IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.11474/2012 (MV) BETWEEN:
SMT. KANGIRA SHOBHA, AGED ABOUT 38 YEARS, W/O. SATHISH, KADANGAMURUR VILLAGE, S. KODAGU. … APPELLANT (BY SRI K.S. BHEEMAIAH, ADVOCATE) AND:
1. SRI. B.N. ARUNA KUMAR, AGED ABOUT 30 YEARS, S/O SUBRAYA SHETTY, BYPASS ROAD, SANIVARASANTHE, N. KODAGU.
2. KODIRA UMESH PALANGAPPA, AGED ABOUT 50 YEARS, S/O. UTHAPPA, KONAJAGERIYIL, PARANE POST, MADIKERI TALUK, N. KODAGU.
3. THE NEW INDIA ASSURANCE COMPANY LIMITED, MADIKERI BRANCH, COFFEE KRIPA BRANCH, M.G. ROAD, MADIKERI-571 201. ... RESPONDENTS (BY SRI K. POORNABODHA RAO, ADVOCATE FOR R-3, R-1 AND R-2 ARE SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.09.2012 PASSED IN MVC.NO.117/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, VIRAJPET, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant/claimant challenging the judgment and award passed by the Tribunal in M.V.C.No.117/2011 dated 29.9.2012, on the file of the Senior Civil Judge, MACT at Virajpet, questioning the quantum of compensation on the ground that the compensation awarded is very meager.
Brief facts of the case:
2. It is the case of the claimant that she is a housewife living with her family and her husband is a planter and businessman. That on 9.5.2011, she was going to Virajpet from her house to attend driving class of four wheeler in bus bearing No.KA-20-A-3793 owned and driven by the respondent No.1. The respondent No.1 was driving the same in a rash and negligent manner and when the bus reached Udayanda Motte in Arameri Village, the claimant was thrown out of the bus and she fell on the road. Due to the impact, she sustained grievous injuries. Immediately she was shifted to Virajpet Civil Hospital and thereafter she was shifted to Thejasvini Hospital in Mangalore and she took treatment from 9.5.2011 to 23.5.2011 and she is still taking the treatment. She is unable to do any work. Hence, claimed the compensation.
3. The respondent Nos.2 and 3 appeared and filed the written statement denying the averments made in the claim petition. The respondent No.1 remained absent. The claimant in order to substantiate her claim, examined herself as P.W.1 and examined her husband as P.W.2 and also got marked the documents at Exs.P.1 to 7. The respondents did not choose to lead any evidence, however Exs.R.1 to 3 are marked. The Tribunal considering both oral and documentary evidence, allowed the claim petition partly, granting compensation of Rs.1,58,980/- with interest at 6% per annum. Hence, the present appeal is filed before this Court contending that the compensation awarded by the Tribunal is very meager. The Tribunal did not consider the evidence of the doctor in its proper perspective and the compensation awarded by the Tribunal under all the heads is very meager. Due to the disability suffered, the claimant is unable to do any work and the Tribunal only awarded global compensation of Rs.50,000/- under the head permanent disability.
4. The learned counsel for the respondent No.3 in his argument contended that the Tribunal considering the material available on record and properly appreciating both oral and documentary evidence, awarded just and reasonable compensation. Hence, it does not require any interference of this Court.
5. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent No.3, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
(ii) What order?
6. The short question before this Court is whether the Tribunal has awarded just and reasonable compensation or not. It is the claim of the claimant that the claimant is a housewife and her husband is a planter and a businessman. When she was proceeding in the bus to attend the driving class, due to rash and negligent driving of the bus, she was thrown out. As a result, she sustained the fracture and she is unable to do any work. On perusal of Ex.P.4 – doctor’s certificate, it is evident that she has sustained the fracture of femur. The fracture is also united. However, there is stiffness and restrictions in her left hip. The doctor assessed permanent disability of 10% of left lower limb and also says that she requires one more surgery for removal of implant which would cost about Rs.25,000/-.
