IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B V NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.1734 OF 2015 (MV I) BETWEEN:
MR.PRAKASH POOJARY, S/O MAHABALA POOJARY, AGED ABOUT 35 YEARS, R/AT ASHOKA NIVASA, MATHIBETTU, VARANGA VILLAGE, MUNIYAL POST, KARKALA TALUK, UDUPI DISTRICT - 572101. …APPELLANT (BY SRI K.PRASANNA SHETTY, ADVOCATE) AND:
1. MR.DINAKARA S POOJARY, S/O SHEENA POOJARI, AGED ABOUT 47 YEARS, R/AT JALALA NIVASA, MATHIBETTU, VARANGA VILLAGE, MUNIYAL POST, KARKALA TALUK, UDUPI DISTRICT - 572101.
2. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE: KARKALA BRANCH, SRINIVASA COMPLEX, A.S.ROAD, KARKALA, REP. BY ITS BRANCH MANAGER.
3. MR.VEERABHADRAIAH G, S/O GANGA HANUMANTHAIAH G, AGED ABOUT 56 YEARS, R/AT NO.34, THIPPENAHALLI, NAGASANDRA POST, BENGALURU – 562001. …RESPONDENTS (BY SRI Y.P.VENKATAPATHI, ADVOCATE FOR R2; VIDE ORDER DATED 20.08.2015 NOTICE TO R1 AND R3 ARE DISPENSED WITH) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 25.11.2014 PASSED IN MVC NO.153/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, AMACT, KARKALA, PARTLY ALLOWING THE CLAIM PETION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the claimant who was injured in the motor vehicle accident for seeking enhancement of compensation and for modification of judgment and award dated 25.11.2014 in MVC No.153/2014 passed by the Senior Civil Judge and Motor Accident Claims Tribunal, Karkala (hereinafter referred to as ‘the Tribunal’ for the sake of brevity).
2. The facts briefly stated are that, on 04.11.2014 at about 9.15 p.m. the appellant injured was proceeding along with Kiran on a motorbike No.KA-20/ U- 3866 from Mudradi to Muniyalu. At that time, an Indica car bearing registration No.KA-05/D-5576 came from Muniyalu side in a rash and negligent manner and dashed to the motorcycle. Due to the said impact, the appellant sustained grievous injuries. The injured appellant was shifted to Kasturba Hospital, Manipal, where he took treatment as an inpatient from 4.11.2013 to 25.11.2013. The accident occurred due to the rash and negligent driving of the driver of Indica car. Therefore, respondent Nos.1 to 3 being driver, insurer and the owner of the vehicle respectively are liable to pay the compensation.
3. On filing of the claim petition and service of notice, respondent Nos.1 and 3, namely the previous and present RC holders of the Indica car, remained absent and they were placed ex parte. Respondent No.2 insurance company filed objections denying the averments made in the claim petition regarding the injuries sustained by the appellant, his income, age, etc. Further, it was contended that there was contributory negligence on the part of the claimant and the petition was bad for non-joinder of necessary parties.
4. On the basis of rival pleadings, the Tribunal framed the following issues:
“ i. Whether the petitioner proves that he sustained injuries in a Motor Vehicle Accident on 04.11.2013 at 9.15 p.m., in Mathibettu, Mudradi – Karkala Main Road, Varanga Village, due to rash and negligent driving of the Indica Car bearing Reg No.KA-05/D-5576 by its driver as contended?
ii. Whether the 2nd respondent proves the contributory negligence?
iii. Whether the 2nd respondent proves that the petition is bad for non-joinder of necessary parties?
iv. Whether the 2nd respondent proves that the 1st respondent has violated the permit condition and the vehicle is used otherwise than in accordance with the conditions of the policy?
v. Whether the petitioner is entitled for the compensation amount, if so what is the amount and from whom it is recoverable?
vi. What Order or Award ?”
5. The petitioner/injured got examined himself as PW.1 and one witness as PW.2, EXs.P1 to P61 were marked on his behalf. Further, EX.C1 to C4 were marked during the evidence of petitioner side. No oral evidence was let-in on behalf of respondent insurance company, however, the insurance policy was marked with consent as EX.R1.
