IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.7262/2013 [MV] BETWEEN:
M.S. HIREMATH S/O SHIVAIAH HIREMATH AGED ABOUT 53 YEARS R/AT NO.71/5 JARAGANAHALLI ROSE GARDEN JARAGANAHALLI BANGALORE-560 078.
(BY SRI.BOPANNA B., ADV.) AND:
1. IFFCO TOKIO GEN.INS.CO.LTD., CHENNAKESHAVANAGAR HOSA ROAD, ELECTRONIC CITY POST BANGALORE, REP. BY ITS BRANCH MANAGER PINCODE: 560 100.
...APPELLANT 2. LATHA W/O CHANDRAN R/AT NO.33/3, 1ST MAIN 6TH CROSS, SINGASANDRA BANGALORE-560 068. …RESPONDENTS (BY SRI.H.N. KESHAVA PRASHANTH, ADV. FOR R1 R2-NOTICE D/W V/O DT:23/02/2017) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.05.2013 PASSED IN MVC NO.3116/2012 ON THE FILE OF THE XXIII ADDITIONAL SMALL CAUSES JUDGE & XXI ACMM, 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 ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is claimant’s appeal seeking enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 18.05.2013 passed in MVC No.3116/2012 on the file of MACT, Court of Small Causes, Bengalure.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 16.01.2012 when the claimant was crossing the service road at Hosur the rider of the TVS Vega Motor Cycle bearing No.Reg.KA-51:EA6465 came in high speed, rash and negligent manner and dashed to the claimant causing the accident due to which the claimant sustained injuries and immediately he was shifted to St. John Medical College Hospital, wherein he took treatment as an inpatient for 21 days. The claimant states that he was working as a Junior Assistant at Karnataka State Beverages Corporation, Bangalore, earning a salary of Rs.29,457/- per month.
3. On issuance of summons the 1st respondent - Insurance Company appeared and filed its written statement. Whereas respondent No.2 was placed ex- parte. The 1st respondent admitted issuance of policy but denied the claim petition averments. The claimant examined himself as PW.1 and also examined the Doctor as PW.2, apart from marking the documents Exs.P1 to P25. No evidence was adduced on behalf of the respondents. The Tribunal on appreciating the material on record awarded total compensation of Rs.1,21,360/- along with interest at 6% p.a. from the
Not being satisfied with quantum of compensation awarded by the Tribunal, the appellant/claimant is in appeal before this Court seeking enhancement of compensation.
4. Heard the learned counsel for the appellant and learned counsel for the 1st respondent - Insurance Company. Perused the entire material on record.
5. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side, when compared to the injuries suffered and treatment taken by the claimant. It is his submission that the claimant has sustained fracture of lateral condyle of right tibia plateau and lateral collateral ligament injury to right knee. It is his submission that the claimant took treatment as inpatient for 21 days. The Doctor - PW.2 has assessed the disability to particular limb at 32% and whole body disability at 11%. He further submits that the claimant would require Rs.25,000/- to undergo further surgery. It is also his submission that the claimant could not attend to his duty for nearly two months and he was given half pay leave as per Ex.P.11. He submits that the claimant would be entitled for the balance of half pay. It is his further submission that the compensation awarded by the Tribunal on various heads when compared to the injuries suffered and treatment taken are on the lower side and prays for enhancement of compensation.
6. Per contra, learned counsel for the 1st respondent – Insurer submits that the Tribunal has awarded just compensation which needs no interference. He further submits that the claimant is working in a government undertaking as Junior Assistant, there is no functional disability insofar as the injuries suffered by the claimant are concerned. The claimant has not placed on record any material to establish that the injuries sustained is a functional disability and because of which his pay has been reduced. Thus he prays for dismissal of the appeal.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arise for consideration is as to 'Whether the claimant would be entitled to enhancement of compensation in the facts and circumstances of the case?' The said point is answered partly in the affirmative for the following reasons :-
The occurrence of the accident on 16.01.2012 involving TVS Vega Motor Cycle bearing No.KA-51 EA 6465 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant has suffered the injuries as stated above and took treatment as inpatient for 21 days. PW.2 the Doctor states that the claimant suffers from 33% disability to particular limb and 11 % disability to the whole body. The claimant has not established that he has suffered functional disability due to accidental injuries and because of which his salary has been reduced nor he has been out of employment. In the circumstances, the Tribunal has rightly not assessed the functional disability. Further the learned counsel for the petitioner states that the claimant was out of employment for 51 days which is treated as 60 days. Ex.P.11 – the leave certificate indicates that the claimant was paid half pay leave during laid up period and as such he would be entitled for balance of half pay which is determined at Rs.29,500/-. But the same is not included in the compensation awarded by the Tribunal, for which the claimant would be entitled to. Looking to the injuries sustained treatment taken as inpatient for 21 days, the claimant would be entitled for another sum of Rs.5,000/- on the head of transport, special diet and attendant charges. The Doctor has stated in his evidence that the claimant would require another sum of Rs.25,000/- to undergo one more surgery for removal of implants. The Tribunal has awarded Rs.15,000/- towards future medical expenses, which would suffice the purpose. Thus the claimant would be entitled for a sum of Rs.29,500/- being the balance of pay during the leave period when he was out of employment and a sum of Rs.5,000/- in addition to Rs.20,000/- towards Transport, Special diet and attendant charges.
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimant is entitled to compensation of Rs.34,500/- in addition to Rs.1,21,360/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG*CT:bms