IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A.NO.9783/2013 (MV) C/W M.F.A.NOS.9785/2013 & 9784/2013 IN MFA No.9783/2013 (MV) Between:
Ms. Roja D/o Nagaraju Aged about 19 years R/at Abilash Tailors Behind Banajigara Hostel Madhugiri – 572 132 …Appellant (By Sri Venkata Subba Rao G S, Advocate) And:
1. Sri Anand Krishna S/o Nagaprasad Gupta Major, R/at P.L.D.Bank Road K.R.Extension, Madhugiri Town-572131 (Owner of Tempo Traveler bearing Registration No.KA-06 B-7050) 2. Reliance Insurance Company 2nd Floor, S.M.Tower 11th Main, 3rd Block, Jayanagar Bengaluru – 560 011 (Policy No.1405402340000426 Valid from 06.10.2010 to 05.10.2011) ... Respondents (By Sri B.R.Sundara Raja Gupta, Advocate for R-1 & By Sri H.S.Lingaraj, Advocate for R-2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 04.07.2013 passed in MVC No.27/2011 on the file of the Principal Senior Civil Judge & MACT-XII, Madhugiri, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA No.9785/2013 (MV) Between:
Sri Shivakumar S/o Mallaiah Aged about 44 years R/at Vinayakanagar Lingenahalli Madhugiri Town Tumakuru District– 572 101 …Appellant (By Sri Venkata Subba Rao G S, Advocate) And:
1. Sri Anand Krishna S/o Nagaprasad Gupta Major, R/at P.L.D.Bank Road K.R.Extension, Madhugiri Town-572131 (Owner of Tempo Traveler bearing Registration No.KA-06 B-7050) 2. Reliance Insurance Company 2nd Floor, S.M.Tower 11th Main, 3rd Block, Jayanagar Bengaluru – 560 011 (Policy No.1405402340000426 Valid from 06.10.2010 to 05.10.2011) (By Sri H.S.Lingaraj, Advocate for R-2; Notice not ordered in r/o R-1) ... Respondents This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 04.07.2013 passed in MVC No.34/2011 on the file of the Principal Senior Civil Judge & MACT-XII, Madhugiri, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN MFA No.9784/2013 (MV) Between:
Smt. Gangamma W/o Chowdappa Aged about 60 years R/at Vinayakanagar Lingenahalli, Madhugiri Town Tumakuru District-572101 …Appellant (By Sri Venkata Subba Rao G S, Advocate) And:
1. Sri Anand Krishna S/o Nagaprasad Gupta Major, R/at P.L.D.Bank Road K.R.Extension, Madhugiri Town-572131 (Owner of Tempo Traveler bearing Registration No.KA-06 B-7050) 2. Reliance Insurance Company 2nd Floor, S.M.Tower 11th Main, 3rd Block, Jayanagar Bengaluru – 560 011 ... Respondents (By Sri H.S.Lingaraj, Advocate for R-2; Notice not ordered in r/o R-1) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 04.07.2013 passed in MVC No.33/2011 on the file of the Principal Senior Civil Judge & MACT-XII, Madhugiri, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFA’s coming on for Admission, this day, the Court delivered the following:
JUDGMENT These appeals have been preferred by the appellants/claimants assailing the judgment and award dated 04.07.2013 passed by the Prl. Senior Civil Judge and MACT-XII at Madhugiri (hereinafter referred to as ‘the Tribunal’ for short) in MVC Nos.27/2011, 34/2011 and 33/2011 respectively.
2. Heard. Though these appeals were posted for admission, with the consent of the learned counsel for the parties, it is taken up for final disposal.
3. Brief facts of the case are that, on 16.11.2010, the petitioners were traveling in a Tempo Traveler bearing registration No.KA-06 B-7050 to visit various places like Shringeri, Horanadu and Dharmasthala and after visiting the said places, they were returning in the said vehicle. On 19.11.2010, at about 12.15pm, when they came near Mala-Ghat section in between Mala-Ghat and Karkala, the driver of the said vehicle driving the same rashly and negligently with great speed, dashed to a stone on the right side of the road and caused the accident. Due to the impact, the petitioners who were inmates of the said Tempo Traveler sustained injuries and thereafter they have been shifted to Government Hospital, Karkala and after taking first aid treatment, they were shifted to Government Hospital, Koratagere for further treatment. It is further stated that they spent huge amount for treatment and also sustained loss of income. Hence, they filed claim petitions for claiming compensation.
4. In pursuance of the notices, the first respondent appeared and filed his objections by denying the contents of petition and further contended that the offending vehicle has been insured with the second respondent and the policy was in force as on the date of the accident and if at all any compensation has to be paid, it is the second respondent who has to pay the compensation.
