IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.4960 OF 2012 (MV) BETWEEN:
Prema W/o. Shambhu, Aged about 32 years, Residing at Horalavadi Village, Kasaba Hobli, Nanjangud Taluk, Mysuru District. …Appellant (By Sri. Doreswamachar S.P., Advocate for Sri. P. Mahesha, Advocate) AND:
1. N.Rajashekara, S/o. Late Nagappa, Aged about 34 years, Bus driver, Residing at: Nerale Village, Kowlande Hobli, Nanjangud Taluk, Mysuru District- 577201.
2. Nagendra S/o. Late Narasappa, Aged about 47 years, Residing at:15/237, V.H.P. School back side, Court Road, Chamarajanagara-572 831.
3. United India Insurance Company Limited, No.305, Artchamps Mansion, Dr. Rajkumar Road, Sadaran Extension, Kollegal -571 440, Mysuru District, Represented by its Branch Manager. …Respondents (By Sri. Ravish Benni, Advocate for R-3; R-2 Served, unrepresented;
R-1-Notice dispensed with vide order dated:17.02.2014) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:14.09.2011 passed in MVC No.122/2010, on the file of MACT, Civil Judge (Sr. Dn). Nanjangud, 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 This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Senior Civil Judge & M.A.C.T., Nanjangud,(hereinafter for brevity referred to as ‘Tribunal’), by judgment and award dated 14.09.2011, passed in MVC No.122/2010.
2. The summary of the case of the claimant in the Tribunal is that on 20.4.2010, at about 1.30 p.m., while the claimant was travelling in a bus bearing registration No.KA-07-7000, from Mudukutore to Nanjangud, due to the rash and negligent driving of the bus by its driver while it was going near a village called Hasuvatti in T.Narasipura Taluk, it dashed against a fixed stone on the side of the road and simultaneously, the tyre of the wheel of the bus got burst, due to which accident, she sustained grievous injuries. The claimant also stated that due to the injuries sustained by her, she incurred a huge medical expenses for treatment and due to the permanent partial disability, she could not pursue her avocation as an agriculturist any more. She has also stated she was earning an income of `5,000/- per month as an agriculturist at the time of the accident. She has claimed compensation of a sum of `4,12,000/- from the respondents holding them liable being driver, owner and insurer of the vehicle.
3. Before the Tribunal, the claimant got herself examined as PW-1 and examined Dr.B.G.Sagar as PW-2 and got marked documents from Exs.P-1 to P-64. Neither any witnesses were examined nor any documents were marked on behalf of the respondents.
4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
Amount (`) Pain and sufferings 10,250-00 Loss of earning 1,300-00 Medical expenses 7,840-00 Food, diet, transportation and attendant charges 6,000-00 Physical disability 54,000-00 Total 79,390-00 5. The Tribunal awarded compensation of a sum of `79,390/- with interest at 6% per annum thereupon and directed the Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
6. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
9. The present appeal being the claimant’s appeal and the respondents having not preferred either cross- objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
9. A perusal of the wound certificate marked at Ex.P-3, copy of which is produced by the appellant for perusal and return, goes to show that in the accident in question, the appellant has sustained fracture of right calcaneum and dislocation of tala-navicular right joint. The evidence of the doctor, as well the wound certificate further go to show that she was treated for the same and dislocations were fixed by using `K’ wires in a surgical procedure.
10. Considering the nature of the injuries, the claimant must have suffered a considerable pain. She was also treated as an inpatient in the hospital for a period of not less than thirteen days. In that view of the matter, the argument of the learned counsel for the appellant that the quantum of compensation awarded by the Tribunal towards pain and suffering found to be a bit shorter than the reasonable requires consideration. As such, the claimant/appellant is entitled for enhancement by a sum of `10,000/- towards `pain and suffering’.
11. Since the compensation awarded towards medical expenditure is based on actuals and after considering the medical bills and prescriptions produced by the claimant from Exs.P-11 to P-48, I do not find any reason to modify the same.
12. The quantum of compensation awarded towards loss of income during the laid up period, towards food, diet, which is at `3,000/- + `6,000/-, being reasonable, does not warrant any interference.
13. Learned counsel for the appellant also argued that the quantum of compensation awarded towards the permanent physical disabilities suffered by the claimant is on the lower side. Per contra, learned counsel for the respondent-Insurance Company vehemently submitted that the Tribunal has awarded a just compensation by considering the evidence placed before it.
14. The claimant has alleged that she was an agriculturist as at the time of the accident and was earning a sum of `5,000/- per month. However, due to the injuries sustained by her in the accident, she could not continue her avocation since she is suffering with permanent partial disability, which according to the doctor is 30%. PW-2 – doctor, has given a supportive evidence to the effect that the claimant is suffering with 30% disability to a particular limb of the body which had sustained injury. The Tribunal has rightly assessed the percentage of the permanent partial disability at 10%. Undisputedly, the injured was aged 35 years as on the date of the accident, as such, the multiplier taken by the Tribunal is `15’. However, the Tribunal has committed an error by taking the income of the claimant at `3,000/- per month. The co-ordinate Benches of this Court are taking the notional income for the relevant year of 2010 at `5,000/- per month. The claimant also has stated that she was earning a sum of `5,000/- per month. Thus, the income of the claimant ought to have been taken at `5,000/- per month by the Tribunal. When the income of the claimant is taken at `5,000/- per month, her entitlement for compensation towards `loss of future income/permanent partial disability’ would come at `5,000 x 12 x 15 x 10/100 = `90,000/-. After deducting a sum of `54,000/- awarded by the Tribunal towards physical disability, for the difference amount of `36,000/- the claimant is entitled as an enhancement.
15. The Tribunal has not awarded any compensation towards `loss of amenities’. Considering the nature of injuries and disability, the claimant is entitled for a sum of `10,000/- under the said head.
16. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, she is entitled for enhancement of compensation in a sum of `56,000/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 14.09.2011, passed by the learned Senior Civil Judge & MACT, Nanjangud, in MVC.No.122/2010, is modified to the extent that the compensation awarded at `79,390/- is enhanced by a sum of `56,000/-, thus fixing the total compensation at `1,35,390/- (Rupees One lakh thirtyfive thousand three hundred ninety only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 3rd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
Sd/- JUDGE bk/