IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2017 BEFORE THE HON' BLE MR. JUSTICE L. NARAYANA SWAMY M.F.A.No.6826/2015 (MV) BETWEEN:
Sri. A.T. Manjunath, S/o. Late Sri Thimmappa, Aged about 46 years, R/o. Club Road, Balehonnur, N.R.Pura Taluk, Chikkamagaluru District – 577 101. (By Sri. Vinod Gowda, Advocate) AND:
1. Sri. Devendra, S/o. Sri Siddappa, Aged about 33 years, R/o. Bidarehalli, Mudigere Taluk, Chikkamagaluru District – 577 101.
2. Sri. B.N. Umesh, S/o. Sri. Nagaraj Joshi, R/o Horanadu, Kalasa Hobli, Mudigere Taluk, Chikkamagaluru District – 577 101.
...Appellant 3. The Branch Manager, National Insurance Co. Ltd., Mangaluru – 575 601.
4. Sri. K.K. Balakrishna, Annapoorneshwari Motors, Kalasa, Mudigere Taluk, Chikkamagaluru District – 577 101.
...Respondents (By Sri. A. K. Bhat, Advocate for R3; Notice to R1,R2 & R4 dispensed with) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 18.06.2015 passed in MVC No.397/2012 on the file of the Principal District Judge, Member, MACT, Chikkamagaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for further Admission on this day, the Court delivered the following, J U D G M E N T The appellant has filed this appeal seeking enhancement of compensation against the Judgment and Award dated 18.06.2015 passed by the Court of the Principal District Judge and M.A.C.T. at Chikkamagaluru in MVC No.397/2012.
2. It is the case of the claimant that, on 03.03.2012 at about 9.00 a.m., when he was proceeding on his Motor Cycle bearing Reg.No.KA-03 EM-7810 from Balehonnur to Niduvale, when he came near Hadvani on Balehonnur-Kottigehara road, respondent No.1 came driving the KKB Bus bearing Reg. No.KA-18 A-3529 in a rash and negligent manner and dashed to the motor cycle. Due to that, the appellant has sustained grievous injuries such as communited distal radius fracture, lateral condyle femur fracture and type III open segmental tibia fracture with pulmonary embolism and also sustained injuries such as contusion over right eye, swelling over right wrist, deep lacerated wound over right leg and lacerated wound over right ankle joint. He has taken treatment in primary health centre at Balehonnur, thereafter, he was shifted to Wenlock hospital, Mangalore, and was in-patient for three moths and engaged attender to look after him. He claimed compensation of Rs.15,00,000/- and states that he was earning about Rs.10,000/- per month.
3. The appellant has been examined as P.W.1.
In the chief examination, he has stated that he has taken first aid treatment at Balehoonur Primary Health Centre and thereafter, he went to Wenlock hospital for further treatment. He was admitted as an in-patient from 13.06.2012 to 21.07.2012. He was given treatment of flap remission done under spinal anesthesia on 26.07.2012 and he was administered IV analgesics and anti-biotic, sutures were removed and after the wounds were healed, he was discharged on 21.07.2012. Thereafter, he was again admitted for further treatment on different dates.
4. P.W.2-Dr. Nagarj, who is a orthopediac surgeon of M.G. hospital at chikkamagaluru has deposed that the appellant-claimant had sustained communited distal radius fracture, right condyle femur fracture and type III open segmental tibia fracture with pulmonary embolism and he has also deposed before the Court that on 08.04.2014 while giving treatment, he had shortening of right lower limb with gross deformity of right leg with tenderness and stated that radiological examination was done, which shows gross deformity with non-union of right tibia, two cancellous screws in situ in right condyle of femur and gross malunion of lower end of radius was done. He has marked documents in support of his injuries, Ex.P4 – Wound certificate, Ex.P7 – Medical bills, Exs. P8 and P9 – Discharge summary, Exs.P10 and P11 – Out-patient chit, Ex.P12 – Discharge certificate, Exs. P17 and P18 – X-ray sheets and Exs. P13 to P16 – photographs.
Considering the case of the respective parties, the Tribunal has awarded the compensation of Rs.1,12,750/-.
