IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL MISCELLENEOUS FIRST APPEAL NO.10667/2012 (MV) BETWEEN:
Kum.Rachana D/o Manjunath Aged about 22 years Teacher, R/o Maddikere Halekere Village Mudigere Taluk 577 001 Chikamagalur District ….Appellant (By Sri Vinod Gowda, Advocate) AND:
1. Manjunath S/o Dibbaiah Aged about 52 years R/o Maddikere, Halekere Village Mudigere Taluk 577 001 Chikamagalur District Driver of Maruthi Car Bearing Reg. No.KA-18/4435 FDL No.5346/2007 2. Kum.Deepika D/o Erappa Aged about 24 years Teacher, House No.57 Housing Board Extension Mudigere 577 001 Chikamagalur District Owner of Maruti car Bearing Reg No.KA-18/4435 3. The Branch Manager New India Assurance Co. Ltd., Branch Office, Panduranga Complex K.T.Street, Chikmagalur 577 001 Policy No.570604/31.8.01/00003210 Valid from 22.10.2008 to 21.10.2009 4. C.N.Laxminarayana S/o A.G.Narayana Nayak Rajathadri Nilaya, Kandal Extension Kote, Chikmagalur 577 001 ….Respondents (By Sri R.JaiPrakash, Advocate for R3, R1,R2 and R4 served) This MFA is filed under Section 173(1) of MV Act against the Judgment and award dated:26.06.2012 passed in MVC No.59/2010 on the file of the Principal District Judge, MMACT, Chikmagalur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal having been heard and reserved for Judgment on 22.09.2017 and coming on for Pronouncement of Judgement this day, K.S.Mudagal, J., delivered the following:
JUDGMENT This claimant’s appeal arises out of the judgment and award dated 26.06.2012 passed by the Principal District Judge and JMFC, Chikmagalur in MVC No.59/2010. By the impugned Award, the Tribunal has granted compensation of Rs.60,500/-.
2. On 14.09.2009, at 5.30 a.m., the appellant and her colleague A.M.Erappa, after attending Teachers’ Selection Examination were returning from Gangavathi to Mudigere in Maruthi Car bearing No.KA-18/4435. When they were proceeding near Buntara Bhavana of Mugthihalli Village, due to rash and negligent driving by its driver, the car hit the road side tree and met with an accident. The appellant and her colleague suffered injuries in the accident. Respondent No.2 is the owner of the vehicle. Respondent No.3 is the insurer of the offending vehicle.
3. The appellant and A.M.Erappa filed MVC No.59/2010 and MVC No.14/2010 respectively contending that the accident occurred due to rash and negligent driving of the car by the first respondent. They further contended that in the accident, they suffered injuries and consequent disability. The present appellant, in her petition namely MVC 59/2010 claimed compensation of Rs.3.00 Lakhs.
4. The respondents filed their objection statement to the petition. However, thereafter the insurer/respondent no.3 alone contested the matter. The insurer contested the petition denying the accident, age, occupation and the income of the appellant. The insurer further contended that there is breach of policy condition therefore it is not liable to pay compensation.
5. The parties adduced evidence. On behalf of the claimants, PWs.1 to 3 were examined and exhibits P.1 to P.17 were marked. The respondents did not adduce any oral evidence. However, the insurer got marked copy of the insurance policy at Exhibit R.1 and the owner of the vehicle got marked ‘B’ Register Extract at Exhibit R.2. The Tribunal after hearing the parties awarded compensation of Rs.60,500/- to the appellant/claimant on the following heads:
conveyance and other incidental expenses Total 60,500.00 6. Sri Vinod Gowda, learned Counsel for the appellant seeks to assail the Award on the following grounds:
(i) The Tribunal has not awarded any compensation on the head of loss of future earning;
(ii) The income of the claimant assessed by the Tribunal is on the lower side;
(iii) The compensation awarded on the other heads is also on the lower side.
7. Sri R.Jaiprakash, learned Counsel for respondent/insurer seeks to justify the award on the following grounds:
(i) The claimant has continued in her service. Therefore, there is no loss of earning or earning capacity;
(ii) The compensation awarded on other heads is based on the evidence adduced by the parties.
8. This appeal is confined to the Award in MVC No.59/2010. None of the respondents have challenged the findings on the occurrence of the accident or the rashness and negligence on the part of the first respondent/driver or the liability of the insurer. Therefore, the only question that arises for consideration in this appeal is whether the compensation awarded is just and proper?
