IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR. JUSTICE B. MANOHAR BETWEEN M. F. A. NO. 5875 OF 2010 (MV) SAMUEL O.K S/O LATE N.S. KOSHI AGED ABOUT 52 YEARS, R/AT OTTETHANGIL HOUSE NERLA ICHILAMPADI VILLAGE PUTTUR TALUK DAKSHINA KANNADA DISTRICT. ...APPELLANT (BY SRI. VISHWANATHA POOJARY.K, ADVOCATE) AND 1. VENUGOPALA S/O VEERASWAMI MAJOR, R/AT NO.79 MAGADI ROAD, 1ST CROSS ‘A’ STREET, BANGALORE.
2. THE DIRECTOR KARNATAKA GOVERNMENT INSURANCE DEPARTMENT VISHWESHWARAYYA CENTRE 17TH FLOOR, AMBEDKAR VEEDI BANGALORE.
3. THE CHIEF SECRETARY GOVERNMENT OF KARNATAKA VIDHANA SOUDHA BANGALORE-560001. ... RESPONDENTS (BY SRI. HIGH COURT GOVERNMENT ADVOCATE FOR R.2 & 3, R.1 NOTICE DISPENSED WITH) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.12.2009 PASSED IN MVC NO.92/2003 ON THE FILE OF THE M.A.C.T, PUTTUR, D.K., 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 Appellant is the claimant. Being not satisfied with the quantum of compensation awarded in the judgment and award dated 11.12.2009 made in MVC No.92/2003 by the MACT, Puttur, D.K., (hereinafter referred to as ‘Tribunal’ for short), he has filed this appeal seeking enhancement of compensation.
2. The appellant filed a claim petition, contending that on 16.02.2002, while the claimant was proceeding in a Bajaj MSO Moped bearing Reg.No.KA-19-E-5301, from Uppinangady to Nelyadi, near Nelyadi Town, a car bearing Reg.No.01/GA-1947, driven by its driver in a rash and negligent manner, dashed against the Moped of the claimant. Due to that, the claimant fell down and sustained grievous injuries all over the body. Immediately after the accident, the claimant was shifted to Omega Hospital, Mangaluru and took treatment therein. He claims that he has spent more than Rs.1,00,000/- towards treatment. In the accident, he has sustained fracture of tibia and fibula of right leg, fracture of neck of femur of right leg and the fracture of clavicle in addition to other lacerated wounds all over the body. He took treatment as inpatient for a period of 39 days in the different intermediate period. Prior to the accident, he was working as a school teacher, getting salary of Rs.6,000/- per month. In view of the injury sustained and surgery he has undergone, he cannot do the work which was doing prior to the accident. Hence, sought for compensation of Rs.5,00,000/-.
3. In response to the notice issued by the Tribunal, the Government advocate entered appearance for respondent Nos.2 and 3 and filed the written statement. The respondent No.3 adopted the written statement filed by the second respondent.
4. After trial, the Tribunal held that due to actionable negligence on the part of driver of the car, the accident occurred. The claimant has sustained injury. Hence, he is entitled for compensation. With regard to the quantum of compensation is concerned, in the accident, the claimant has sustained 3 fractures and undergone two operations and other lacerated wounds. He was inpatient for a period of 39 days. Thereafter, he has taken bed rest for a period of 8 months. Since the claimant has not examined the doctor to assess the disability, the Tribunal awarded sum of Rs.17,000/- towards pain and suffering, a sum of Rs.26,190/- towards medical expenses, a sum of Rs.3,900/- towards attendant charges, a sum of Rs.3,900/- towards loss of income during laid up period and sum of Rs.3,900/- towards diet and nutritious food. In all, sum of Rs.54,890/- with interest at the rate of 6% per annum. The liability was fastened on the second respondent to pay the compensation to the claimant. Being not satisfied with the quantum of compensation, the claimant has filed this appeal.
5. Sri.Vishwanatha Poojary.K, advocate appearing for the appellant contended that judgment and award passed by the Tribunal is contrary to law. In the accident, the claimant has sustained 3 fractures and 3 lacerated wounds. The doctor who has treated the claimant stated that out of six injuries sustained by the claimant, three injuries are grievous injuries. The claimant has undergone two operations. Initially, the claimant was discharged from the hospital on 9.3.2002. Thereafter, once again he was got admitted to hospital on 22.4.2002 and discharged on 24.04.2002. The wound certificate issued by the Omega Hospital clearly discloses that the claimant has sustained 3 fractures and discharge memo as per EXs.P.4 and 5 disclose that the claimant has sustained injury and undergone surgery. The Tribunal has awarded meager compensation of Rs.54,890/- is lower side and hence sought for enhancement of compensation.
6. On the other hand, Sri.Munigangappa, Government advocate appearing for the respondent Nos.2 and 3 argued in support of the judgment and award passed by the Tribunal and also contended that though the claimant has sustained injury, the doctor who has treated the claimant, has not examined to assess the disability of the injury he has sustained. In the absence of the same, the Tribunal after properly appreciating the oral and documentary evidence has awarded just and fair compensation. Hence, sought for dismissal of the appeal.
7. I have carefully gone through the arguments addressed by the advocate appearing for the parties, perused the judgment and award and oral and documentary evidence.
8. The occurrence of the accident, the injury sustained by the claimant due to negligence on the part of driver of the offending car is not in dispute. The dispute in this appeal is only with regard to the quantum of compensation is concerned. On perusal of EX.P2-wound certificate clearly discloses that the claimant has sustained injury in the road traffic accident on 16.02.2002. He has sustained the following injuries.
1. A lacerated wound 8 cm X 1.5 cm, bone deep over right side of the back of the head, 2. Abrasion 6 cm X 5 cm on the right side of the shoulder, 3. Loss of upper central and lateral incisor of left side, 4. Comminuted fracture of lower end of tibia and fibula with dislocation of the ankle joint, 5. Fracture of the neck of femur and 6. The fracture of left clavicle at the junction of outer and middle 1/3.
9. The claimant has undergone surgery for fracture of tibia and fibula and femur, he has taken treatment as inpatient for a period of 39 days in Omega hospital. Thereafter, he has taken bed rest for a period of 8 months. Though the claimant has not examined the doctor who has treated the claimant, the wound certificate issued by the Omega hospital clearly discloses that he has sustained 3 fractures and 3 other grievous injuries. The claimant has spent a sum of Rs.26,190/- towards medical expenses. The compensation awarded in all other heads is lower side. The claimant is a school teacher by profession. He was aged 45 years. Though the claimant has not examined the doctor who has treated to assess the disability, the Tribunal taking into consideration the injury and surgery undergone and also discharge memo issued by the Omega hospital, the Tribunal ought to have awarded just and fair compensation. The Motor Vehicles Act has been amended to wipe the tears of the victim of road traffic accident. In the instant case, a sum of Rs.54,890/- awarded by the Tribunal is meager. Hence, I am of the opinion that it is appropriate to award global compensation of another sum of Rs.50,000/- in addition to Rs.54,890/- awarded by the Tribunal with interest at 6% per annum. Accordingly, I proceed to pass the following:
ORDER Appeal is allowed in part. The judgment and award made in MVC.No.92/2003 by the MACT, Puttur, D.K., dated 11.12.2009 is modified. The claimant is entitled for global compensation of Rs.50,000/- in addition to Rs.54,890/- with interest at the rate of 6% per annum awarded by the Tribunal.
Sd/-
Judge Mkm*