5. Second respondent also filed its written statement denying the contents of the petitions, further contended that the driver of the said vehicle was not having valid and effective driving license to drive such type of vehicle and he was also not having valid permit to ply the vehicle in the said area and has not complied the provisions of Section 134(c) of the Motor Vehicles Act. It is further contended that the owner of the vehicle has not informed about the accident and has not communicated the said Act and asserts that there is breach of conditions of the policy and the insurance company is not liable to pay compensation. On these grounds prays for dismissal of the said petitions.
6. On the basis of the pleadings before the Court, the Tribunal has framed the issues and by allowing the petitions has awarded a compensation of Rs.62,840/- in MVC No.27/2011, a global compensation of Rs.20,410/- in MVC No.33/2011 and Rs.7,870/- in MVC No.34/2011.
7. Assailing the said judgment and award passed by the Tribunal, the appellants/claimants are before this Court.
8. The main grounds urged by the learned counsel for the appellants are that, the Tribunal has not taken into consideration the fracture injuries sustained by the petitioners’ and that, there being no assessment of disability and other contingencies, has awarded the compensation on the lower side. It is further contended that there is material evidence to show that the petitioner in MVC No.27/2011 (appellant in MFA No.9783/2013 herein) has sustained fracture and she has been admitted in the hospital and it has affected her education career as a Engineering student and also marriage prospects. These aspects have not been considered and appreciated by the Tribunal.
9. It is further contended that the petitioner in MVC No.33/2011 (appellant in MFA No.9784/2013 herein) has also sustained fracture and the same has been corroborated by production of Ex.P.4 and she has been admitted in the hospital for treatment from 01.12.2010 to 07.12.2010. This aspect has also not been properly considered and appreciated and the compensation awarded is not correct.
10. He further contended that even the compensation awarded in MVC No.34/2011 (appellant in MFA No.9785/2013 herein) is also on the lower side. On these grounds, he prays for allowing the appeals by enhancing the compensation.
11. Per contra, learned counsel appearing for the second respondent-insurance company vehemently argued and contended that, the compensation awarded by the tribunal is just and proper and he justified the judgment and award and prays for dismissal of the appeals.
12. The accident in question so also the offending vehicle having been insured with the insurance company is not in dispute. Even it is brought to my notice that in connected MFA No.9786/2013, the matter was referred before the Lok Adalat and the said matter has been settled amicably between the claimants and the insurance company by settling the matter. In view of the said fact, there is no dispute with regard to the other contentions.
13. As could be seen from the judgment and award of the Tribunal, the claimant in MVC No.27/2011 (Appellant in MFA No.9783/2013 herein) has sustained following injuries:
1. Comminuted fracture of Supracondylar humerus with bony ankylosis of elbow joint 2. Stiffness of left shoulder, elbow and wrist joints 3. ROM of left elbow absent 4. Coordinated movements of left upper limb 5. Fracture of wrist joints 14. In order to substantiate the said fact, she also produced Ex.P.4 the wound Certificate issued by the Government Hospital, Karkala and Ex.P.8 Discharge summary issued by the Government Hospital, Koratagere, which discloses that she was admitted in the hospital on 22.11.2010 and discharged on 07.12.2010 and Ex.P.7 Discharge summary issued by the Government Hospital, Koratagere, discloses that again she has been admitted in the hospital on 06.01.2011 and discharged on 07.01.2011. Further she has also produced Ex.P.9 to P.14 prescriptions and medical bills at Ex.P.16 to P.36. Though the petitioner has sustained the above said injuries and has got examined her treated doctor as PW-2 who has spoken about the disability, but the Tribunal has not accepted the evidence of PW-2 with regard to disability and considering the evidence of the petitioner/appellant, awarded a global compensation of Rs.62,840/-. Though under the normal circumstances the same is justified, but however, while granting compensation, the injury, avocation and loss of income during the laid up period and other aspects ought to have been considered and the compensation could have been awarded on other heads also. In this behalf, the Tribunal was not justified in awarding global compensation of Rs.62,840/- when the appellant/petitioner has sustained comminuted fracture of wrist joint and has taken treatment for the above said period, then in such circumstances, the Tribunal ought to have awarded compensation for pain and suffering. In this behalf, the petitioner is entitled to an amount of Rs.25,000/- under the head pain and suffering.
