IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA NO.9302/2012 (MV) BETWEEN SMT RENUKAMMA W/O. LATE MOHAN KUMAR AGE: 42 YEARS OCC: HELPER IN GARMENTS R/O. NO.170, 9TH CROSS II BLOCK, NANDINI LAYOUT BENGALURU-96 ... APPELLANT (By Smt B.H.SUNITHA FOR Sri SURESH M.LATUR, ADVOCATE) AND 1. M/s. S.L.R. INFO TECH’S NO.34, RENUKA COMPLEX II MAIN ROAD, HAL III STAGE BENGALURU 2. THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD., DO NO.11, NO.663, I FLOOR I MAIN, DEFENCE COLONY 100 Ft. ROAD, INDIRANAGAR I STAGE BENGALURU-38 ... RESPONDENTS (By Sri C. SHANKAR REDDY, ADV., FOR R-2 R1-NOTICE DISPENSED WITH VIDE ORDER DT.09.06.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.4.2012 PASSED IN MVC NO.4421/2010 ON THE FILE OF MACT, XX ADDL. JUDGE & XVIII ACMM, BENGALURU, 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 Motor Accident Claims Tribunal, XX Addl.Judge & XVIII ACMM, Bengaluru, (ACMM-18), (hereinafter for brevity referred to as ‘The Tribunal’, for short), by judgment and award dated 21.04.2012, passed in MVC No.4421/2010.
2. The summary of the case of the claimant in the Tribunal is that on 20.04.2010, while she was crossing Laggere Ring Road, near Chowdeshwary Nagar, Bengaluru, from East to West direction, at about 7-30 p.m, the rider of a motorcycle bearing registration No.KA-04-EW-3545 rode the motorcycle in a rash and negligent manner and dashed to her, due to which, she sustained multiple injuries. Immediately, she was shifted to Mathru Hospital, Laggere and thereafter to KIMS Hospital, Bengaluru, where she was admitted as inpatient. She has spent a sum of `1,50,000/- towards medical expenses. She has claimed a compensation of `10,00,000/- from respondent Nos.1 and 2 holding them as jointly and severally liable to pay her compensation in their capacity as owner and insurer of the alleged offending motorcycle.
3. 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:
1. Loss of future income ` 75,600-00 2. Loss of income during laid off period for a period of 13 days ` 1,950-00 3. Pain and suffering ` 25,000-00 4. Transportation charges ` 5,000-00 5. Special food and nutrition etc ` 2,600-00 6. Loss of amenities of life, frustration, disappointment inconvenience etc.
7. Medical expenses ` 25,000-00 ` 25,000-00
The Tribunal also observed that as a pedestrian, the claimant was negligent in crossing the road, as such, after deducting a sum of `54,435/- as 30% of her contributory negligence, it awarded the remaining amount of `1,27,015/- as compensation to her together with interest thereupon.
4. The appellant/claimant in her 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 her, has prayed for allowing the appeal.
5. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
6. Heard the arguments from both sides and perused the materials placed before this court.
7. Learned counsel for the claimant/appellant in her arguments submitted that the compensation awarded by the Tribunal is very much meager. It has lost sight of the claimant taking bed-rest due to the injuries suffered by her in the accident, as such, the compensation towards ‘loss of income during laid-up period’ is required to be enhanced. She also stated that the compensation towards ‘pain and sufferings’ is also on the lower side. Learned counsel vehemently submitted that the rough sketch of the scene of occurrence of the accident at Ex.P-5 go to show that the claimant had almost crossed the main road and accident has occurred on the side of the main road, as such, contributory negligence fixed at 30% is on the higher side.
8. Learned counsel for respondent No.2- Insurance Company in his arguments submitted that the Tribunal after considering the evidence and the materials placed before it, has awarded just and reasonable compensation, which does not warrant any interference by this Court. He also submitted that the percentage of contributory negligence is also well reasoned by the Tribunal.
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 her 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.
10. A perusal of the materials placed before this Court would go to show that due to the injuries sustained by her in the accident, the claimant has undergone surgery with ORIF with implantation of cancellous screw and ORTF with plate and screw with right Zygoma orbital flan was done on 27.04.2010. Further, she also has sustained bicondylar fracture of right tibia with leforte I and III fracture right side.
