IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.629/2015 [MV] BETWEEN :
MISS RUBY D/O K.D.PRASAD, AGED ABOUT 30 YEARS, R/AT NO.47, 2ND FLOOR, 1ST CROSS, DEVINAGAR MAIN ROAD, LKR NAGAR, LOTTEGOLLAHALLI, BANGALORE-560094 ...APPELLANT (BY SRI M.BABU, ADV.) AND :
1. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., DIVISION OFFICE, NO.663, 1ST FLOOR, 1ST MAIN ROAD, DEFENCE COLONY, 100 FEET ROAD, INDHIRANAGAR 1ST STAGE, BANGALORE-560038 2. SRI SRIDHARA R., S/O LATE N.RAJU MAJOR IN AGE, NO.12/1, NEW BINNAMANGALA OLD MADRAS ROAD, BANGALORE-560038 …RESPONDENTS (BY SRI ASHOK N. PATIL, ADV. FOR R-1 R-2 NOTICE D/W VIDE ORDER DATED 20.10.2016.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 15.09.2014 PASSED IN MVC NO.3185/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, 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 The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 15.09.2014 passed in MVC No.3185/2012 on the file of XX Additional Small Cause Judge, Member, MACT, Bangalore.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained in the Road Traffic Accident that occurred on 19.03.2012 when the claimant was proceeding in her Scooty bearing Reg.No.AP-31-AX-1209 along with pillion rider near M.S. Ramaiah Medical and Teaching Hospital Gate No.7, Bangalore, at that time, a Lorry bearing Reg.No.KA-35-B-5400 came in a rash, negligent manner and dashed against the said scooty. Due to the impact, the claimant suffered simple as well as grievous injuries. The claimant states that she took treatment at M.S.Ramaiah Hospital and subsequently at Hosmat Hospital. She was working as Lecturer in M.S. Ramaiah Teaching Hospital and earning Rs.34,000/- per month.
3. On issuance of summons, the respondent – Insurance Company appeared before the Tribunal and filed its objections stating that the driver of the Lorry was not holding valid and effective driving licence as on the date of accident and that the accident occurred due to rash and negligent driving of the Scooty by the claimant. The claimant examined herself as PW.1 and examined the Doctor as PW.2 in support of her case and got marked the documents Exs.P1 to 38. The respondent – Insurance Company examined RW.1 and got marked the documents Exs.R1 and R2. The Tribunal on assessing the material on record awarded total compensation of Rs.10,00,000/- to the claimant on the following heads :-
1. Pain and sufferings Rs.1,40,000-00 2. Medical expenses Rs.4,25,000-00 3. Food, Nourishment & transportation Rs. 50,000-00 4. Loss of income during laid up period Rs. 85,000-00 5. Loss of amenities in life Rs.2,00,000-00 6. Future Medical expenses Rs.1,00,000-00 Total Rs.10,00,000-00 Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 1st respondent – Insurance Company . Perused the appeal papers.
5. The learned counsel for the appellant would submit that the compensation awarded by the Tribunal is on the lower side, when compared to the injuries suffered by the claimant. He submits that she was working as a Lecturer in M.S. Ramaiah Teaching Hospital and she was earning Rs.34,000/- per month. Because of the accident she could not attend to her work for more than six months and he further submits that the compensation awarded on the head ‘Future medical expenses’ is also on the lower side and prays for enhancement. He further submits that I.A.No.2/2015 is filed under Order XLI Rule 21 of CPC seeking to produce additional documents. He submits that additional documents are produced to substantiate the contention of the appellant that the appellant was on leave from 20.03.2012 to 09.09.2013 nearly for more than a year and that she has suffered loss of income. It is his submission that the appellant requires future medical expenses for maintenance of artificial limb. It is stated in the affidavit accompanying the application that the documents mentioned in the application are very much necessary to determine the compensation and further it is stated that the documents are recent documents and documents at serial Nos.1 to 3 were misplaced during the trial before the Tribunal and hence the said documents are produced before this Court.
6. On going through the documents it is seen that the letter dated 29.12.2014 issued by M.S. Ramaiah Institute of Nursing Education and Research would indicate that the claimant was on leave from 20.03.2012 to 09.09.2013 with loss of pay on medical grounds. But the said document indicates that the claimant was on leave for the said period, but there is no Doctor’s certificate advising rest and opining that such leave was necessary for healing of the injuries suffered by the claimant, to support her case. The Doctor in his evidence has not suggested for rest for such a long period. In the absence of Doctor’s evidence the claimant cannot claim salary for such a long leave. I.A.No.2/2015 is dismissed. The claimant has suffered the following injuries:-
“1. Crush injury of left leg, ankle and foot knee with doubtful viability.
2. Pen segmental fracture of left tibia with fracture.
3. Open fracture dislocation of left ankle joint.”
The Tribunal taking into consideration the evidence of the Doctor has rightly assessed the whole body disability at 28% and determined the compensation. Looking into the nature of injuries suffered by the claimant, I am of the view, that the claimant would have been out of employment for nearly four months, thus the claimant would be entitled for four months salary on the head ‘Loss of income during laid up period’. The claimant would be entitled for Rs.1,34,764/- (Rs.1,34,764/- less Rs.85,000/- = Rs.49,764/-) instead of Rs.85,000/- awarded by the Tribunal. The claimant has suffered amputation of knee upto 8 cms. It is stated that the claimant requires artificial limb, but the Tribunal has awarded Rs.1,00,000/- on the head ‘Future medical expenses’ which is towards ‘Artificial limb’. Submission of the learned counsel for the appellant is that the claimant requires maintenance charges for artificial limb. Therefore, looking into the nature of injuries, I am of the view, the claimant would be entitled to an additional sum of Rs.25,000/- on the head ‘Future Medical Expenses’.
7. Accordingly, the appeal is allowed in part. The impugned judgment and decree is modified. The claimant is entitled for enhanced compensation of a sum of Rs.74,764/- (Rs.49,764/- + Rs.25,000/- = Rs.74,764/-) in addition to the compensation awarded by the Tribunal, along with interest as awarded by the Tribunal.
Sd/- JUDGE NG* CT:bms