15. The Tribunal further considered the documents produced at Ex.P.16 to 44 which are medical bills, Laboratory reports and X-rays, has awarded an amount of Rs.54,832/- towards the medical expenses. But as could be seen from the original bills at Ex.P.26, 27, 30 and 32, they are dated 08.11.2010, 01.11.2010, 14.11.2010 and 16.11.2010 respectively, amounting to Rs.8,549/-. The said bills are prior to the accident. In that light, an amount of Rs.8,549/- has to be deducted out of Rs.54,832/-. In that light, claimant is entitled to Rs.46,283/- under the head medical expenses.
16. In so far as the avocation of the petitioner that she was pursuing engineering course and in this behalf, she might have suffered some discomfort during treatment period, in that light, she is entitled for a sum of Rs.20,000/- towards discomfort.
17. The records also indicate that she has been got admitted in the hospital on 22.11.2010 and discharged on 07.12.2010 and again she was admitted to the hospital on 06.01.2011 and discharged on 07.01.2011 and during the said period some attendants might have attended over her. Though there is no evidence to support the case that she was earning any amount, but she might have spent some amount towards attendants who have looked after her. In that light an amount of Rs.10,000/- has been awarded towards attendant charges and a sum of Rs.10,000/- has been awarded towards nutrition and other incidental charges, which might have been incurred by the petitioner for the above said injuries.
18. Though learned counsel for the appellant vehemently argued and contended that the above said injuries has affected her educational career as well as marriage prospects, in order to substantiate the said fact, she also relied upon the evidence of PW-2 Dr. Suresh P.A. As could be seen from the evidence of PW-2 doctor, though he has spoken in his evidence that there is 90% disability relating to upper limb and also disability to whole body is taken at 30%, but he has not issued any certificate of disability, which is must under law. In this behalf, in the absence of any disability certificate, this Court also cannot take into consideration the fact that the petitioner has sustained 30% disability to the whole body. Any how, this Court has already awarded an amount of Rs.20,000/- towards discomfort which has been suffered by the petitioner and itself will cover the said aspect in this behalf. Even though there is no material produced before this Court or before the Tribunal to show that her marriage prospects have also been affected, keeping in view the above said facts and circumstances and contentions raised by the learned counsel for the appellant, it does not deserve to be accepted. Thereby, the re-assessed compensation in MFA No.9783/2013 is as under:
Particulars Amount 1. Towards pain and sufferings Rs.25,000-00 2. Towards discomfort Rs.20,000-00 3. Towards Attendant charges Rs.10,000-00 4. Towards nutrition and other incidental charges Rs.10,000-00 Total Rs.65,000-00 In view of the discussion held above, out of Rs.65,000/- an amount of Rs.8,549/- if it is deducted, appellant-claimant is entitled to Rs.56,451/- with 6% interest.
19. As could be seen from the judgment and award of the Tribunal, the claimant in MVC No.33/2011 (Appellant in MFA No.9784/2013 herein) has sustained following injuries:
1. Tenderness and swelling of right forearm with 5 x 2cm wound near the wrist 2. Fracture of both bones of left forearm 3. Lacerated wound over forehead.
20. In order to substantiate the said fact, she has also produced Ex.P.4 the wound Certificate issued by the Government Hospital, Karkala and Ex.P.7 Discharge summary issued by the Government Hospital, Koratagere, which discloses that she was admitted in the hospital on 01.12.2010 and discharged on 07.12.2010. Though the petitioner has sustained the above said injuries and has not examined her treated doctor, the Tribunal considering the evidence of the petitioner/appellant, awarded a global compensation of Rs.20,410/-. Though in the normal circumstances, the same is justified, but however, while granting compensation, the injury, avocation and loss of income during the laid up period and other aspects ought to have been considered and the compensation could have been awarded on other heads also. In this behalf, the Tribunal was not justified in awarding global compensation of Rs.20,410/-, when the appellant / petitioner has sustained fracture of both bones of left forearm and has taken treatment for the above said period. Under such circumstances, the Tribunal ought to have awarded compensation for pain and suffering. In this behalf, the petitioner is entitled to an amount of Rs.25,000/- under the head pain and suffering.
21. The Tribunal further considered the medical bills produced by the petitioner/appellant at Ex.P.10 to P.13 and has awarded an amount of Rs.6,406/- towards the medical expenses and the same is just and proper. In this regard, I feel that there is no need to enhance any amount under the said head.
22. Since the petitioner/appellant has not examined her treated doctor to prove any disability suffered by her to award compensation under future loss of income, however, to award compensation under the head loss of income during laid up period, learned counsel for the petitioner/appellant submits that the petitioner was an agriculturist and for the injuries sustained in the accident, she was under treatment for one month and was unable to attend to agricultural work for about 6 months. Considering the nature of injuries suffered by the petitioner and her avocation, she is entitled for a sum of Rs.10,000/- towards loss of income during laid up period. Further, due to injuries, she might have suffered discomfort to some extent. Hence, she is entitled for a sum of Rs.10,000/- towards discomfort.
