IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.10999 OF 2012 (MV) BETWEEN:
Smt. Saki Bai, W/o. Chandya Naika, Age:55 years, R/o. Maruthi Farm House, Amruthnagara, Bellary Road, Bengaluru. …Appellant (By Smt. Sunitha B.H. for Sri. Suresh M. Latur, Advocate) AND:
1. The Proprietor, M/s. Neva International, No.418, 80 feet Road, Circular Road, Kormangala, 4th Block, Bengaluru-560 034.
2. The Manager, HDFC Ergo Gen. Ins. Co. Ltd., 3rd Floor, Embassy Classic, Vittal Mallya Road, Bengaluru. …Respondents (By Sri. H.S.Lingaraju, Advocate for R-2;
Vide Order dated:11.08.2015 notice to R-1 dispensed with) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:08.03.2012 passed in MVC No.8665/2010 on the file of the II Additional Judge, Court of Small Causes, MACT, 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 II Addl. Judge, Court of Small Causes, M.A.C.T., Bengaluru, (hereinafter referred to as ‘The Tribunal’, for short), by judgment and award dated 8.3.2012, passed in MVC No.8665/2010.
2. The summary of the case of the claimant in the Tribunal is that on 3.9.2010, at about 10.00 a.m., while she was crossing B.B.Road, opposite to Swathi Hotel, Byatarayanapura, Yelahanka, Bengaluru, after observing the traffic rules from either side of the road, a car bearing registration No.KA-91-MC-547, being driven by its driver in a rash and negligent manner and coming from Devanahalli towards Bengaluru, dashed to her, due to which accident, she fell down and sustained several injuries, including fracture of her hip joint. She was immediately shifted to Northside Hospital, Sahakaranagar, Bengaluru, where she was inpatient for few days and was discharged subsequently. She has also stated that as per the doctor’s advise, she has taken bed-rest for not less than a period of two months. Further stating that at the time of accident, she was working as a coolie and earning a sum of `4,500/- per month, but, due to the accident, she could not able to do her earlier work or any other manual work, including household work, she had claimed compensation of a sum of `7 lakhs from the respondents who are the owner and insurer of the alleged offending vehicle respectively.
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:
Amount (`) Medical expenses 5,000-00 Global compensation under non- pecuniary heads 20,000-00 Total 25,000-00 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. 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.
6. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. Learned counsel for the appellant/claimant submits that the very wound certificate, joined by the evidence of the claimant as PW-1, makes it abundantly clear that in the accident in question, the claimant has sustained major and grievous injuries in the form of crack fracture of superior and inferior ramus of right pubic bone, due to which fracture, she is unable to move independently and unable to pursue her livelihood as a coolie. Merely because the doctor has not been examined, nor a disability certificate has been produced, the Tribunal has erred in awarding a reasonable compensation.
9. Learned counsel for the respondent-Insurance Company in his arguments submitted that the Tribunal has appreciated the evidence placed before it in its proper perspective and in the absence of any medical evidence or believable evidence to the effect that is being canvassed by the claimant, the Tribunal cannot dream on its own the disability of the claimant.
10. A reading of the evidence led in the matter, as well the documents produced by the claimant, more importantly, the wound certificate at Ex.P-6, discharge summary at Ex.P-7 clearly go to show that in the accident, the claimant has sustained crack fracture of superior and inferior ramus of right pubic bone. Ex.P-10 is a Radiological report, which goes to show that she had developed early osteoarthritic changes with respect to both hip joint. This would to some extent makes the evidence of PW-1 to believe that due to the accident, she is unable to move and walk freely without the aid of a walking stick. In such a situation, merely because she has not produced other medical evidence to show her alleged inconvenience in walking and difficulty in leading normal livelihood, her evidence cannot be disbelieved.
11. As such, even in the absence of any medical certificate assessing her alleged percentage of disability and considering the nature of injuries sustained by her, I am of the view that the global compensation awarded by the Tribunal i.e., at a sum of `20,000/- requires to be enhanced. In that regard, it also cannot be lost sight of the fact that the Tribunal has also not awarded independent compensation under the head of `loss of amenities’, `loss of income during laid up period’ or `future loss of income’ etc., Thus, considering all these aspects, I am of the view that retaining the compensation awarded towards medical expenses at `5,000/-, a sum of `20,000/- awarded as global compensation under non-pecuniary heads deserves to be enhanced by a sum of `55,000/-, which is in addition to the quantum of compensation awarded by the Tribunal. Thus, in total the appellant/claimant is entitled for a sum of `5,000/- + `75,000/- = `80,000/-.
12. 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, she is entitled for enhancement of compensation in a sum of `55,000/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 8.3.2012, passed by the learned II Addl.Judge, Court of Small Causes, M.A.C.T., Bengaluru, in MVC.No.8665/2010, is modified to the extent that the compensation awarded at `25,000/- is enhanced by a sum of `55,000/-, thus fixing the total compensation at `80,000/- (Rupees Eighty thousand 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 bk/