IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No. 5321/2012 (MV) BETWEEN:
KUM. J.V. SUVARNA D/O. VEERACHINNAPPA AGED ABOUT 24 YEARS R/AT JANGALAHALLI VILLAGE HIRENAGAVALLI POST SOMENAHALLI HOBLI GUDIBANDA TALUK CHICKBALLAPUR DISTRICT. … APPELLANT (BY SMT. SUGUNA R. REDDY, ADV.) AND:
1. SRI. AMANULLA S/O. ABDUL AZIZ SAB MAJOR IN AGE.
R/AT VIJAYAPURA TOWN DEVANAHALLI TALUK BENGALURU RURAL DISTRICT-135.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., No.25, SHANKARANARAYANA BUILDINGS M.G. ROAD BENGALURU-560 001. ... RESPONDENTS (BY SRI. K. SURESH, ADVOCATE FOR R2 VIDE ORDER DATED 10.12.2015, NOTICE TO R1 IS DISPENSED WITH) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.10.2010 PASSED IN MVC.NO.6198/2007 ON THE FILE OF THE CHIEF JUDGE AND PRINCIPAL MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the quantum of compensation awarded by the Tribunal in MVC No.6198/2007 dated 30.10.2010 on the file of Principal MACT, Bengaluru on the ground that the compensation awarded is very meagre.
2. The brief facts of the case is that on 8.5.2007, the petitioner was returning from Vijayapura to her Village in Maxicab bearing registration No.KA.03/A.2248 as a passenger. While she was getting down from the Maxicab near Chinuvandanahalli Gate at about 11.30 a.m., the driver suddenly moved the vehicle all of sudden without giving any signal or caution to the passengers. As a result, the petitioner fell down and sustained injuries and she claimed compensation of Rs.5,00,000/- from respondents No.1 and 2.
3. In response to the notice, respondent No.1-the owner of the Maxi Cab remained absent and as such, he has been placed exparte. Insurance Company in its written statement contended that the accident has occurred due to negligence on the part of the claimant herself. The claimant has to prove her avocation and income and that the driver of the maxi cab was not having a valid driving license.
4. The claimant, in order to substantiate her claim examined herself as P.W.1 and got marked documents Exs.P.1 to P17. On the other hand respondent-Insurance Company has not examined any witnesses.
5. The Tribunal, considering both oral and documentary evidence, allowed the petition in part and awarded compensation of Rs.40,505/-. Hence, the present appeal is filed by the claimant questioning the amount of compensation awarded under all heads claiming that the same is meager and has not awarded just and reasonable compensation.
6. Learned counsel appearing for the claimant also contended that the claimant is 19 years old and has suffered three injuries i.e., head injury, diffuse cerebral edema, right ear conductive deformity and right shoulder joint dislocation. She was inpatient for a period of 24 days and she was subjected to surgery. Though doctor has not been examined, the Court ought to have taken note of nature of the injuries suffered and awarded the compensation. The Tribunal considered only the part of the medical bills to the tune of Rs.3,505/- but not considered the medical bills to the tune of Rs.8,000/-, which she has spent when she was subjected to surgery. The same was rejected with a reason that there are corrections in the said bill and the Tribunal awarded only Rs.25,000/- under the head ‘injury, pain and suffering’ and has taken only Rs.3,000/- as her monthly income and awarded the compensation under the head ‘loss of income during the laid up period’ for a period of three months. The Tribunal awarded only an amount of Rs.1,000/-
under the head ‘conveyance charges’ and has not awarded the compensation under the marriage prospects and other heads. Hence, it requires interference of this Court.
7. Learned counsel appearing for the respondent- Insurance Company in his arguments contends that in order to prove the nature of injuries and also disability, the claimant has not examined any doctor. The claimant has relied upon the particulars of Ex.P.13 and Ex.P.14 so also Ex.P.17 but however, the same has not been proved by examining the author of the said documents. The Tribunal, after considering the corrections in Ex.P.17, has allowed the claim of the claimant. Hence, the question of awarding the compensation towards future loss of income does not arise in the absence of medical evidence. The Tribunal after considering the case of the claimant, and both oral and documentary evidence, has awarded the just and reasonable compensation. Hence, there are no grounds to interfere with the award of the Tribunal.
8. Having heard the arguments of the appellant’s counsel and also the learned counsel appearing for the respondent-Insurance Company and also considering the rival contentions of the parties, the points that arise for consideration of this Court are:-
1. Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and it requires interference of this Court?
2. What order?
9. Points No.1 and 2:- Having considered the contentions urged in the appeal memorandum and also oral arguments of the appellant’s counsel and so also the respondent’s counsel, there is no dispute with regard to the accident. This appeal is filed only with regard to the quantum of compensation awarded by the Tribunal. The main grounds urged by the claimant before this Court is that the Tribunal has awarded only an amount of Rs.25,000/- under the head ‘pain and sufferings’, which is very meagre. On perusal of wound certificate which is marked at Ex.P.3, it discloses that the claimant has suffered three injuries i.e., head injury with diffuse cerebral edema, right ear conductive deformity and right shoulder joint dislocation and it also discloses that the claimant was admitted to hospital on 8.5.2007 and discharged on 30.5.2007. At the first instance, the claimant was admitted to Chikkaballapura Government Hospital and she was inpatient in the said hospital for a period of 22 days and thereafter, at the reference of the hospital, she came and took treatment in connection with injury to ear at Shravana ENT Care Center as per the audiological report marked at Ex.P.9. Ex.P.13 and Ex.P.14 also discloses that she was subjected to surgery at Shravana ENT Care Center and she was discharged on 8.7.2007.
