IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A.No.3233 OF 2011 c/w M.F.A.No.2232 OF 2011 (MV) IN MFA NO.3233/2011 Between:
M/s Oriental Insurance Company Limited DO-12, No.1001/56 Jayalakshmi Mansion 2nd Floor, Dr. Rajkumar Road 4th Block, Rajajinagar Bengaluru – 560 010 Regional Office:
No.44/45, Leo Shopping Complex Residency Road Cross Bengaluru – 24 By its Authorized Signatory …Appellant (By Sri A.M.Venkatesh, Advocate) And:
1. Madhukumar S/o Krishnappa Aged about 18 years R/at No.46, 1st Main 3rd Cross, Avalamma Chatra Magadi Road, Benglauru-560 091 2. Sri M.Kumar S/o Mariyappa R/at No.11/A, 3rd Cross Bairaveshwaranagar Sunkadakatte, Bengaluru-91 …Respondents (By Sri H.B.Somapur, Adv. for R1;
Notice to R2 held sufficient vide order dated 19.12.2013) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 14.10.2010 passed in MVC No.5676/2009 on the file of the III Additional Senior Civil Judge, Court of Small Causes & Member MACT, Bengaluru awarding compensation of Rs.1,62,760/- with interest @ 6% per annum from the date of petition till deposit.
IN MFA NO.2232/2011 Between:
Sri Madhukumar S/o Krishnappa Aged about 20 years R/at No.46, 1st Main 3rd Cross, Avalamma Chatra Magadi Road, Bengaluru …Appellant (By Sri H.B.Somapur, Advocate) And:
1. M/s The Oriental Insurance Company Limited By its Manager DO-12, No.1001/56 Jayalakshmi Mansion 2nd Floor, Dr. Rajkumar Road 4th Block, Rajajinagar Bengaluru – 560 010 2. Sri M.Kumar S/o Mariyappa Major, R/at No.11/A, 3rd Cross Bairaveshwaranagar Sunkadakatte, Bengaluru-91 …Respondents (By Sri A.M.Venkatesh, Adv. for R1;
Notice to R2 dispensed with vide order dated 19.12.2013) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 14.10.2010 passed in MVC No.5676/2009 on the file of the III Additional Senior Civil Judge, Court of Small Causes & Member MACT, Bengaluru partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFA’s coming on for final hearing this day, the Court delivered the following:
JUDGMENT These two appeals are directed against the judgment and award passed by the III Additional Senior Civil Judge & Member, MACT, Bengaluru, on 14.10.2010 in MVC No.5676/2009, wherein the claim petition preferred by the injured/victim came to be allowed in part and compensation of Rs.1,62,760/- was awarded together with interest @ 6% per annum.
2. In order to avoid confusion and overlapping, the parties, hereinafter are referred in accordance to their respective rankings held before the Tribunal.
3. The appeal in MFA No.3233/2011 is preferred by the insurance company seeking to set-aside the judgment and award and the appeal in MFA No.2232/2011 is preferred by the claimant/victim for enhancement of the compensation.
4. The proceedings before the Tribunal came to be initiated because of a road traffic accident which occurred on 26.07.2009 at 11.15 am, the claimant was crossing the Magadi Road in South to North Direction near Leprosy Hospital, in front of Bapuji School, Bengaluru, a motorcycle bearing Reg.No.KA-02/EX-1644 was driven in a rash and negligent manner dashed against the claimant and because of which, he suffered injuries including fracture of both bones of left leg and other injuries over the body. He claims compensation of Rs.10,00,000/-, wherein the MACT granted compensation of Rs.1,62,760/- as stated supra.
