IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY M.F.A.No.3851 OF 2010 (MV) BETWEEN:
Lakshmamma W/o Govindegowda Aged about 39 years Manchanahalli Kasab Hobli Hassan Taluk. ... Appellant (By Smt. Kavitha H.C., Advocate) AND:
1. The Branch Manager The New India Insurance Co. Ltd., Divisional Office Coffee Krupa Building Mahatma Gandhi Road Madikeri.
2. Smt. Jabeen Taj W/o Munavar, major Block No.10 Race Course Road Madikeri – 571 201. ...Respondents. (By Sri. Ashok N. Patil, Advocate for R1, Vide order dated 30.1.2012 service of notice to R2 held sufficient) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 23.12.2009 passed in MVC No. 1941/2006 on the file of Fast Track Court, and Additional MACT at Hassan, 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:
J U D G M E N T This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Presiding Officer and Addl. MACT, Fast Track Court, Hassan, (hereinafter for brevity referred to as ‘Tribunal’), by judgment and award dated 23.12.2009, passed in MVC No.1941/2006.
2. The summary of the case of the claimant in the Tribunal is that on 19.03.2000, at about 11.30 a.m., when she was proceeding by walk on the left side of the road on Manachanahalli village Gate, Belur, she was hit by a motor cycle bearing Registration No.KA-12/E-4256 due to rash and negligent riding by the rider of the vehicle. As a result of such accident, she sustained two fractures and other injuries and was admitted to the hospital. Claiming that she had taken treatment as an inpatient in the hospital and due to the accident, she is suffering from permanent disability which has prevented her from pursuing any avocation to earn her livelihood, the claimant has claimed a compensation of a sum of `1,50,000/- from the respondents holding them liable, being owner and insurer of the alleged offending motor vehicle.
3. Before the Tribunal, the claimant got herself examined as PW-1 and examined Dr.G. Madhusudan as PW-2 and got marked documents from Exs.P-1 to P-16. Neither any witnesses were examined nor any documents were marked on behalf of the respondents.
4. The Tribunal after hearing both side and analysing the evidence and the materials placed before it, has awarded the compensation under the following heads with the sum shown against them:
Amount (`)
5. The Tribunal awarded compensation of a sum of `1,01,000/- with interest at 6% per annum thereupon, holding the first respondent - owner of the offending vehicle to pay the said compensation. The petition filed against Respondent No.2 – Insurer stood dismissed. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking modification and enhancement of compensation awarded by the Tribunal.
6. Heard the arguments from both sides and perused the materials placed before this court.
7. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by her, has prayed for allowing the appeal.
8. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-owner of the offending vehicle to pay compensation to the injured claimant for the injuries sustained by her in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
9. The evidence of the claimant as PW-1 and that of Dr. G. Madhusudan as PW-2, the Wound Certificate at Exhibit P-2 and the Discharge Summary at Exhibit P-6 would go to show that in the accident in question, the claimant had sustained fracture of seventh rib on the right side and fracture of superior and inferior rami of Obturator ring on the left side. The Tribunal has awarded a compensation of a sum of `25,000/- towards ‘Pain and suffering’. However, considering the fact that she had sustained two grievous injuries in the form of fractures and also was an in-patient in the hospital for a period from 19.03.2000 to 3.5.2000 and as such must have suffered heavy pain during the said period, I am of the view that the compensation awarded towards ‘Pain in suffering’ deserves enhancement by a sum of `5,000/- to bring it to a reasonable and just compensation.
Towards ‘Loss of income’, the Tribunal has awarded a sum of `5,000/-. A similar amount has been awarded towards ‘Attendant charges’. Even according to the claimant, she was working as a coolie in a Coffee Plantation earning a wage of `66/- per day.
The Wage Certificate issued by her alleged employer and marked at Exhibit P-5 also go to show that her daily wage was `66.44/-. Thus, her ‘Loss of income for alleged treatment period’ would not have exceeded a sum of `5,000/-. As such, the quantum of compensation awarded by the Tribunal towards ‘Loss of income’ and ‘Attendant charges’ being reasonable, does not warrant any modification.
The quantum of compensation awarded towards ‘Conveyance and nutritious food’ for the period of rest which is at a sum of `10,000/- being reasonable, the same does not warrant any modification.
The Tribunal observing that no sufficient medical bills have been produced, but has still awarded a compensation of a sum of `6,000/- towards ‘Medical expenses’. Even after perusing the medical bills produced and marked at Exhibits P-7 to P-11, I am of the view that even though the total sum of those medical bills would be far below `6,000/-, however, the Tribunal is justified in awarding a reasonable compensation of `6,000/- towards ‘Medical expenses’. As such, the same does not warrant any modification or enhancement.
