IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.11065 OF 2012 (MV) BETWEEN THE ORIENTAL INSURANCE COMPANY LIMITED, HASSAN REP. BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, 2ND FLOOR SUMANGALA COMPLEX LAMINGTON ROAD HUBLI – 580 020 ... APPELLANT (BY SRI. SHANKARA REDDY C., ADVOCATE) AND 1. B. N. KIRAN S/O NARASIMHA MURTHY AGED ABOUT 28 YEARS R/AT NO.173, HUTTA COLONY BHADRAVATHI C/O B. N. SHAKUNTHALA 2ND CROSS, BASAVANAGUDI SHIMOGA – 557 7201 2. H. K. GANGADHARA S/O H. N. KALASHETTY AGED ABOUT 46 YEARS R/AT SRI. LAKSHMIDEVI NILAYA BASAVESHWARANAGARA BALEPETE, SAKALESHAPURA TALUK HASSAN DISTRICT – 573 201 3. SHEKHARA S/O MOODLAGIRIYAPPA AGED ABOUT 46 YEARS R/AT KENCHAMMA HOSAKATTE HALUR, HASSAN DISTRICT – 573 201 ... RESPONDENTS (BY SRI. B. S. PRASAD, ADV. FOR C/R1;
NOTICE TO R2 AND R3 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.09.2012 PASSED IN MVC NO.297/2011 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND AMACT, SHIMOGA, AWARDING A COMPENSATION OF RS.9,82,300/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 01.09.2012 rendered by the II Addl. Senior Civil Judge and AMACT, Shimoga in MVC No.297/2011 whereby the Tribunal has awarded compensation of Rs.9,82,300/- with interest @ 6% p.a.
3. The factual matrix of the appeal is that on 11.11.2010 the petitioner was going along with his colleague Smt.Sulochana from Bhadravati to Shimoga side on Hero-Honda Super Splendor motor cycle bearing Regn.No.KA-14-S-8955 in order to attend marriage. While proceeding near Malavagoppa village at about 7.00 p.m., a lorry bearing Reg.No.KA-46-1838 driven by the second respondent in a rash and negligent manner from Bhadravathi side, suddenly took U turn. Since, the lorry was unable to take right turn, the driver, all of a sudden took the vehicle in reverse direction and on account of that the lorry dashed against the motor cycle. Due to the said impact, the petitioner and the pillion rider fell down and sustained grievous injuries. Thereafter, he was taken to different hospitals and took treatment as an inpatient. He was working as a faculty member in VISHJ Government Polytechnic at Bhadravathi and getting a consolidated salary of Rs.10,000/- p.m. Prior to accident he was hale and healthy, but due to the accidental injuries, he is unable to do work as earlier. On all these grounds, the claim petition was filed before the Tribunal seeking compensation.
4. After service of notice, respondents 1 and 2 remained absent all throughout the proceedings and they were placed exparte. The third respondent entered appearance and filed objections denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the Tribunal framed issues for consideration. In order to prove his claim petitioner has filed his affidavit in lieu of his evidence as PW.1 and got marked Exs.P1 to P414. He has examined one Dr.Kiran V.Acharya through court commissioner and through him got marked Exs.C1 to C4. On behalf of respondents no evidence was adduced, but Ex.R1 was got marked. After hearing arguments advanced by learned counsel for the parties and on evaluation of oral and documentary evidence available on record, the Tribunal rendered the impugned judgment awarding compensation of Rs.9,82,300/- with interest @ 6% p.a. from the date of petition till date of deposit. Hence, the present appeal by the insurance company.
6. Learned counsel for the appellant - insurance company contends that the Tribunal erred in assessing the monthly income of the claimant at Rs.8,000/- based on Ex.P9 without any basis. The claimant has stated that he was working as a lecturer in Government Polytechnic College at Bhadravathi but no documentary evidence has been produced. Further, he contends that the compensation awarded towards pain and sufferings is on higher side and the same is required to be reduced. Further, the Tribunal while awarding a sum of Rs.2,60,000/- towards medical expenses ought to have verified the bills carefully before granting huge amount under this head. He further contends that the Tribunal erred in considering the whole body disability at 32% as against 32% to the particular limb. In fact the claimant is not entitled for future loss of income as his service is still continued. The compensation of Rs.50,000/- awarded towards loss of amenities for simple fractures is without any basis and the same is liable to be reduced. On all these grounds, learned counsel for the appellant prays for reduction of compensation awarded by the Tribunal, by modifying the impugned judgment.
7. Per contra, learned counsel for respondent / claimant contends that the Tribunal on evaluation of entire oral and documentary evidence available on record has awarded just and reasonable compensation and the same does not call for interference of this Court and sought for dismissal of the appeal.