Reg. Loss of future earning:
9. The petitioner in the petition contended that she suffered the following injuries:
(i) Fracture of right tibia (ii) Injuries on left side of the forehead and other parts of the body.
She claimed that she was first treated in Government Hospital, Chikmagalur and then treated as in-patient from 14.09.2009 to 23.09.2009 in M.G.Hospital, Chikmagalur.
10. To substantiate that contention, she produced Exhibit P.12, the Discharge Summary issued by the M.G.Hospital, Chikmagalur. As per the Exhibit P.12, the claimant has suffered the following injuries:-
1. Fracture tibia (RF).
2. Lacerated wound over scalp.
11. Exhibit P.12 shows that claimant was treated conservatively from 14.09.2009 till 23.09.2009 as inpatient. Claimant does not examine the doctor who treated her. She has no explanation for that. PW.3 is not the doctor who treated the claimant. According to his own version, he has examined the claimant on 02.02.2012 that is after 2 years and 3 months of the accident.
12. When Exhibit P.12 does not speak of any deformity PW.3 says that she had deformity of lower third of the right leg, wasting of the muscle and mal-united fracture. He claims that he gave Exhibit P.16 the Disability Certificate on the basis of his examination on 02.02.2012 and as per his assessment she has suffered permanent disability of 20% to the right leg and 10% to the whole body. Having regard to the entries in Exhibit P.12, the Discharge Summary and the Wound Certificate Exhibit P.10, apparently evidence of PW.3 smacks exaggeration. So also there is no proximity between the injuries as stated in Exhibit P.12 and the disability as stated by PW.3. Therefore, the Tribunal has rightly rejected his evidence regarding disability.
13. The evidence of the claimant shows that even after the accident, she continued her occupation as the teacher and carrying on the same. Therefore the Tribunal has rightly held that there is no loss of earning capacity or earnings. Therefore, the impugned Award on the head of loss of future earnings/earning capacity does not call for any interference.
Reg. Pain and Suffering:
14. Exhibit P.10 and P.12 show that the claimant has suffered fracture of tibia of right foot and one simple injury. Since the fracture is of weight bearing bone, the compensation of Rs.40,000/- has to be awarded for such injury for pain and suffering. For simple injury, the Tribunal has awarded Rs.3,000/-. Therefore, the compensation payable on the head of pain and suffering is Rs.43,000/-.
Reg. Food, Nourishment and attendant’s charges:
15. The claimant was hospitalized for 10 days. Therefore the Tribunal ought to have awarded compensation on this head at least at the rate of Rs.500/- per day which comes to Rs.5,000/-.
Reg. Loss of earning during laid-up period:
16. The Tribunal has awarded Rs.12,000/- as loss of income during the laid up period. The claimant has not adduced any evidence in proof of her actual income. Therefore, the Tribunal has rightly assessed her income notionally at Rs.6,000/- per month since the accident has occurred in the year 2009. The claimant did not adduce any evidence to show that she did not attend her duties for three months. Having regard to the nature of the injuries and the entries in Exhibit P.12, the Tribunal is justified in holding that she is entitled to two months’ salary as loss of income during laid up period.
Medical Expenses and Loss of amenities:
17. The compensation awarded on the heads of medical expenses, loss of amenities and happiness is based on the evidence and therefore, does not call for interference.
18. For the aforesaid reasons the compensation payable to the claimant is re-assessed as follows:-
Pain and suffering Rs.43,000.00 Loss of Income during the period of treatment Loss of amenities and enjoyment in life Rs.12,000.00 Rs.20,000.00 Medical Expenses Rs. 3,000.00 Food, nourishment & attendant’s charges Rs. 5,000.00 Total Rs.83,000.00 Compensation awarded by the Tribunal Rs.60,500.00 Enhanced Compensation Rs.22,500.00 Therefore, the appeal is allowed in part. The impugned Award is hereby modified. The compensation awarded is enhanced to Rs.83,000/-. The third respondent is hereby directed to satisfy the compensation awarded with interest at 6% p.a. from the date of the petition till its realization. The rest of the award is maintained. Statutory deposit if any shall be transmitted to the Tribunal forthwith. No order as to costs.
Sd/- JUDGE nv