Since the quantum of compensation awarded towards ‘Loss of amenities’ which is at `20,000/-, after considering the entire circumstances of the case and the nature of injuries sustained by the claimant as well as her alleged disability, I do not find any reason to modify the same.
The complainant as PW-1 has stated that due to the accident, she has sustained grievous injuries and is unable to continue her avocation as a coolie. She has also stated that she has suffered loss of income because of loss of avocation and the Doctor also has examined her in that regard.
PW-2 the Doctor has stated that even though the claimant has sustained accidental injuries on 19.03.2000 and was admitted to their hospital on 20.03.2000, but he assessed her alleged disability on 14.01.2008 and according to his assessment, she was suffering from disability to an extent of 20% confining to the left leg and right ribs. The denial suggestions made to him in his cross-examination was not admitted as true by him. Though the Doctor has assessed the disability at a particular percentage confining to the particular limb, but has not mentioned the percentage when applied to the whole body. However, the Doctor also has not specifically mentioned as to how the alleged disability would come in the way of the claimant continuing to do her avocation as she was doing it prior to the accident.
Still, considering the evidence of PW-1 and PW-2 and also the evidence of PW-2 to the effect that claimant could not squat and cannot lift heavy goods, I am of the view that the percentage of permanent partial disability as applicable to the whole body, is required to be taken in the instant case at 10%. In such an event, when according to the claimant herself her monthly income would not exceed `2,000/- per month, applying multiplier of ‘15’ which is applicable to age of the claimant which was 36 years as on the date of the accident, the quantum of compensation which can be awarded towards ‘Loss of future income due to alleged partial permanent disability’ would come to `36,000/- (2000 x 12 x 15 x 10/100). Since the Tribunal has awarded a sum of `30,000/- towards ‘Loss of income due to disability’, the claimant is entitled to the difference in amount of `6,000/- in the form of enhancement under the said head.
10. Barring the above, claimant / appellant is not entitled for compensation under any other heads or for enhancement of compensation awarded by the Tribunal under any other heads. Thus, in total, the claimant is entitled for enhancement of compensation of a sum of `11,000/- which is in addition to `1,01,000/- awarded by the Tribunal.
11. The Tribunal in the impugned judgment and award has exonerated the respondent – Insurance Company from its liability and has fastened the liability only as against the owner of the alleged offending vehicle. The reason given by the Tribunal for absolving the Insurance Company from its liability is that the alleged offending vehicle was subsequently substituted by the claimant at a later stage. A perusal of the documents, more particularly the First Information Report at Exhibit P1 would go to show that the informant has given the registration number of the alleged offending vehicle as CTH-4973. However at the end, the Investigating Officer has filed the charge- sheet against another motor cycle bearing Registration No.KA-12-E-4256. The owner of the vehicle has not contested the matter and has remained exparte. The Wound Certificate which is at Exhibit P-2 also go to show that the patient was brought to the hospital with the history of road traffic accident by bike No.CTH-4973. Thus, in more than one document, and even from first document which is the first information, the alleged offending vehicle is shown as a motor vehicle bearing Registration No.CTH-4973. No materials are placed to show as to how come the said vehicle was subsequently substituted with another vehicle bearing Registration No.KA-12-E-4256. Neither the claimant as PW-1 nor PW-2 anywhere in their evidence has stated about the reason for substituting the alleged offending vehicle. On the contrary, PW-1 when cross-examined on the said aspect from the respondent – Insurance Company, has pleaded her ignorance as to the substitution of the offending vehicle. Further, the claimant has neither examined driver of the alleged offending vehicle nor any eye-witnesses to the effect that the alleged vehicle that caused the accident was not CTH-4973 but it was a motor cycle bearing Registration No.KA-12-E-4256.
12. Appreciating these facts in a proper perspective since the Tribunal has rightly absolved the insurer from its liability and also since the appeal does not contain any prayer to affix the liability against the Insurance Company by setting aside the observation of the Tribunal which has absolved the Insurance Company, I am of the view that no interference is required in the said finding of the Tribunal in absolving the respondent – Insurance Company from its liability and confining the liability only as against the owner - first respondent.
13. Accordingly, I proceed to pass the following:
ORDER The Appeal is allowed in part.
The judgment and award dated 23.12.2009, passed by the learned Presiding Officer and Addl. MACT, Fast Track Court, Hassan, in MVC.No.1941/2006, is modified to the extent that the compensation awarded at `1,01,000/- is enhanced by a sum of `11,000/-, thus fixing the total compensation at `1,12,000/- (Rupees One Lakh Twelve Thousand only).
The rest of the order of the Tribunal with respect to fixing the liability upon the owner of the offending vehicle – Respondent No.1, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
Sd/- JUDGE KS