5. Learned counsel for the appellant submits that when the claimant/appellant has suffered four grievous injuries and three simple injuries despite of it, the Tribunal has awarded a very meager compensation. The Doctor who has been examined has deposed that the disability is at 30% to 40% to the lower limb and though the claimant has claimed his income at Rs.10,000/- p.m., the Tribunal has failed to assess his said income and failed to award suitable compensation on different heads. Hence, learned counsel submits to enhance the same by awarding reasonable compensation.
6. Learned counsel for the respondent – Insurance company supports the Judgment and Award of the Tribunal and submits that on the basis of the medical bills produced, the Tribunal has awarded a compensation of Rs.32,748/- which is reasonable. The appellant has failed to prove his income by documentary evidence and hence the Tribunal has not awarded any compensation towards loss of future income. Hence, the compensation awarded by the Tribunal is just and proper and there is no ground for enhancement. Accordingly, the appeal may be dismissed.
7. I have heard the learned counsel for both sides and perused the Judgment and Award passed by the Tribunal and I have gone through the LCR.
8. The occurrence of the accident and the injury suffered by the claimant is not in dispute. The claimant sustained grievous injuries such as communited distal radius fracture, lateral condyle femur fracture and type III open segmental tibia fracture with pulmonary embolism and also sustained injuries such as contusion over right eye, swelling over right wrist, deep lacerated wound over right leg and lacerated wound over right ankle joint. He might have suffered huge pain and agony during that period, the compensation of Rs.40,000/- awarded by the Tribunal towards pain and suffering is on the lower side. It is reasonable if it is enhanced to Rs.1,00,000/-. Accordingly, Rs.1,00,000/- is awarded towards pain and suffering as against Rs.40,000/- awarded by the Tribunal.
9. The Tribunal has erred in not awarding any compensation towards attendant charges, food and nourishment and traveling expenses. The claimant was admitted as an in-patient for three months in the hospital on different dates and hence, he might have spent some amount towards incidental charges. During the period of treatment, the claimant had engaged one attendant to take care of him and there might also be some expenditure towards food, nourishment and attendant charges. So also, the claimant being the resident of Balehonnur he has to travel for follow up treatment to Mangalore. Hence, Rs.10,000/- each is awarded towards Attendant charges, food and nourishment charges and Rs.30,000/- is awarded towards traveling expenses to meet the ends of justice.
10. The compensation of Rs.32,472/- awarded by the Tribunal is based on the medical bills produced by the claimant. Hence, there is no scope for enhancement. As there is future surgery, the compensation of Rs.10,000/- awarded by the Tribunal towards Future medical expenses is undisturbed.
11. As the claimant failed to produce oral and documentary evidence to prove his income, the Tribunal has right in not awarded any compensation towards loss of future income. As per the findings of the Tribunal, there is also no proof to show that he was working in the same wine shop in different nature and that his salary was reduced and hence, the Tribunal has not considered this aspect of the matter and not awarded any compensation towards loss of future income. The Tribunal has assigned cogent reasons for not awarding compensation under the head of loss of future income hence, there is no scope to award compensation towards loss of future income.
12. The Tribunal has also erred in not awarding any compensation towards loss of income during laid up period. The claimant, who has suffered several injuries and undergone one surgery, he might have taken follow up treatment for about three months. Hence, Rs.30,000/- is awarded towards loss of income during laid up period, which would meet the ends of justice. Accordingly, the same is awarded.
13. The Tribunal has awarded only Rs.30,000/- towards loss of amenities which is on the lower side. Taking into consideration the evidence of P.W.2 and the nature of the injuries sustained by the claimant, treatment underwent by him, period of hospitalization and that too he has to undergo one more surgery in future. The claimant has to forgo some amenities and happiness in life. Hence, it would be reasonable to award Rs.1,00,000/- towards loss of amenities. Accordingly, Rs.1,00,000/- is awarded towards loss of amenities in addition to Rs.30,000/ awarded by the Tribunal.
14. Accordingly, the appeal is allowed in part.
The Judgment and Award passed by Tribunal is hereby modified and the appellant-claimant is entitled for enhanced compensation of Rs.2,10,000/- which carries interest at 6% p.a. from the date of petition till its realization in addition to the compensation of Rs.1,12,750/- with interest @ 9% p.a. from the date of petition till its realization as awarded by the Tribunal.
VBS Sd/- JUDGE