IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL MISCELLANEOUS FIRST APPEAL NO.10703/2010(MV) BETWEEN:
NURSI SALIAN W/O KALAPPA C SALIAN AGED ABOUT 56 YEARS R/AT ANUGRAHA RAMA NAGAR, KAUP PADU VILLAGE UDUPI TALUK, UDUPI DISTRICT ... APPELLANT (BY SRI.S D N PRASAD, ADV.) AND:
1. THE MANAGING DIRECTOR HANUMAN TRANSPORT COMPANY PVT LTD., 7, BADAGABETTU, CHITPADY, UDUPI TALUK, UDUPI DISTRICT.
2. THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD., II FLOOR VISHNU PRAKASH BUILDING, COURT ROAD, UDUPI TALUK, UDUPI DISTRICT. ... RESPONDENTS (BY SRI.V.NARAYANA SWAMY, ADV. FOR R2 R1 IS SERVED AND UNREPRESENTED) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.07.2010 PASSED IN MVC NO.398/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT, UDUPI, 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 This appeal is by the claimant seeking enhancement of compensation awarded by the Additional Senior Civil Judge and MACT, Udupi (hereinafter referred to as ‘the Tribunal’ for short) in MVC No.398/2009 dated 12-07-2010.
2. Heard. The appeal is admitted and with the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal.
3. The brief facts leading to the filing of the appeal are:
While Smt.Nursi Salian was walking on the left side of the road on N.H.17 on 01-01-2009 at about 1.00 p.m., a bus bearing Registration No.KA-20/A-2857 driven by its driver in a rash and negligent manner dashed against the claimant, as a result of which, she fell down and sustained injuries. Immediately after the accident, she was taken to Hitech Medicare Hospital, Ambalpadi, Udupi, wherein she was treated as inpatient for the period from 01-01-2009 to 04-01-2009. It is the further case of the claimant that she was earning a sum of Rs.8,000/- p.m., by doing fish selling business and she has incurred huge expenses towards the treatment. She has also lost income since she suffered permanent disability, as such the claim petition came to be filed claiming compensation.
4. In pursuance of the notice issued by the Tribunal, Respondent No.1 being the owner of the offending bus remained absent and he was placed exparte. Respondent No.2-insurance company filed the written statement denying the contention of the claimant. It is further contended that liability of Respondent No.2 is subject to terms and conditions of the policy. On these grounds, he prayed for dismissal of the claim petition.
5. On the basis of pleading of the parties, the Tribunal framed the following issues:
(i) Whether petitioner proves that on 1-1-2009 due to the rash and negligent driving of the driver of the bus bearing Registration No.KA-20/A-2857, the accident occurred and thereby petitioner sustained to injuries?
(ii) Whether the respondent No.2 proves that the accident occurred due to the negligence of the petitioner?
(iii) Whether the petitioner is entitled for compensation as prayed? If so, what is the quantum of compensation and from whom?
(iv) What order or award?
6. In order to prove the case of the claimant, she got examined herself as P.W.1 and got examined the Doctor who treated her as P.W.2 and got marked the documents as Ex.P1 to Ex.P15(a). Respondent No.2 has not made an attempt to examine any of the witnesses nor marked the documents.
7. After hearing the parties to the lis, the claim petition came to be allowed by awarding compensation of Rs.24,600/-. Assailing the said judgment and award, the claimant is before this Court seeking enhancement of compensation.
8. The main ground urged by the learned counsel for the appellant/claimant is that the Tribunal has not taken into consideration the injuries sustained by the claimant. He further contended that Ex.P3-Wound Certificate and Ex.P14-Treatment Certificate clearly indicates that she has sustained fracture of humerus left and suffered 11.7% permanent disability on her left hand and that the income taken is also on the lower side. He further contended that the compensation awarded under various heads is also on the lower side. On these grounds, he prayed for allowing the appeal by enhancing the compensation.
9. Per contra, learned counsel appearing for Respondent No.2-insurance company justifying the judgment and award contended that the compensation awarded by the Tribunal is just and proper and prays for dismissal of the said appeal.
10. The accident in question so also the offending vehicle insured with Respondent No.2/insurance company is not in dispute. As could be seen from the judgment and award of the Tribunal, the claimant has contended that she has sustained fracture of humerus left and she has sustained 11.7% permanent disability to her left hand; she was earning Rs.8,000/- p.m., by doing fishery business. Taking into consideration the evidence of P.W.2 and the evidence of the Doctor who treated the claimant, the Tribunal has come to the conclusion that the appellant has no difficulty to do her day to day work and other works on account of accidental injuries and as such, it has come to the conclusion that there is no loss of income. As such, no compensation has been awarded towards loss of income. The same appears to be justfiable.
11. The Tribunal has reckoned the income of the claimant as Rs.3,000/- p.m., which is very meager. In the absence of any documentary evidence, fixing the income notionally may be justifiable. But, taking into consideration the year of accident and prevailing daily wage as of 2009, the Tribunal ought to have reckoned the income of the claimant as Rs.5,000/- p.m., instead of Rs.3,000/- p.m. If that were to be taken into consideration, then the claimant is entitled to enhancement of the compensation awarded under other heads.
12. The evidence clearly goes to show that the claimant was treated as inpatient from 01-01-2009 to 04-01-2009 and she has sustained fracture of humerus left and she might have taken treatment and rest for a period of three months. During that particular period, she might have lost some income during the laid up period. Hence she is entitled to a sum of Rs.15,000/- towards loss of income during the laid up period. As could be seen from the judgment and award, the compensation awarded under other heads also appears to be on the lower side. Keeping in view the injuries sustained by the claimant and other materials, the appellant/claimant is entitled to a sum of Rs.25,000/- towards pain and suffering and a sum of Rs.20,000/- towards loss of amenities and discomfort in future life. She might have also taken the assistance of one attendant and might have incurred other expenses for nutrition and diet. Hence, she is entitled to a sum of Rs.5,000/- towards attendant and conveyance charges. After reassessing the compensation, the appellant is entitled to :
Out of the total compensation of Rs.68,600/-, after deducting the compensation awarded by the Tribunal to an extent of Rs.24,600/-, the appellant-claimant is entitled to additional compensation of Rs.44,000/- with interest at the rate of 6% p.a.
14. Accordingly, the appeal is allowed in part. The judgment and award dated 12-07-2010 in MVC No.398/2009 passed by the Additional Senior Civil Judge and MACT, Udupi is modified as indicated above.
Respondent No.2-insurance company is directed to deposit the compensation amount with interest, within a period of six weeks from the date of receipt of a copy of this judgment.
Registry is directed to draw the decree accordingly.
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JUDGE mpk/-*