IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.573 OF 2013 (MV) BETWEEN:
MISS SAMIYA KOUSAR D/O. LATE SRI. FAZLUR REHMAN KHAN AGED 18 YEARS R/AT. NO.36, 5TH PHASE, 2ND CROSS, PUTTENAHALLI, VINAYAKA NAGARA, BANGALORE – 560078.
(BY SMT. RAJESHWARI.M, ADVOCATE FOR SRI. R.B. SADASIVAPPA, ADVOCATE) AND:
1. THE MANAGING DIRECTOR BANGALORE METROPOLITAN TRANSPORT CORPORATION K.H.ROAD, BANGALORE-560027.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. CHICKPET BRANCH, BANGALORE-560053.
... APPELLANT ... RESPONDENTS (BY SRI. D. VIJAYAKUMAR, ADVOCATE FOR R1 SRI. JWALA KUMAR, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.10.2012 PASSED IN MVC NO.1299/2011 ON THE FILE OF THE 4TH ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 04/10/2012 in M.V.C.No.1299/2011 on the file of the IV Additional Judge, Court of Small Causes, Bangalore.
2. The claimant is a minor aged about 16 years as on the date of accident. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 12-6-2010, when the claimant was returning from her college to her house as a pillion rider on two wheeler bearing No.KA.51/W.2169, BMTC bus bearing No.KA.01/F.3989 came in a rash and negligent manner and dashed to the two wheeler. Due to which, the claimant and rider of the two wheeler fell down and sustained injuries. Immediately, the claimant was shifted to Jayanagar Government Hospital and thereafter to Sri.Krishna Sevashrama Hospital, Jayanagar, Bangalore, where she was treated as an inpatient for nine days from 13-6-2010 to 21-6-2010. The claimant sustained fracture of right tibia.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal but only respondent No.2- Insurer filed its statement of objections denying the claim petition averments. Further contended that the accident has occurred solely due the negligence of the rider of the two wheeler. It is also stated that the driver of the Bus violated the terms and conditions of the policy. Hence, the insurer is not liable to pay the compensation.
4. The mother of the claimant examined herself as PW- 1 and Doctor as PW-2, apart from marking 17 documents Exs.P-1 to P-17. No evidence was lead and no documents were marked on the behalf of the respondents.
5. The Tribunal based on the material placed before it, awarded total compensation of Rs.1,03,090/- with interest
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the entire lower court records.
7. 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 injury suffered and treatment taken by the claimant as inpatient. She further submits that the claimant has suffered fracture of right tibia and she was inpatient for nine days. It is her further submission that the claimant had produced medical bills amounting to Rs.80,000/- but the Tribunal awarded only Rs.29,000/- on the head of ‘Medical expenses’, without there being any reason. Learned counsel further submits that the Tribunal could not have rejected the medical bills on the ground that the claimant has not produced prescriptions in support of the medical bills. It is her further contention that when the claimant was inpatient, there would be no prescriptions. Further, learned counsel submits that the compensation awarded on the various heads are also on the lower side. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondents would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. It is further submitted that the Tribunal rightly awarded Rs.29,000/- out of Rs.80,000/- towards medical bills since the prescriptions were not produced in support of the medical bills for the balance amount of Rs.51,000/- and also based on the evidence, the Tribunal rightly disbelieved the bills claimed for the balance amount. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in awarding Rs.29,000/- on the head of ‘Medical expenses’, when the claim is for Rs.80,000/-?
2) Whether the claimant would be entitled for enhanced compensation.
Answer to the above points is in affirmative and in negative respectively for the following reasons.
10. The accident occurred on 12-6-2010 involving two wheeler bearing No.KA.51/W.2169, BMTC bus bearing No.KA.01/F.3989 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is in appeal for enhancement of compensation. The claimant suffered fracture of right tibia and she was inpatient for nine days from 13-6-2010 to 21-6-2010. The claimant produced medical bills at Ex.P-8 and prescriptions at Ex.P-9. The Tribunal on examination of those bills awarded total compensation of Rs.29,000/- on the head of ‘Medical expenses’ even though the claimant had claimed Rs.80,000/- by producing medical bills. The Tribunal noted that the medical bills produced by the claimant are all dated 21-6-2010, which were having continuous receipt numbers. Further it is also noted that the claimant had not placed on record the prescriptions for balance amount. When the prescriptions are not produced, the Tribunal is justified in rejecting the balance amount claimed towards medical expenses. The contention that when the claimant was inpatient, there would be no prescriptions and as such the prescriptions are not produced cannot be accepted. When the medicines are to be purchased, one has to produce prescriptions. In that view of the matter and as noted by the Tribunal that the bills are of the same date, I am of the view that the Tribunal rightly rejected those bills and awarded compensation of Rs.29,000/- on the head of ‘Medical expenses’ based on genuine bills, where there is prescriptions produced in support of the bills.
11. As noted above, the claimant has suffered fracture of right tibia and she was inpatient for nine days. Further the compensation awarded on the heads of ‘Loss of amenities’, ‘Attendant charges’, ‘Nutritious food’ and ‘Conveyance’ are on the lower side, when compared to the treatment taken and nature of injury suffered by the claimant. Thus, the claimant would be entitled for another Rs.20,000/- on the head of ‘Loss of amenities’, Rs.4,000/- on the head of ‘Attendant charges’, Rs.5,000/- on the head of ‘Medical expenses’, Rs.5,000/- on the head of ‘Nutritious food’ and Rs.5,000/- on the head of ‘Conveyance’ in addition to compensation awarded by the Tribunal. Thus, the claimant-appellant would be entitled for modified enhanced
modified compensation of Rs.1,42,000/- as against Rs.1,03,090/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