8. In the backdrop of the contentions as taken by learned counsel for the appellant and countered by learned counsel for the respondent, it is relevant to state that there is no dispute that the claimant has sustained injuries due to the actionable negligence on the part of the driver of the offending vehicle in a road traffic accident. In support of the claim, the petitioner himself was examined as PW.1 and documents such as Ex.P1 – Notice, Ex.P2 – FIR, Ex.P3 – Complaint, Ex.P4 – Spot panchanama, Ex.P5 – wound certificate, Ex.P6 – IMV report, Ex.P7 – charge sheet and Ex.P8 – spot sketch were produced in support of his claim.
9. The claimant has sustained punctured wound over right patella, punctured wound over right tibia, right knee hemarthrosis and fracture of right proximal tibia. Injuries no.3 and 4 are grievous in nature. The Doctor has assessed disability at 32% pertaining to right lower limb locomoto functions. Relying upon a decision of the Supreme Court reported in AIR 2011 SC 2951 the Tribunal accepted the disability assessed by the Doctor to the whole body at 32%. It is pertinent to note that the Doctor has assessed the disability of 32% to right lower limb. But the Tribunal erred in holding 32% disability to the whole body. Therefore, it would be just and appropriate to hold disability of 1/3rd of 32%, which comes to 11% to the whole body for the purpose of assessing the compensation towards future loss of income.
10. Further, the Tribunal assessed the monthly income of the petitioner at Rs.8,000/- holding that petitioner was working as a consultant on temporary basis. But a perusal of Ex.P9 – Service register, revealas that petitioner was working as a faculty member in V.I.S.H.J. Government Polytechnic at Bhadravathi and getting a consolidated salary of Rs.10,000/- p.m. Therefore, it would be just and proper to hold monthly income of the petitioner at Rs.10,000/-. Further, the Tribunal has rightly adopted multiplier of ‘17’ by considering the age of the petitioner. Accordingly, the compensation towards loss of future income is re- worked out as under:
Rs.10,000 x 12 x 17 = Rs.2,24,400/-
Thus, the claimant is entitled for a sum of Rs.2,24,400/- towards loss of future income as against Rs.5,22,240/- awarded by the Tribunal.
11. Further, the Tribunal has observed that as per the oral and documentary evidence of the petitioner, operation was conducted and for about 3 months the petitioner has taken treatment and he has been taking follow up treatment. Therefore, the Tribunal awarded Rs.40,000/- towards loss of income during treatment period. But having regard to the nature of injuries sustained by the petitioner, the duration of treatment taken by him, and so also, the monthly income of the petitioner having been taken at Rs.10,000/-, the compensation towards loss of income during treatment and rest for a period of 7 months will be Rs.70,000/- (Rs.10,000/- x 7months). Further, having regard to the fact that the petitioner has traveled to Hospitals for number of times for the purpose of treatment, I deem it appropriate to award another sum of Rs.10,000/- towards conveyance charges.
12. Learned counsel for the claimant contends that the Tribunal has not considered awarding compensation under future medical expenses. The Doctor has opined that he needs to undergo implant removal after 18 months from right tibia. The cost of such procedure would be Rs.45,000/-. Keeping in view, the evidence of Doctor and so also, the nature of injuries sustained by the petitioner, a sum of Rs.45,000/- is awarded towards future medical expenses.
13. However, the compensation awarded by the Tribunal under other heads appears to be just and reasonable and the same does not call for interference of this Court.
14. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation by this Court
Pain and suffering Treatment expenses Future loss of income Loss of income during treatment Attendant and nourishment charges Loss of amenities Conveyance charges Future medical expenses Total Thus, in all, the claimant is entitled for total compensation of Rs.7,69,400/- as against Rs.9,82,240/- awarded by the Tribunal. The compensation awarded by the Tribunal is scaled down by a sum of Rs.2,12,840/-.
For the reasons and findings as stated above, I proceed to pass the following:
ORDER The appeal filed by the appellant/insurance company is allowed in part. The impugned judgment and award dated 01.09.2012 rendered by the Tribunal in MVC No.297/2011, is modified, reducing the compensation from Rs.9,82,240/- to Rs.7,69,400/- with interest @ 6% p.a. from the date of petition till realisation.
The Appellant - Insurance Company shall deposit the compensation, along with interest accrued, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, in terms of the award, on proper identification. The amount already deposited shall be adjusted. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
The amount in deposit, if any, shall be transmitted to the Tribunal.
Office to draw the decree accordingly.
Sd/- JUDGE DKB