IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2019 PRESENT THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD M.F.A.No.10449 OF 2018 (MV) BETWEEN:
The Manager The Oriental Insurance Company Limited Laxmi Complex, Subbash Road Koppa Taluk By its Regional Office Oriental Insurance Company Limited No.44/45, 4th Floor Leo Shopping Complex Residency Road Bangalore-560 025 Represented by its Deputy Manager …. Appellant (By Sri.P.B.Raju, Advocate) AND 1. Sri.Vishwanath.N S/o Narayan Saregara Aged about 38 years Auto Owner and Coolie work R/at Baggunji, Heddese Uttameshwara Village Koppa Taluk Chikkamagaluru District-577126.
2. Sri. Rudresha @ Rudrappa S/o Shekarappa Driver Aged about 45 years R/at Balagadi Binthravalli Village Koppa Taluk-577126.
3. Sri. N.K.Sathisha S/o Kalasappa Naika Aged about 55 years Businessman R/at Doddthota Niluvagilu Village Koppa Taluk-577126. … Respondents This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated: 20.09.2018, passed in MVC No 302/2017 on the file of the Senior Civil Judge and JMFC and MACT, N.R.Pura itinerate at Koppa, awarding compensation of Rs.32,91,600/- with interest at the rate of 9% P.A. from the date of petition till the date of realization.
This MFA, coming on for admission, this day, NARENDRA PRASAD J., delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 20.09.2018 passed in MVC No.302/2017 by the Senior Civil Judge & JMFC at N.R.Pura, Itinerate at Koppa and MACT (hereinafter referred to as the ‘Tribunal’ for the sake of convenience).
2. Parties herein shall be referred to in terms of their status before the Tribunal, for the sake of convenience.
3. Respondent-claimants filed the claim petition seeking compensation on account of the injuries sustained by him in an accident that occurred 03.01.2017 at about 3.00 p.m. when claimant was proceeding in his Piaggio Ape Auto bearing registration No.KA-18/A-2008 as an inmate, which was driven by one Prabhakar, to go to Koppa from his house. While they were proceeding near Kiru Narve Narasipura village on Koppa-Jayapura road, the driver of TATA indica car bearing registration No.KA-14/A- 8129 drove the same in a rash and negligent manner with excessive speed and dashed to the auto in which claimant was traveling. Due to the accident, claimant suffered grievous injuries. Immediately, he was shifted to MSDM Taluk Government Hospital Koppa. Since the injuries were severe he was taken to KMC Hospital, Manipal and he took treatment in the said hospital as an inpatient from 03.01.2017 to 13.01.2017 and from 28.01.2017 to 13.02.2017 and he was in ICU for four days. He was operated upon his spinal cord and he was bed-ridden and not in a position to walk and to do his daily routine work. Even after discharge he was taking treatment as an outpatient. After recovering from the injuries he filed the claim petition seeking compensation.
4. The claimant contended that he was aged about 37 years, was an auto owner and also doing coolie work and earning Rs.10,000/- per month. Due to the injuries he was unable to stand, walk and do his daily work. He was bed-ridden and had lost income from the date of the accident. He was unable to sit without the help of others. He was facing difficulties in eking out his livelihood and also to repay the loans taken for his medical expenses. He had spent more than Rs.50,000/- for the repair of the auto. Therefore, he sought compensation on various heads.
5. In response to the notice issued, respondent No.1, driver of the offending vehicle and respondent No.3 Insurance Company appeared and filed statement of objections.
6. Respondent No.1 driver of the offending vehicle denied the very accident and also denied the injuries caused to the claimant. He also denied that claimant had spent Rs.8,00,0000./- towards medical expenses and requires a sum of Rs.5,00,000/- for further treatment. He admitted that he was the driver of the offending vehicle and at the time of the accident he was having a valid and effective driving licence. He also contended that the offending vehicle was insured with the third respondent and the policy was valid at the time of the accident. The third respondent - Insurance Company has also denied the entire case of the claimant and contended that the accident has occurred due to the negligence of the claimant. It was also contended that the driver of the offending vehicle was not having a valid and effective driving licence and the insurance police was valid from 08.09.2016 to 07.09.2017. The insured had not produced the vehicle documents and there was breach of policy conditions and prayed for dismissal of the petition.
7. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:-
“1. Whether the petitioner proves that, on 03.01.2017 at about 3.00 p.m. he has sustained grievous injuries near Kiru Narve, Narasipura Village, Koppa-Jayapura road, Koppa Taluk due to rash and negligent driving of TATA Indica car bearing registration No.KA- 14/A-8129 driven by 1st respondent which was dashed against Ape Auto bearing registration No.KA-18/A-2008 in which the petitioner was proceeding?
2. Whether the petitioner is entitled for compensation? If so, at what rate/quantum? From whom?
3. What order or award?
8. In support of his case, claimant examined himself as PW1 and produced eighty four documents as Exs.P-1 to P-84. While Court witness Dr.Vinod Kumar was examined as CW1 and got marked three documents marked as Exs. C2 to C3.
9. On the basis of the said evidence, the Tribunal by judgment and award dated 20.09.2017 awarded compensation of Rs.32,91,600/- with interest at the rate of 9% p.a. Being aggrieved by the excessive compensation granted by the Tribunal, the Insurance Company filed this appeal seeking for reduction of compensation.
10. We have heard learned counsel for the appellant Insurance Company and perused the judgment and award passed by the Tribunal.
11. Sri P.B.Raju, learned counsel for the appellant firstly contended that the Tribunal has erred in granting a compensation of Rs.2,10,000/- in the category of ‘pain and suffering’. The Tribunal has failed to appreciate that as per the hospital records the injured claimant was diagnosed with Traumatic Cervical Cord injury and that the doctor had observed that there is traumatic quid paresis and that after surgery, there was gradual improvement on all the limbs. He was an inpatient for only 66 days. He secondly contended, the Tribunal has erred in granting a higher compensation in the category of ‘attendant charges’ at Rs.2,00,000/-. As per the discharge summary issued by the hospital it indicated that nature of the treatment was conservative and there was no radiological abnormality. The Tribunal has erroneously come to the conclusion that they are entitled for Rs.2,00,0000/- as attendant charges. Hence, he sought for allowing the appeal and reduction of compensation after hearing the respondents.
12. Having heard learned counsel for the appellant it is noted that claimant had suffered injury due to the accident that occurred on 03.01.2017 on account of the rash and negligent driving of the driver of TATA Indica car bearing registration No.KA-14/A-8129. Due to the accident he suffered the following injuries, as per Ex.P6 - wound certificate:
“1. Lacerated wound of 2 cm. x 1 cm. in the upper lip.
2. Swelling and tenderness in the nose.
3. Bleeding from xylene.
4. Lacerated wound in the chin region of right 2 cm. x 1 cm.
5. CLW of site 5 cm. x 2 cm. x 1 cm. and 3 cm. x 2 cm. x 1 cm. on the head in parietal region of right side.
6. Loss of sensority and movement in both upper and lower limbs.”
13. Dr.Vinod Kumar was examined as a Court witness (CW1). As per his evidence there was disability to the extent of 91.25% to the whole body and claimant was an inpatient for a total period of 66 days. Therefore, considering the nature of injuries and considering the medical documents, according to us, the Tribunal was justified in awarding a compensation of Rs.2,10,000/- towards ‘pain and suffering’.
14. According to CW1 doctor, there is disability to an extent of 91.25% to the whole body. Claimant has disability in all his limbs with decreased sensation below D4 level. Claimant has to live with the support of tube for passing of urine and the doctor has specifically deposed that there is very little chance of improvement and claimant has difficulty in his daily activities and for his earnings. The doctor further deposed that throughout the lifetime claimant would require an attendant for self care. Considering the documents produced by the parties and the evidence adduced by the doctor, in our view, the Tribunal was justified in granting compensation of Rs.2,00,000/- towards the attendant charges. Therefore, we do not find any merit in the appeal. Hence, the appeal is dismissed.
The amount in deposit to be transmitted to the Tribunal.
Sd/- JUDGE Cm/-
Sd/- JUDGE