5. Learned counsel Sri A.M.Venkatesh, appearing for the appellant – insurer in MFA No.3233/2011, would submit that the very involvement of the insured vehicle was on false basis. To this effect, learned counsel drawn the attention of this Court to an unexhibited document styled as ‘Emergency case record for Head Trauma’ issued by the NIMHANS Hospital, wherein it is mentioned as “H/o RTA, Pedestrian hit by 4 wheeler while crossing road near Magadi road”. Learned counsel for the appellant-insurer would further submit that the rider of the motorcycle himself took the injured to the latter’s house and thereafter to NIMHANS Hospital. It is also stated that on the very same day, the injured was shifted to Victoria Hospital, Bengaluru for further treatment. In Ex.P.8, the Wound Certificate issued by the Victoria Hospital show that “pedestrian hit by unknown vehicle”. Learned counsel for the appellant-insurer would further submit that, the complaint was lodged by the injured-claimant himself on 07.08.2009 and it is marked as Ex.P.3. Thus, it is quite natural that the history given at the time of admission to the hospital where the injured is taken at the earliest opportunity will be normally preferred.
6. Learned counsel for the appellant-claimant in MFA No.2232/2011 would submit that the delay had occurred in filing the complaint, since the claimant has admitted in the hospital and in fact he was discharged on 10.08.2009. Thus in the context and circumstances, delay in filing the complaint after 11 days need not be given too much of importance.
7. The name of the informant mentioned in the Admission certificate is one Pradeep, incidentally, he is neither the claimant nor the rider and it is an admitted fact that the injured was taken by the rider of the vehicle who caused the accident and mentioning of vehicle as four wheeler, not mentioning the driver or rider’s name is quite understandable as the injured was taken when he was in pain and trauma. Thus, I do not find the liability clamped on the insurance company is to be reviewed. In this connection, I find allowing the claim petition in part by the learned Member does not call for any interference. Hence, the appeal preferred by the insurer fails and it is devoid of merits.
8. Insofar as the quantum of compensation is concerned, learned Member has rightly considered the monthly income of the victim as Rs.3,000/-, as the accident is of the year 2009 and the victim admittedly doing bar- bending work. However, the Tribunal erred in considering the percentage of disability at 12%, wherein the doctor- PW2 has given evidence to the effect that the fracture is mal-united and there are several inabilities suffered by the claimant due to the impact of the injuries sustained in the accident and thereby the doctor assessed the permanent disability to the particular limb at 40% and in respect of whole body it is assessed at 20%. However, considering the nature of the fracture suffered by the claimant and his avocation, the disability taken by the Member seems to be lesser and it should be at 15% to the whole body and to that extent the claimant is entitled for enhanced compensation towards loss of future earning on account of disability, which comes to Rs.3000x12x18x15% = Rs.97,200/- as against Rs.77,760/-.
9. Considering the injuries suffered by the claimant, the amount awarded by the Member under the head pain and sufferings appears to be on the lower side and the claimant is entitled for compensation under this head at Rs.50,000/- as against Rs.35,000/-.
10. Further, the compensation awarded by the Tribunal under the head loss of amenities at Rs.15,000/- seems to be unreasonably low. It is submitted by the learned counsel for the claimant that there is mal-union of the bones and considering the age of the claimant being 18 years and nature of injuries and his avocation, I find that the claimant is entitled for compensation of Rs.40,000/- as against Rs.15,000/- under the head loss of amenities. In all the claimant is entitled for total compensation of Rs.2,22,200/- as against Rs.1,62,760/- together with interest @ 6% per annum from the date of petition till the date of deposit. Hence, the following:
O R D E R (a) The appeal preferred by the insurer in MFA No.3233/2011 stands dismissed.
(b) The appeal preferred by the claimant in MFA No.2232/2011 is allowed in part.
(c) The judgment and award passed by the Senior Civil Judge and MACT, Court of Small Causes, Bengaluru on 14.10.2010 in MVC No.5676/2009 is modified by enhancing the compensation at Rs.59,440/- with interest @ 6% p.a. from the date of petition till the date of deposit.
(d) The insurer shall deposit the award amount including enhanced compensation with interest within 30 days from the date of receipt of certified copy of this order.
(e) Amount in deposit, if any, shall be transmitted to the Tribunal, for disbursal along with LCR.
Kmv* Sd/- JUDGE