IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL MFA No.10909/2010 (MV) Between:
RAJENDRA BASAVANAL S/O.LATE SHIVALINGAPPA OCC: COMMISSION AGENT, L 624, ITTINA SOUPERNIKA, KAIKONDRAHALLI, SARJAPURA ROAD, BANGALORE - 560 035 PERMANENT ADDRESS No.6/1, U B HILL, DHARWAD-580 001. .. APPELLANT (By Smt.NALINI VENKATESH, ADVOCATE) AND 1. THE MANAGING DIRECTOR M/S.KAMATH TOURISTS No.227, LALBAGH WEST GATE, R V ROAD, V V PURAM BANGALORE 560 004.
2. THE ORIENTAL INSURANCE COMPANY LTD, DIVISION No.4, No.49, II FLOOR, JYOTHI MAHAL, ST.MARKS ROAD, BANGALORE-560 001 REP BY ITS MANAGER. .. RESPONDENTS (By Sri E S INDIRESH, ADVOCATE FOR R2, R1 – REMAINED EXPARTE BEFORE THE TRIBUNAL V/C/O DTD:15.7.2011) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.09.2010 PASSED IN MVC NO.2807/2009 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the appellant/claimant seeking enhancement of compensation by assailing the judgment and award passed by the MACT, (SCCH:15), Bengaluru in MVC No.2807/2009 dated 1.9.2010.
2. Heard. Appeal is admitted and with the consent of the leaned counsel appearing for the parties, it is taken up for final disposal.
3. Brief facts leading to the case are that,-
On 24.11.2007 at about 00.30 hours when the claimant was traveling in a private bus bearing Regn.
No.KA-01-B-5171 from Haveri to Ranebennur, when the said bus came at Thotada Yellapura village, driver of the bus drove the same rashly and negligently and fell into the ditch and as a result of the same, the claimant sustained grievous injuries. Immediately he was shifted to Chigateri District Hospital at Davangere and thereafter he was shifted to City Central Hospital Private Ltd., Davangere, wherein he was admitted as an inpatient for two days. He underwent operation and discharged on 5.12.2007. It is further contended that he was working as commission agent for printing and packaging and earning Rs.5,000/- p.m. Due to the accident, he has suffered loss of income for having sustained injuries. Hence, he filed the claim petition for claiming compensation.
4. In pursuance to the notice, the respondent No.1 did not appear and he was placed exparte. Respondent No.2 appeared and filed its written statement denying the averments made in the petition, further contended that the said vehicle has been insured as on the date of accident and liability is subject to the terms and conditions of the policy. It is further contended that the liability of the insurer is subject to terms and conditions of the policy.
5. On the basis of the above pleadings, the Tribunal has framed the following issues:
1. Whether the petitioner proves that on 24.11.2007 at about 12.30 a.m. when he was traveling in a bus bearing No.KA-01-B- 5171 near Thotada Yellapura village, he met with an accident due to actionable negligence on the part of its driver and that as a result he sustained grievous injuries?
2. Whether the petitioner is entitled for compensation? If so what amount and from whom?
3. What order or award?
6. In order to prove the case, the claimant came to be examined as PW1 and got examined two more witnesses as PWs.2 and 3 and got marked the documents as Exs.P1 to P12. On behalf of respondents, they have not led any evidence and got marked any documents.
7. After hearing the parties, the Tribunal has passed the impugned judgment and award. By assailing the same, the claimant/appellant is before this Court.
8. The main grounds urged by the learned counsel for the appellant/claimant are that though the appellant/claimant has sustained compression fracture of L1 vertebra and he was admitted in the hospital as an inpatient and PW3 – Doctor, who attended the claimant, has deposed that, the claimant has sustained injury to spinal chord, the Tribunal has awarded meager compensation. He further contended that the Tribunal has not awarded compensation towards some of the medical bills only on the ground that the said bills are computerized bills and do not bear the signatures. He further contended that the claimant has claimed the medical bills to an extent of Rs.3,00,000/-. But the Tribunal has awarded only a sum of Rs.1,13,093/-. She further contended that the compensation awarded under the head `loss of amenities and pain and suffering’ is also on the lower side. On these grounds, she prays for enhancement of compensation by allowing the appeal.
9. Per contra, learned counsel appearing for respondent No.2-Insurance Company has vehemently argued and contended by justifying the judgment and award. He contends that the compensation awarded under the various heads is just and reasonable and there are no good grounds to enhance the compensation. On these grounds, he prays for dismissal of the appeal.
10. The accident in question, so also the offending vehicle insured with respondent No.2 – Insurance Company is not in dispute.
11. As could be seen from the judgment and award, the Tribunal after taking into consideration the injuries suffered by the claimant/appellant has awarded the compensation on following heads:
Pain and sufferings Rs. 40,000/- Medical expenses Rs.1,13,090/-
Loss of earning during the laid up period Rs. 16,000/-
Loss of amenities Rs. 10,000/-
Total Rs.2,09,090/-
12. It is the specific contention of the learned counsel for the appellant that the compensation awarded under various heads is on the lower side. It is further contended that the Tribunal after considering the fact that the bills are computerized bills and do not bear the signatures and on that ground, the compensation awarded is on the lower side. As could be seen from the judgment and award at para-13, the Tribunal has discussed that the claimant has produced Ex.P4 – medical bills amounting to Rs.1,93,069/- and after considering carefully, the said medical bills at Sl.Nos.12 and 23 are computerized bills and do not bear signature and Sl.No.24 is advance bill and the said advance bill is totaling to an amount of Rs.94,976/-. After deducting the same, the Tribunal has awarded an amount of Rs.98,093/-. As could be seen from the records, even though the computerized bills do not bear signature of the competent authority, but they have been issued by the said hospital. If the said bills are reassessed, with the consent of both the counsel appearing on behalf of the appellant as well as the respondents, the said amount of the bill is only Rs.20,000/-, as such an amount of Rs.20,000/- is added. There is no dispute to award the said amount under the head medical expenses. Insofar as the compensation awarded under the head `food, nourishment, conveyance, attendant charges and followup treatment’, the Tribunal has awarded an amount of Rs.15,000/-. But taking into consideration the injuries to spinal chord sustained by the claimant, the said amount appears to be on the lower side. In that light, another additional sum of Rs.20,000/- is awarded under the said head. In such circumstances, it is going to be justified. Insofar as the compensation awarded under the head `pain and suffering, loss of amenities and other incidental charges’, they appear to be just and proper and it does not require any interference at the hands of this Court and the same is affirmed.
13. In the light of the discussion held above, the appellant/claimant is entitled to additional compensation of Rs.40,000/- with interest at 6% p.a. from the date of petition till realization.
Accordingly, the appeal is allowed-in-part and the appellant is entitled to an additional compensation of Rs.40,000/- with interest at 6% p.a. from the date of petition till realisation. The judgment and award passed by the Tribunal in MVC No.2807/2009 is modified as indicated above.
Respondent No.2 – Insurance Company is directed to deposit the compensation awarded by the Tribunal and the additional compensation awarded by this Court within six weeks from the date of receipt of a copy of this judgment and the same shall be released to the claimant/appellant as per the award of the Tribunal.
Registry is directed to draw the award accordingly.
Sd/- JUDGE bkm.