23. The records also indicate that she has been admitted in the hospital on 01.12.2010 and discharged on 07.12.2010 and during the said period some attendants might have attended over her. Though there is no evidence to support the case, in the light of Ex.P.7 discharge summary, an amount of Rs.10,000/- has been awarded towards the attendant charges and conveyance and a sum of Rs.10,000/- has been awarded towards nutrition and other incidental charges, which might have been incurred by the petitioner for the above said injuries. Thereby, the appellant in MFA No.9784/2013 is entitled for enhanced compensation as under:
Particulars Amount 1. Towards pain and sufferings Rs.25,000-00 2. Towards loss of income during laid up period Rs.10,000-00 3. Towards discomfort Rs.10,000-00 4. Towards Attendant charges & conveyance 5. Towards nutrition and other incidental charges Rs.10,000-00 Rs.10,000-00 Total Rs.65,000-00 24. As could be seen from the judgment and award of the Tribunal, the claimant in MVC No.34/2011 (Appellant in MFA No.9785/2013 herein) has sustained following injuries:
1. Fracture of right side ribs 2. Swelling and tenderness over the right clavicle 25. In order to substantiate the said fact, he also produced Ex.P.4 the wound Certificate and Ex.P.6 OPD Card issued by the Government Hospital, Karkala. Though the petitioner has sustained the above said injuries and has not examined his treated doctor, the Tribunal considering the evidence of the petitioner/appellant, awarded a global compensation of Rs.7,870/-. Though in the normal circumstances the same was justified, but however, while granting compensation the injuries and other aspects ought to have been considered and the compensation could have been awarded on other heads also. In this behalf, the Tribunal was not justified in awarding global compensation of Rs.7,870/- when the appellant / petitioner has sustained fracture of ribs & right clavicle and has taken treatment. Under such circumstances, the Tribunal ought to have awarded compensation for pain and suffering. In this behalf, the petitioner is entitled to an amount of Rs.25,000/-.
26. The Tribunal further considered the medical bills produced by the petitioner/appellant at Ex.P.7 to P.14 and has awarded an amount of Rs.2,867/- towards the medical expenses and the same is just and proper. In this regard, I feel that there is no need to enhance any amount under the said head.
27. Since the petitioner/appellant neither produced any documents to show that he got admitted in the hospital and took treatment for fracture of ribs as inpatient nor examined his treated doctor to prove any disability suffered by him, to award compensation under loss of income, however, considering the nature of injuries suffered by the petitioner and his avocation, he is entitled for a sum of Rs.10,000/- towards discomfort and a sum of Rs.10,000/- has been awarded towards nutrition and other incidental charges, which might have been incurred by the petitioner for the above said injuries. Thereby, the appellant in MFA No.9785/2013 is entitled for enhanced compensation as under:
Particulars Amount 1. Towards pain and sufferings Rs.25,000-00 2. Towards discomfort Rs.10,000-00 3. Towards nutrition and other incidental charges Rs.10,000-00 Total Rs.45,000-00 28. Accordingly, I proceed to pass the following:
ORDER i) These appeals are allowed in part.
ii) The appellant in MFA No.9783/2013 (Petitioner in MVC No.27/2011) is entitled for enhanced compensation of Rs.56,451/- (Fifty six Thousand Four Hundred and Fifty-one only) in addition to the compensation awarded by the Tribunal with 6% interest per annum from the date of petition, till realization.
iii) The appellant in MFA No.9784/2013 (Petitioner in MVC No.33/2011) is entitled for enhanced compensation of Rs.65,000/- (Sixty Five Thousand only) in addition to the compensation awarded by the Tribunal with 6% interest per annum from the date of petition, till realization.
iv) The appellant in MFA No.9785/2013 (Petitioner in MVC No.34/2011) is entitled for enhanced compensation of Rs.45,000/- (Forty Five Thousand only) in addition to the compensation awarded by the Tribunal with 6% interest per annum from the date of petition, till realization.
v) The impugned judgment and award is modified as indicated above.
vi) The respondent No.2 / Insurance company is directed to deposit the said amounts within a period of six weeks from the date of receipt of copy of this Judgment.
vii) Registry is directed to draw award accordingly.
viii) LCR’s be sent back to the concerned Tribunal, forthwith.
Sd/- JUDGE KMV*