10. The claimant, though marked these documents, not examined the author of the documents Ex.P.13 and Ex.P.14. On perusal of Ex.P.17-the bill, it was issued by Shravana ENT Care Center, for which, she was subjected to surgery and collected the amount of Rs.8,000/- from the claimant. The document Ex.P.17 is also not proved by examining any of the official of the hospital or the author of the said document. The Tribunal did not consider Ex.P.17, since there was a correction in the said document. On perusal of Ex.P.17, it is evident that though there is a correction, the hand writing of the said correction and also the hand writing of the amount mentioned in the letter is one and the same and also by the very same pen. Hence, merely because there are some corrections on Ex.P.17 and it is erased, the Tribunal ought not to have disregarded the document Ex.P.17. The other documents also clearly disclose that the claimant was referred to higher center for treatment to the injuries sustained by her in respect of her ear. Ex.P.9 supports the claim of the claimant that she was referred to higher center i.e., special center for treating in respect of her ear. The documents also disclose that she was admitted to Shravana ENT Care Center and took treatment on 7.7.2007 and 8.7.2007 and subjected for surgery. Hence, I am of the opinion that the Tribunal has committed an error in not considering Ex.P.17 and it requires interference of this Court. Accordingly, an amount of Rs.8,000/- is awarded under the head ‘medical expenses’.
11. On perusal of Ex.P.3-wound certificate, it clearly discloses that she was inpatient for a period of 22 days and she suffered head injury, injury to her right ear and right shoulder dislocation. The Tribunal has awarded an amount of Rs.25,000/- under the head ‘injury, pain and suffering’ and the accident was taken place in the year 2007. When she has sustained head injury and was inpatient in the hospital for a period of 22 days at the first instance and for 2 days at the time of surgery, the Tribunal ought to have taken note of the same and awarded the compensation under the head ‘injury, pain and suffering’ but has erred in awarding an amount of Rs.25,000/-,which is on the lower side. Hence, the same requires to be enhanced to Rs.40,000/- keeping in view of the fact that the accident is of the year 2007. Accordingly, Rs.40,000/- is awarded under the head ‘injury, pain and suffering’ as against Rs.25,000/-.
12. The Tribunal has erred in awarding an amount of Rs.9,000/- under the head ‘loss of income during the laid up period’ without noticing the fact that she was inpatient for a period of 24 days and she suffered head injury, right ear conductive deformity and right shoulder joint dislocation. When the document Ex.P.3 discloses that she took treatment for a period of 22 days at the first instance and she was inpatient for 2 days at the time of surgery at Shravana ENT Care Center, the Tribunal ought to have taken note of long period of treatment and the accident being taken place in the year 2007. In the absence of any documentary proof with regard to the income, the Tribunal ought to have taken Rs.4,000/- as notional income. Hence, considering the long period of treatment and also the nature of injuries she had suffered i.e., head injury, the Tribunal ought to have taken five months as the laid up period instead of three months. Taking into consideration of the laid up period for five months, compensation of Rs.20,000/- is awarded under the head ‘loss of income during the laid up period’ as against Rs.9,000/-.
13. The Tribunal has awarded an amount of Rs.1,000/- under the head ‘attendant charges’. When the document discloses that she was inpatient for a period of 24 days and aged about 19 years at the time of accident, the Tribunal, without taking note of the said fact has granted Rs.1,000/- under the said head, which is on the lower side and also no amount has been awarded towards the amount spent for food and nourishment. Hence, taking into consideration of food, nourishment and the attendant charges for a period of 24 days, it is appropriate to award an amount of Rs.12,000/- under the head ‘food, nourishment and attendant charges’ as against Rs.1,000/-.
14. The Tribunal has awarded an amount of Rs.2,000/- under the head ‘conveyance charges’. When the claimant was in hospital for a period of 22 days and took treatment at Chikkaballapura Government hospital and then took treatment at NIMHANS hospital and later, was inpatient for 2 days at Shravana ENT Care Center for surgery, the Tribunal ought to have taken note of the said fact and circumstances and awarded compensation, but has erred in awarding compensation only to the tune of Rs.2,000/-, which is on the lower side. Hence, the compensation under the head ‘conveyance charges’ requires to be enhanced to Rs.10,000/- as against Rs.2,000/-. Accordingly, the same is modified.
15. No doubt, the claimant has not adduced any evidence with regard to the disability and the Tribunal has also not considered any future income in the absence of medical evidence. However, this Court can consider the future income in the absence of medical evidence considering the injuries sustained by the claimant. Taking note of the fact that in the absence of medical evidence, the Court can award compensation under the head ‘loss of disability’ and also considering treatment being provided for a period of 24 days so also the injury sustained by the claimant to her head, it is appropriate to award an amount of Rs.50,000/- under the head ‘loss of disability’. Accordingly, compensation of Rs.50,000/- is awarded under the head ‘loss of disability’.
16. In view of the discussions made above, I pass the following ORDER (i) The appeal is allowed in part.
(ii) The judgment and award passed in MVC No.6198/2007 dated 30.10.2010 by Principal MACT is modified granting an additional compensation of Rs.1,03,000/- with interest at the rate of 6% per annum.
(iii) The respondent-Insurance Company is directed to pay the amount of compensation granted to the claimant within a period of 8 weeks from today.
(iv) Registry is directed to transmit the amount in deposit, if any, to the Tribunal forthwith.
Sd/- JUDGE PYR