6. On appreciating the oral and documentary evidence placed on record, the Tribunal came to the conclusion that the accident occurred due to the rash and negligent driving of the driver of Indica car and awarded a total compensation in a sum of Rs.2,94,245/- under several heads along with interest at the rate of 6% p.a. from the date of petition till the date of realization. The details of compensation awarded are as under: Compensation Head Compensation Amount Pain and agony Rs.40,000/- Loss of amenities of life Rs.10,000/-
Rest, nourishment and attendant charges Rs.10,000/-
Medical expenses Rs.1,83,200/- Future Medical Expenses Rs. 20,000/- Loss of income Rs.26,045/-
Conveyance Rs.5,000/-
Total Rs.2,94,245.-
7. Being aggrieved by the judgment and award passed, this appeal is preferred by the appellant/injured claimant contending that the Tribunal has failed to appreciate the evidence placed on record namely, the wound certificate and medical bills. The Tribunal has committed an error in not appreciating the evidence of PW.2 -doctor and also the contention regarding purchase of an artificial limb. The compensation awarded towards pain and suffering, loss of amenities of life, rest, nourishment, future medical expenses and other incidental charges is too meager and disproportionate. The appellant injured being a teacher in government school is deprived of promotion because of the disability caused to him on account of the injuries sustained in the accident. The compensation awarded is on the lower side. Due to the disability, the appellant is finding it difficult to attend to his work and he is compelled to take assistance from others and to hire a taxi to go to the school.
8. Heard the learned counsel for the appellant as well as the respondent Insurance Company. Perused the judgment and award and the original record.
9. In the present case the appellant had filed IA No.1/2016 seeking permission to produce additional documents. The said IA was allowed and the matter was remanded back to the Tribunal with a direction to record a finding on the documents produced as additional evidence by providing a fair and reasonable opportunity to both the parties to lead their evidence. There was a specific direction that the evidence shall be recorded on the following point/issue:
“ (1) Whether the claimant proves that he has incurred expenditure in a sum of Rs.10,05,000/- or any other substantial sum for purchase of the artificial limb from ottobock health care?”
10. After recording the evidence and finding given on the aforesaid issue the file was sent to this Court.
11. Even though the respondent-insurance company had taken up a defence regarding contributory negligence, the Tribunal, on appreciating the oral and documentary evidence, had given a finding that the accident was due to the rash and negligent driving of the driver of Indica car. Said finding is not challenged by the respondent-insurance company. The present appeal is filed by the claimant for enhancement of the compensation.
12. As far as computation of quantum of compensation by the Tribunal is concerned, we have given our anxious consideration to the evidence placed on record. In the present case, the injured victim has suffered permanent disability. EX.P7 is the wound certificate and EX.C3 is the Disability certificate issued by KMC Hospital, Manipal.
13. The contents of EX.P7 wound certificate disclose the following injuries:
“Amputation of right lower limb below the knee joint, comminuted supracondylar fracture of right femur, right inferior public ramus fracture with symphysis diastasis and fracture of both bones of right forearm”.
14. Contents of EX.C3 disclose that the injured victim has right knee amputation and he has 80% of disability in his right lower limb function permanently and he has 6% disability in his right upper limb.
15. PW.2 Professor of Orthopedics was examined and he has given evidence regarding the disability of the claimant by referring to the aforesaid documents and x-
rays. But, the Tribunal has awarded compensation of Rs.40,000/- only towards pain and suffering. Considering the nature of injuries and amputation sustained by the appellant, we are of the opinion that the compensation awarded towards pain and suffering is too less and is disproportionate. Hence, we are inclined to award compensation of Rs.1,50,000/- towards pain and suffering.
16. The appellant injured has suffered permanent disability. In that event, efforts should always be made to award adequate compensation not only for the physical injury and treatment but, also for the loss of earnings and victim’s inability to lead a normal life and enjoy the amenities which he would have enjoyed but for the disability caused from the accident. In the case of K Suresh vs. New India Assurance Co. Ltd., ((2012) 12 SCC 274) the Hon’ble Supreme Court has adverted to earlier judgments in Rameshchandra vs. Randeer Singh, ((1990) (3) SCC 723) and B Kodandapani vs. Tamil Nadu State Transport Corporation Ltd., ((2011) 6 SCC 420) has held that the compensation can be granted for disability as well as for loss of future earnings, for the first head which relates to the impairment of person’s capacity while the other, leads to the sphere of pain and suffering and loss of enjoyment of life by the person himself.
