IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.1498/2012 (MV) BETWEEN:
SMT. MARIYAMMA AGED ABOUT 59 YEARS W/O. LATE JAVARASHETTY No.2674, 2ND CROSS MEDARA BLOCK NANJUMALIGE K.R. MOHALLA MYSUU. … APPELLANT (BY SRI. P. NATARAJU, ADVOCATE) AND:
1. M.N. SRIKANTHA AGED ABOUT 35 YEARS S/O. M.T. NEELAKANTA No.139, KRISHNAMURTHYPURAM 4TH CROSS, MYSURU PIN-570 004.
2. UNITED INDIA INSURANCE COMPANY LIMITED CBO No.442/3/4, 2ND FLOOR CHAMARAJA DOUBLE ROAD NEAR RAMASWAMY CIRCLE MYSURU-570 024 REPRESENTED BY ITS MANAGER. ... RESPONDENTS (BY SRI. A.M. VENKATESH, ADVOCATE FOR R2 R1 IS SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.7.2011 PASSED IN MVC.NO.82/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU, 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 challenging the judgment and award passed in M.V.C.No.82/2009 dated 11.07.2011 on the file of I Additional Senior Civil Judge, Mysore questioning the liability as well as the quantum of compensation.
2. The factual matrix of the case is that on 22.05.2008 at about 10.00 P.M., while the claimant was going near Nanju Malige Circle, Mysore, at that time, rider of the motor cycle bearing Registration No.KA-09-S-88 came from Srinivas Circle in a rash and negligent manner and dashed against her, as a result of which she fell down and sustained grievous injuries.
Immediately, she was taken to JSS Hospital and she was inpatient for a period of 20 days and spent Rs.2,00,000/- towards medical expenses. She was subjected to surgery and now, she is unable to do any work. The claimant contends that she was a coolie and was earning Rs.300/- per day.
3. In pursuance of the claim petition, respondent No.2 appeared and contested the matter and respondent No.1 was placed exparte. The respondent No.2 denied the averments made in the claim petition and so also negligence, avocation and income of the claimant.
4. The claimant, to substantiate her claim, examined herself as P.W.1 and also examined the Doctor as P.W.2 and got marked the documents Exs.P1 to P11. The respondent examined a witness as R.W.1 and got marked the documents Exs.R1 to R8. The tribunal, after considering both oral and documentary evidence, allowed the claim petition in part granting compensation of Rs.95,400/- with interest at 6% from the date of petition till the date of deposit. The Tribunal further held that respondent No.1 alone is liable to pay the compensation amount and exonerated the liability against the respondent No.2-insurance company. Hence, the present appeal is filed by the claimant questioning the quantum of compensation as well as liability.
5. The main grounds urged in the appeal is that the Tribunal has committed an error in awarding an amount of Rs.20,000/- on the head pain and suffering and failed to take the income of the claimant at Rs.300/- per day. The Tribunal also, even though the Doctor has deposed 40% disability to left lower limb, only taken 10% disability and committed an error. The other contention is that, the respondent No.2 has not produced any document from the R.T.O to show that the respondent No.1 had no driving license. But, the Tribunal solely relied upon the evidence of R.W.1 and committed an error in fastening the liability on the insured. Hence, it requires interference of this Court.
6. The counsel appearing for the claimant reiterates the grounds urged in the memorandum of appeal and further contend that the compensation award under all the heads is very meager and it requires interference of this Court. The counsel also would contend that in view of the judgment of the Apex Court in Pappu’s case, the liability is to be fastened on the insurance company with a direction to recover the same from the insured.
7. The counsel appearing for the respondents would contend that notice was served to R.T.O. to furnish the document but, R.T.O. did not furnish the driving license particulars. Apart from that, the counsel would contend that the driver himself has pleaded guilty before the Magistrate Court and certified copy of the order sheet is also produced as Ex.R7 and the same has not been rebutted. Hence, the Tribunal has rightly fastened the liability on the insured and the question of fastening the liability on the insurer does not arise.