7. The Tribunal considering both oral and documentary evidence placed on record, awarded compensation of Rs.20,000/- under the head pain and suffering, which appears to be on the lower side. The claimant has suffered the fracture of femur and the accident had occurred in the year 2011. Hence, an amount of Rs.30,000/- is awarded under the head pain and suffering as against Rs.20,000/-.
8. The Tribunal awarded an amount of Rs.57,980/- under the head medical expenses based on documentary evidence. Hence, it does not require any interference.
9. The Tribunal awarded an amount of Rs.6,000/- under the head attendant charges, food and nourishment and Rs.10,000/- towards conveyance charges. The learned counsel for the appellant would contend that the same is very less as the accident had taken place in Virajpet and thereafter the claimant was shifted to Mangalore for treatment. The bill is also produced for having paid Rs.20,000/- for conveyance charges to take the injured to Mangalore from Virajpet. Though the documents of receipt is produced before the Tribunal as Ex.P.7, the author has not been examined. Having considered that the accident had taken place at Virajpet and later she was shifted to Mangalore and she was in hospital for a period of 15 days, it is appropriate to enhance the same to Rs.30,000/- as against Rs.16,000/- under the head attendant charges, food and nourishment and conveyance charges..
10. The Tribunal awarded an amount of Rs.50,000/- as global compensation under the head permanent disability. The disability certificate is clear that she suffered 10% disability to particular limb. When such being the case and when the femur is united, the Tribunal ought to have considered the disability certificate with regard to restricted stiffness of left hip and also restriction of 10% of movement. When the doctor himself certifies that disability amounts to 10% of left lower limb, the Tribunal ought to have considered the same and assessed the future loss of income. Though the doctor has deposed disability of 10%, this Court cannot ignore the fact that the claimant has suffered fracture of left femur. When such being the case, this Court has to take the disability of 10% to the whole body and not as lower limb. The doctor has erred in assessing the permanent disability when there was a fracture of left femur. He assessed 10% of disability to the left lower limb and this Court cannot accept the same. Hence, the disability is taken as 10% to the whole body. No doubt the claimant is a housewife and when the claimant is a housewife, the Court cannot ignore the work of a housewife and notional income has to be taken. The accident had taken place in the year 2011. It is appropriate to take Rs.5,000/- per month as the income of a housewife. Having considered the medical evidence and taking disability of 10% to whole body and taking the relevant multiplier ‘15’, the claimant is entitled for a compensation of Rs.90,000/- under the head loss of future income (Rs.5,000/- x 12 x 15 x 10/100 = Rs.90,000/-).
11. The claimant was in the hospital for a period of 15 days. She has suffered fracture of femur and it requires three months to unite the fracture and also she is in need of rest. The Tribunal has not awarded any compensation under the head loss of income during laid up period. Hence, taking the income as Rs.5,000/- per month, it is appropriate to award the same for a period of four months. It is appropriate to award an amount of Rs.20,000/- under the head loss of income during laid up period.
12. The Tribunal has not awarded any amount under the head loss of amenities. The doctor has deposed disability and when this Court has taken 10% disability, when such being the case, she has to lead her rest of life with the disability. Hence, it is appropriate to award an amount of Rs.20,000/- under the head loss of amenities.
13. The Tribunal awarded an amount of Rs.15,000/- under the head future medical expenses. The doctor certifies that the claimant was subjected to surgery and there was an implant in situ and it costs Rs.25,000/- for removal of the implant. The accident occurred in the year 2011 and removal of implant in situ requires a surgery and cost assessed by the doctor Rs.25,000/- is not supported by any documents. However, taking into consideration the cost of surgery, it is appropriate to award an amount of Rs.20,000/- under the head future medical expenses.
14. In view of the discussions made above, I pass the following:
(i) The appeal is allowed in part.
(ii) The judgment and award of the Tribunal is modified granting compensation of Rs.2,67,980/- as against Rs.1,58,980/- with interest at 6% per annum.
(iii) The Insurance Company is directed to pay the compensation amount within eight weeks from today.
(iv) The office is directed to send back the records forthwith.
Sd/- JUDGE MD