingly, the claimant is entitled to receive a compensation of Rs.78,680/- (Rs.280/- per day X 281 days). Thus, the total compensation under the head “loss of earnings during treatment period” comes to Rs.1,66,320/- (Rs.87,640 + Rs.78,680/-) 10. PW-2 in his evidence has stated that the claimant requires an amount of Rs.50,000/- towards "future medical expenses" for removal of implants. But the Tribunal has granted compensation as merely as Rs.25,000/-. Therefore, this Court enhances the compensation from Rs.25,000/- to Rs.50,000/- under this head.
11. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 26.9.2014 passed by the Prl. Civil Judge (Sr.Dn.) & MACT, Mandya in MVC 468/2009, stands modified. The claimant is entitled to receive the following compensation:
12. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying her identity.
Sd/- JUDGE DM