IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.3645/2013(MV) BETWEEN:
SMT. R. LATHA W/O SRI. V. KRISHNA MURTHY AGED ABOUT 30 YEARS NO.124, MUNESHWARA TEMPLE ROAD BANDEPALYA, BANGALORE-560 008 ... APPELLANT (BY SMT. NALINA MOHAN, ADVOCATE FOR SHRI. N.C. MOHAN, ADVOCATE) AND:
1. SRI. S. SELVAMANI S/O SRI. P.S. SUBRAMANI K.R.S. CONSTRUCTION & EQUIPMENTS NO.10/23, KR ROAD NEAR PANCHAMUKHI TEMPLE HOSKOTE TOWN BANGALORE-560 097 2. CHOLAMANDALAM MS GIC, UNIT NO.4, 9TH FLOOR (LEVEL-06) GOLDEN HEIGHTS COMPLEX 59TH ‘C’ CROSS, INDUSTRIAL SUBURB RAJAJINAGAR 4TH ‘M’ BLOCK BANGALORE-560 010. ... RESPONDENTS (BY SHRI. V.P. VENKATAPATHI, ADVOCATE FOR R2; V.O.DATED 23.9.14 NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.11.2012 PASSED IN MVC NO.3630/2010 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, 26TH ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard Smt.Nalina Mohan, learned advocate for the claimant and Shri.Y.P.Venkatapathi, learned advocate for the Insurer.
2. This appeal is presented by an injured claimant who suffered following injuries in a road traffic accident which occurred on 24.12.2009:
1. Head injury diffuse cerebral edema with tentorial SAH.
2. Panfacial fractures (Bilateral paramphysal fracture maxilla bilateral lefort I fractures, fracture palate.
3. Degloving injury to left foot.
4. Right acromio-clavicular joint dislocation.
5. Tracheomalacia.
3. It is submitted that, while claimant was standing near a Temple on the Hosur road, a Cement Mixer lorry dashed against her due to which she suffered aforementioned injuries. On consideration of the materials on record, the Tribunal has awarded a compensation of Rs.3,33,680/-. Feeling aggrieved, the claimant has filed this appeal seeking enhancement of compensation.
4. Smt.Nalina Mohan, learned Advocate for the claimant contended that the claimant was working as a Tailor and she was hospitalized for 55 days. The Tribunal has not appreciated the evidence on record. Compensation awarded under the heads ‘diet, conveyance and attendant charges’, ‘pain and suffering’ and ‘loss of amenities’ is inadequate. Accordingly, she prays for suitable enhancement.
5. Shri.Y.P.Venkatapathi, learned Advocate for the insurer argued in support of the judgment and award passed by the Tribunal.
6. Undisputed facts are that the claimant, who claims to be a tailor in a firm called M/s. Textile International, Bangalore suffered injuries. She was hospitalized for 55 days. Claim is with regard to compensation awarded under the heads ‘attendant charges’, ‘pain and suffering’, ‘loss of amenities’ and ‘discomfort’. Admittedly, the accident has occurred in the year 2009. No evidence was brought before the Tribunal to prove the earning capacity of the claimant. In the absence of any evidence, this Court has consistently taken the earning capacity of an able- bodied person at Rs.5,000/- per month in the year 2009. The fractures recorded hereinabove would cause distress and pain to an injured victim, particularly, to chew and while making any facial movement. In the circumstances, the learned Advocate for the appellant is right in pleading for enhancement of compensation under the aforementioned heads.
7. The Tribunal has recorded that the injuries are grievous in nature and awarded Rs.30,000/- towards ‘pain and suffering’. It is relevant to notice that claimant has suffered fracture of left and right maxilla, comminuted fracture of mandible, bilateral subcondlyar and nasal bone. Keeping in view the date of accident and seriousness of the injuries, the compensation under the head ‘pain and suffering’ is quantified at Rs.50,000/-. The learned Tribunal has rightly recorded that even if the injuries are united, pain and inconvenience will persist. Keeping in view the fact that the injuries noted above causes inconvenience while eating and drinking, the compensation under the head ‘loss of amenities’ is also enhanced to Rs.40,000/-.
8. In the circumstances, the quantum of compensation is re-computed as follows:
7. Medical Expenditure : Rs.2,04,960/-
TOTAL : Rs.3,68,680/-
Less: Compensation awarded by the Tribunal : Rs.3,33,680/-
Enhanced compensation : Rs. 35,000/-
9. Hence, the following order:
(i) The appeal is allowed in part.
(ii) The compensation is enhanced to Rs.3,68,680/- with interest at 6% p.a. from the date of claim petition till the date of deposit.
(iii) The Insurer is directed to deposit the enhanced compensation of Rs.35,000/- with interest at 6% p.a. from the date of petition till the date of deposit before the Tribunal within a period of eight weeks from the date of receipt of a copy of this order.
(iv) Disbursement of compensation shall be as directed by the Tribunal.
No costs.
Sd/- JUDGE SPS