8. Having heard the arguments of learned counsel for the claimant and learned counsel for the respondents, the points that arise for consideration of this Court are:
(i) Whether the Court below has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
(ii) Whether the Court below has committed an error in fastening the liability on the insured and it requires interference of this Court?
(iii) What order?
Point No.(i):
9. On perusal of material available on record, it is seen that the accident has taken place in the year 2008. The claimant has produced wound certificate which is marked as Ex.P6 and the same discloses that the claimant has suffered fracture of shaft of left femur at 1/3rd middle and cut lacerated wound over left leg. The case sheet which is marked as Ex.P10 discloses that the claimant was admitted to hospital on 22.05.2008 and was discharged on 10.06.2008. She was subjected to surgery on 23.05.2008 and hence, she was in the hospital as inpatient for a period of 19 days.
10. The Tribunal awarded a sum of Rs.20,000/- on the head pain and suffering and the same is very meager and hence, it is appropriate to award Rs.35,000/- as against Rs.20,000/-, since the accident has taken place in the year 2008.
11. The Tribunal awarded a sum of Rs.9,000/- on the head of loss of earnings during laid up period, taking the income at Rs.3,000/- per month. When the accident has taken place in the year 2008, in the absence of documentary proof, the Tribunal ought to have taken the notional income at Rs.4,500/- per month. Hence, it requires modification. When the claimant has suffered fracture and minimum three months time is required for uniting the fracture and also requires rest after uniting of the fracture, hence, it is appropriate to take four months salary at Rs.4,500/- per month. Hence, a sum of Rs.18,000/- is awarded as against Rs.9,000/-.
12. The Tribunal awarded Rs.32,400/- on the head of loss of future earnings. Considering the evidence of the Doctor, who has been examined as P.W.2 has deposed that the claimant is suffering from 40% disability to the particular limb, the Tribunal has taken the income of the claimant at Rs.3,000/- per month and disability at 10%. Having considered the nature of fracture, I do not find any error committed by the Court below in taking the disability at 10%. However, the Tribunal has taken the income at Rs.3,000/- per month and having taken the income at Rs.4,500/- per month, a sum of Rs.48,600/- is awarded. (4500 x 9 x 10 x 12).
13. The Tribunal awarded a sum of Rs.13,000/- towards medical expenses and the same is based on the documents and I do not find any reason to interfere with the same.
14. The Tribunal awarded a sum of Rs.15,000/- on the head of loss of amenities and enjoyment in life. When the claimant has suffered disability at 10% to whole body and she has to lead rest of her life with the said disability, hence, it is appropriate to award Rs.25,000/- under this head.
15. The claimant was in the hospital for a period of 19 days and she was subjected to surgery on 23.05.2008 and was discharged on 10.06.2008. The Tribunal has awarded Rs.6000/- on the head conveyance, nourishment and attendant charges which is very meager and the same is enhanced to Rs.15,000/-.
Point No.(ii) & (iii):
16. The main contention of the claimant is that the Tribunal has committed an error in fastening the liability on the insured and respondent No.2 has not produced any documentary proof and also not examined the R.T.O. official and blindly accepted the contention of the respondent. The respondent examined one witness as R.W.1 and also got marked the document Ex.R7, the certified copy of the order sheet which discloses that that driver pleaded guilty before the Magistrate Court. The said evidence has not been rebutted by the claimant. Having considered the same, I do not find any error committed by the Tribunal in fastening the liability on the insured. But, in view of the judgment of Apex Court in Pappu’s case, the insurance company is directed to pay the compensation and recover the same from the insured. Hence, accordingly, I answer point No.2.
17. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal is modified granting the compensation of Rs.1,54,600/- as against Rs.95,400/- with interest at 6% per annum from the date of petition till the date of deposit.
(iii) The insurance company is directed to deposit the compensation within eight weeks from today and recover the same from the insured.
(iii) The order of the tribunal in respect of depositing the compensation amount in fixed deposit shall remain unaltered.
(iv) The registry is directed to send the lower court records to the court below forthwith.
Sd/- JUDGE ST