Ex.P-7, which is the copy of the Wound Certificate, Ex.P-8, which is the Discharge Summary and Ex.P-19, which is the case sheet gives a detailed statement of the injuries suffered by her. The Tribunal has awarded a sum of `25,000/- towards ‘pain and sufferings’, which deserves an enhancement in a sum of `5,000/-, as such, she is entitled for a total amount of `30,000/- towards ‘pain and sufferings’.
11. The hospital records, more particularly, the case sheet at Ex.P-19 would go to show that the injured was treated as inpatient in the hospital for thirteen days. Considering the said duration and taking her income at `4,500/- per month, which was claimed by her, the Tribunal awarded a sum of `1,950/- towards ‘loss of income during the laid-up period’. However, it ignored the fact that apart from being an inpatient in the hospital, even after discharge from the hospital, she has taken bed-rest as per the Doctors’ advise since she has sustained a major fracture to her lower limb. Thus, taking one month bed-rest period after discharge from the hospital, she is entitled for the compensation towards ‘loss of income’ for the said period also. Thus, `4,500/- is in addition to `1,950/- already awarded by the Tribunal for which she is entitled to. Thus, towards ‘loss of income during the laid-up period’, she is entitled for a total compensation of a sum of `6,450/-.
The claimant/appellant also got examined three Doctors as PWs-2, 3 and 4. The Tribunal had appreciated the evidence given by the medical Doctor, more particularly, PW-3, who had deposed that the claimant has sustained 60% disability to her right limb, which he assessed at 20% when applied to the whole body. Considering the over all medical evidence and documents, the Tribunal has considered the said percentage of disability to 10% to the whole body. However, the fact cannot be ignored that she had sustained multiple fractures and the Doctor has assessed 60% disability to her right limb and 20% to the whole body. In such circumstances of the case, I am of the view that the percentage of disability when applied to the whole body ought to have been taken at 14% by the Tribunal. Since it has taken it only at 10%, the compensation awarded towards ‘loss of future income’ also requires re-consideration. Thus, taking the income of the claimant at `4,500/- as claimed by her and the multiplier ‘14’, which is applicable to her age of 45 years as on the date of the accident, the quantum of compensation towards ‘loss of future income due to disability’ would be `4,500/- x 12 x 14 months x 14% = `1,05,840/-.
The compensation awarded by the Tribunal towards ‘transportation charges’, which is at `5,000/- does not warrant any variation in the circumstances of the case. However, the compensation awarded towards Special Food, Nourishment, which is at `2,600/- requires enhancement. Since even during the bed-rest period also, she is said to have continued with the special food and diet, as such, the quantum of compensation under the said head is re-assessed and fixed at `6,000/-. The compensation awarded towards ‘loss of amenities of life and medical expenses’ at `25,000/- + `25,000/- being reasonable, does not warrant any alteration. So also, the compensation of a sum of `1,300/- towards ‘attendant charges’ and ‘future medical expenses’ of `20,000/- also does not warrant any interference. Thus, in total, the claimant/appellant is entitled for a total compensation of a sum of `2,24,590/-.
12. Though, there is contributory negligence on the part of the claimant since she has crossed the road without noticing the approaching motorcycle on the main road, however, considering the fact, she has almost crossed the main road was very near to the footpath on either side of the road, the percentage of contributory negligence taken at 30% by the Tribunal appears to be on higher side. Thus, the contributory negligence on the part of the claimant/appellant is required to be confined to 10%. Therefore, out of the total entitlement of `2,24,590/- as compensation after deducting 10% of it which is `22,459/-, the claimant is entitled for a sum of `2,02,131/- which is rounded off to `2,02,140/-. After deducting a sum of `1,27,015/- awarded by the Tribunal, the difference amount comes to `75,125/-, which the claimant is entitled as an enhancement.
13. 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, he is entitled for enhancement of compensation in a sum of `75,125/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 21.04.2012, passed by the learned Motor Accident Claims Tribunal, XX Addl.Judge & XVIII ACMM, Bengaluru (ACMM-18), in MVC.No.4421/2010, is modified to the extent that the compensation awarded at `1,27,015/- is enhanced by a sum of `75,125/-, thus, fixing the total compensation at `2,02,140/- (Rupees Two lakhs two thousand one hundred and forty only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd 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 cp*