17. In view of the principles laid down in Aravind Kumar Mishra vs. New India Assurance Co. Ltd., ((2010) 10 SCC 254) and Rajkumar vs. Ajay Kumar, ((2011) 1 SCC 343) it is necessary to follow the guidelines in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. As observed by the Hon’ble Supreme Court in the above referred cases, the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Motor Vehicles Act, 1988 make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an enquiry into the claim for determining the just compensation. The Tribunal should, therefore, take an active role to ascertain the true and correct position so that it can assess the just compensation. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human lives. If it does, as it must, it must provide a realistic compensation for the pain of loss and the trauma of suffering.
18. In the present case, the appellant injured is a Government servant. On account of disability, namely, the loss of right leg, he has not lost any income and he has not been deprived of any future prospects such as promotion and other incentives in his Government service. But, he has certainly been deprived of enjoyment of life like an ordinary person. On account of disability caused he must have been put to lot of inconvenience and also compelled to be a dependent on others for his daily necessities. Thus, he is unable to lead a normal life and enjoy amenities which he would have enjoyed but for his disability. Thus, we are inclined to award compensation of Rs.3,00,000/- towards loss of amenities.
19. As could be seen from the medical records, the injured victim had sustained fractures and amputation. As a result of which, he had spent time in the hospital as an inpatient and he must have taken rest at home for several months. Considering these aspects, a sum of Rs.50,000/- is awarded towards nourishment, attendant charges and other incidental expenses.
20. Considering the medical bills, receipts etc., the Tribunal has awarded a sum of Rs.1,83,200/- towards medical expenses. The same has not been disputed by the insurance company. Thus, the sum awarded by the Tribunal towards medical expenses is retained.
21. Considering the nature of injuries and the treatment undergone by the injured claimant, a sum of Rs.20,000/- awarded by the Tribunal towards future medical expenses is retained.
22. The appellant-insured has claimed compensation towards purchase of artificial limb. In this regard, the appellant had produced additional evidence before this court. As such, the matter was remanded to the Tribunal for recording evidence and to give finding on the issue framed by this Court regarding purchase of artificial limb. As per the directions of this Court, the Tribunal has recorded the evidence and given a finding that the injured victim has purchased an artificial limb at the cost of Rs.10,05,000/-. EXs.P.62 to EX.P.64(b) are the records in respect of purchase and fixation of artificial limb. The insurance company has disputed the same. During the cross examination, it is only suggested that EXs.P.62 to P.64 are concocted documents for the purpose of claiming more compensation, but the said suggestions are denied. Considering the oral and documentary evidence placed on record, a sum of Rs.10,05,000/- is awarded towards purchase of artificial limb.
23. The Tribunal has awarded compensation of Rs.26,045/- towards loss of income during the period of treatment. It is pertinent to note that the appellant was admitted to hospital and he has taken treatment as an inpatient from 04.11.2013 to 03.03.2014. EX.P58 is the certificate issued by the Vice Principal of Government Pre- University College, Hebri, to show that he was on medical leave. During the said period, the appellant must have been compelled to go on earned leave in order to take treatment. Considering this aspect, the Tribunal has rightly awarded compensation of Rs.26,045/- for the reason that the appellant/injured had lost his earned leave on account of the injuries sustained in the accident. In our opinion, the compensation awarded towards loss of income is proper and justified.
24. In the result, the re-assessed compensation is as under:
Pain and agony Rs.1,50,000/-
Loss of amenities and disability Rs.3,00,000/-
Medical expenses Rs.1,83,200/-
Incidental charges including conveyance, attendant charges, nourishment Rs.50,000/-
Future Medical expenses Rs.20,000/-
Loss of income on account of leave Rs.26,045/-
Cost of artificial limb Rs.10,05,000/-
Total Rs.17,34,245/-
25. The appeal is allowed in part. The re-assessed compensation is Rs.17,34,245/- which shall carry interest at the rate of 6% p.a. from the date of claim petition till realization.
The respondent/insurance company shall deposit the re-assessed compensation with interest within a period of four weeks from the date of receipt of certified copy of this judgment by taking into consideration the amount already deposited by the insurer.
Out of the enhanced compensation, a sum of Rs.5,00,000/- shall be deposited in any nationalized bank or post office for an initial period of ten years. The appellant shall be entitled to draw periodical interest on the said deposit.
The balance compensation shall be released to him after due identification.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE ykl