IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.696 OF 2013 (MV) BETWEEN:
PADMAVATHI NAIK, AGED ABOUT 68 YEARS, W/O LATE GOPAL NAIK, R/AT CHAKPADE, MURATHANGADY, SANOOR VILLAGE, KARKALA TALUK.
(BY KUM. AKSHITA D JAIN, ADVOCATE FOR ... APPELLANT SRI. PAVANA CHANDRA SHETTY.H, ADVOCATE) AND:
1. NAZEER, AGED ABOUT 30 YEARS, S/O SRI. MOIDEEN, R/AT 5 CENTS, KABETTU, CHOLPADY, KARKALA KASBA VILLAGE, KARKALA TALUK.
2. THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE CO. LTD., UDUPI DIVISIONAL OFFICE, UDUPI.
... RESPONDENTS (BY SRI. K.S.LAKSHMINARASAPPA, ADVOCATE FOR SRI. B.C.SEETHARAMA RAO, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 24-6-2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.8.2012 PASSED IN MVC NO.138/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, KARKALA, 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, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 22/08/2012 in M.V.C.No.138/2010 on the file of the Senior Civil Judge and Additional MACT, Karkala.
2. The accident occurred on 03-6-2009 involving Autorickshaw bearing Reg.No.KA-20-A-2573 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant is housewife aged 65 years as on the date of accident. She sustained fracture of medial and lateral malleoli of (L) ankle and multiple fracture of (L) 2nd to 5th metatarsal.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their separate written statement. Respondent No.1 in his written statement denied the claim petition averments and contended that the offending autorickshaw was insured with respondent No.2-Insurer. Respondent No.2 in its statement denied the claim petition averments but admitted the issuance of insurance policy in respect of offending autorickshaw. It is also stated that the driver of the autorickshaw had no valid and effective driving licence as on the date of accident. Further contended that the claim is excessive and exorbitant. Thus, prayed to dismiss the claim petition.
4. The claimant examined herself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-10. Whereas, the respondents examined RW-1 and got marked documents Exs.R1 to R5(b). Exs.C1 to C5 were marked on behalf of the Court.
5. The Tribunal on assessment of the entire material on record, awarded total compensation of Rs.84,000/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and sufferings 25,000 2. Medical expenses 16,000 3. Special nourishment of food, attendant and 2,000
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 respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the claimant has placed on record Ex.P2-wound certificate and Ex.C2-Disability Certificate, apart from examining PW- 2-Doctor in support of her case. The Tribunal assessed the whole body disability at 18% and failed to award compensation on the head of ‘Loss of income due to disability’. Further, learned counsel submits that the compensation awarded on the other heads are also on the lower side and prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent– Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record including the lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation.
Answer to the said point would be partly in the affirmative for the following reasons.
10. The claimant has placed on record Ex.P2-wound certificate and also examined PW-2-Doctor. The claimant has also placed on record Ex.C2-Disability Certificate, wherein the Doctor has stated that the claimant suffers from 18% permanent disability to left lower limb. Ex.C1 is Discharge summary/case sheet, which would disclose that the claimant was inpatient from 11-6-2009 to 15-6-2009 and she has undergone surgery. As the Doctor has stated that the claimant suffers from 18% disability to the left lower limb, the permanent disability could be taken at 9% to the whole body taking note of the nature of injury. Hence, the permanent disability is taken at 9% for awarding compensation on the head of ‘Loss of income due to disability’. The claimant was inpatient for four days and she has undergone surgery. The compensation awarded on the head of ‘Special nourishment, food, attendant and conveyance expenses’ is on the lower side, for which the claimant would be entitled for another Rs.10,000/- in addition to Rs.2,000/- awarded by the Tribunal. Further, the claimant has placed on record Ex.P8-Final bill issued by Spandana Maternity and General Hospital and Ex.P9-Cash receipt, wherein it discloses that the claimant has paid Rs.24,316/- towards Hospital charges. But the Tribunal awarded only Rs.16,000/- towards medical expenses. The Doctor who was examined on behalf of the claimant has deposed that the claimant was treated as inpatient from 11-6-2009 to 15-6-2009. The Tribunal could not have come to the conclusion that the charges on certain items are exorbitant or could not have disallowed certain sums on the ground that there is no mention of the name of the assisted Doctor during the surgery. The said reasoning is wholly perverse and erroneous. Thus, the claimant would be entitled for medical expenses as claimed at Ex.P8. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.) 1. Pain and sufferings 25,000 2. Medical expenses 24,316
7. Loss of income due to disability (3000x12x7x9/100) 22,680 Total 1,24,996 11. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,24,996/- as against Rs.84000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit would be as ordered 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