IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL NO.11510/2012 (MV) BETWEEN:
S.J. MANJUNATH S/O B.S. JAYADEVAPPA AGED ABOUT 47 YEARS R/O 2ND CROSS, NEHRUNAGAR NISHANI GOMANNA COMPOUND HOLALKERE ROAD CHITRADURGA – 577 501 … APPELLANT (BY SRI: SPOORTHY HEGDE N, ADV) AND:
1. RELIANCE GENERAL INSURANCE CO. LTD BY ITS BRANCH MANAGER BRANCH OFFICE, MAGANURU COMPLEX, NEAR UNION PARK B.D. ROAD CHITRADURGA – 577 501 2. T. CHIDANANDA S/O THIMANNA POLICY HOLDER OF AUTO REG. NO. KA-16/A-4021 R/O BEHIND SR MILL KARIKAL MADEHALLY POST CHITRADURGA TALUK AND DISTRICT – 575 501 ...RESPONDENTS (BY SRI: H.C. BETSUR, ADV FOR R1, NOTICE TO R2 AND R3 IS DISPENSED VIDE COURT ORDER DATED 14.08.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.08.2012 PASSED IN MVC NO.384/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT – V, CHITRADURGA, 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:
J U D G M E N T Though the appeal is listed for admission, with the consent of learned Counsel appearing for both the parties, the appeal is heard, admitted and disposed of finally.
2. The claimant aggrieved by the quantum of compensation awarded by the Tribunal has preferred this appeal seeking for enhancement of compensation.
3. Heard Sri.N.Spoorthy Hegde, learned counsel appearing for the appellant-claimant and Sri.H.C.Betsur, learned counsel appearing for respondent No.1-insurer. Perused the judgment and award passed by the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 27.06.2011 due to rash and negligent driving of an Auto Rickshaw bearing registration No.KA-16/A-4021 by its driver and liability of the insurer of offending vehicle, the only point that arises for consideration in the appeal is:
“Whether the compensation of Rs.35,000/- with interest at 6% per annum awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. Sri.Spoorthy Hegde, learned Counsel appearing for the claimant submits that the compensation awarded under all the heads is meager and therefore, he seeks for enhancement of compensation.
6. Sri.H.C.Betsur, learned Counsel appearing for the insurer of Auto Rickshaw submits that the licence of the driver of offending Auto Rickshaw was expired in the year 2006 and the accident had taken place in the year 2011 and the driver did not get the licence renewed since 2006 upto 2011. However, the compensation of Rs.35,000/- awarded by the Tribunal is just and proper and it need not be enhanced further.
7. The insurer of Auto Rickshaw who contends that driving licence of Auto driver was expired in the year 2006 and driver did not get the license renewed for a period of 4 years has not chosen to challenge the award passed by the Tribunal on the said ground. Hence, the insurer is estopped from raising the said ground in the appeal filed by the claimant for enhancement of compensation. As such the submission of the learned Counsel for the insurer is rejected as merit-less.
8. Therefore, the only question arises for consideration in this appeal is:
“Whether compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
9. As per Ex.P6, the wound certificate the claimant had sustained contusion measuring 8 x 5 cms over the left forearm and left wrist. He was subjected to x-ray examination of forearm and wrist which confirms fracture of lower end of left radius. The injuries was treated conservatively by applying POP. Considering the same, a sum of Rs.30,000/- is awarded for pain and suffering as against Rs.20,000/- awarded by the Tribunal.
10. The claimant has produced medical bills amounting to Rs.1,900/-. Though the claimant has contended before the Tribunal that he was treated as inpatient for one week, no medical records are produced in that regard. Considering the same, Rs.5,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper and there is no scope for enhancement under the said head.
11. The claimant claims that he was doing vegetable vending business, but the same is not substantiated by adducing cogent evidence. In the absence of proof of income, considering his age as 45, year of accident as 2011 and his avocation as daily wager, his income is assessed at Rs.6,000/- p.m. The nature of injuries suggest that he must have been in rest for a period of two months. Therefore, sum of Rs.12,000/- is awarded under the head loss of income during laid up period. In the absence of evidence of doctor regarding disability caused to limb and to whole body, it is difficult to award compensation for the loss of future income and towards loss of amenities. However, the Tribunal has awarded Rs.10,000/- towards loss of amenities and it does not call for enhancement.
12. Thus, the claimant is entitled for the following compensation:-
13. Accordingly, the appeal is allowed-in-part.
The judgment and award dated 27.08.2012 in MVC No.384/2011 passed by the I Additional Senior Civil Judge and MACT, Chitradurga, stands modified. The claimant is entitled for an additional compensation of Rs.22,000/- with interest at 6% p.a. from the date of claim petition till the date of realization.
12. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. After the deposit of amount by the Insurance Company, the amount shall be released in favour of the claimant.
No order as to costs.
SD/- JUDGE *bgn/-