IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3097/2014 [MV] BETWEEN:
SRI. DHARSHAN S/O NEELAKANTAPPA AGED ABOUT 28 YEARS R/AT KARADALU VILLAGE KIBBANAHALLI HOBLI TIPTUR TALUK TUMKUR DISTRICT.
(BY SRI.H V BHANU PRAKASH, ADV.) AND:
1. SRI T.G CHANDRASHEKAR S/O GANGADHARAPPA AGED ABOUT 46 YEARS R/A NO.177, 2ND CROSS BILEHALLY LAYOUT BANNERUGHATTA ROAD BANGALORE-560076 2. THE DIVISIONAL MANAGER ...APPELLANT ICICI LUMBARD MOTOR INSURANCE CO. LTD., ZENITH HOUSE KESHAVRAO KHADE MARG MAHALAKSHMI MUMBAI-400034.
…RESPONDENTS (BY SRI.B PRADEEP, ADV. FOR R2 NOTICE TO R1 IS D/W) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.08.2013 PASSED IN MVC NO.367/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE & XIV MACT, TIPTUR PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is in appeal seeking enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 20.08.2013 passed in MVC No.367/2009 on the file of Senior Civil Judge, XIV MACT, Tiptur.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 26.01.2008 when the claimant was travelling in a private bus bearing No.KA.01.B.787, near Mudremane estate cross, Moodigere Gonibeedu road, the driver of the said bus drove the bus in high speed, rash and negligent manner and dashed to a tree causing accident, due to which the claimant sustained grievous injuries and he was immediately shifted to MGM General Hospital, Mudigere and later shifted to SSM Hospital, Hassan. He took treatment as inpatient for two weeks. The claimant states that he was working as a mechanic at Mysore Engineering works, HMT Estate, earning a salary of Rs.8,000/- per month. He was aged 23 years as on the date of accident.
3. On issuance of summons the 1st respondent remained absent and respondent No.2 – Insurance Comapny appeared and filed its written statement denying the claim petition averments. Further the insurer denied the issuance of policy in respect of the bus in question and further contended that the driver of the vehicle had no valid and effective driving licence. The Claimant examined himself as PW.1 and also examined the Doctor as PW.2, apart from marking the documents Exs.P1 to P7. The tribunal on appreciating the material on record awarded total compensation of Rs.99,100/- along with interest at 6% p.a. from the date
Not being satisfied with quantum of compensation awarded by the Tribunal, the appellant/claimant is in appeal before this Court seeking enhancement of compensation.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent - Insurance Company. Perused the entire material on record.
5. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side when compared to the injuries suffered and treatment taken by the claimant. It is his submission that the claimant has sustained fracture of the right forearm bones at lower 1/3rd and laceration of the right forearm measuring 6 x 2 cms. It is his submission that the Doctor has assessed the disability to the limb at 12%, but the Tribunal has failed to award any compensation towards disability. It is his further submission that the compensation awarded on various heads are on the lower side and prays for enhancement of compensation.
6. Per contra, learned counsel for the 2nd respondent submits that the Tribunal has awarded just compensation which needs no interference. He further submits that the claimant has failed to prove that due to accidental injuries, he has suffered functional disability. Further he has also not placed on record any material to establish that due to the accidental injuries the income has come down or salary is reduced. Thus he prays for dismissal of the appeal.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arise for consideration is as to 'Whether the claimant would be entitled to enhancement of compensation in the facts and circumstances of the case?' The said point is answered in the affirmative for the following reasons :-
The occurrence of the accident on 26.01.2008 involving Bus bearing No.KA-01-B—787 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant has suffered fracture of the right forearm bone at lower 1/3rd which is a grievous injury. Ex.P.4 - the wound certificate would indicate that the injury suffered by the claimant. PW.2 - the Doctor states that the claimant suffers from 12% disability to the limb. The claimant has not established as to how the said disability would come in his way to discharge his day to day activities. Further he has not placed on record any material to indicate that due to the accidental injuries his income has come down nor his salary has been reduced. Thus the Tribunal is justified in not assessing the whole body disability for the purpose of awarding compensation. The claimant was inpatient for 12 days for the injuries suffered in the accident. The Tribunal has failed to award any compensation on the head ‘loss of amenities in life’. As the claimant has suffered fracture of right forearm. The claimant would be entitled to a sum of Rs.20,000/- on the head loss of amenities. As the claimant was inpatient for 12 days, the compensation awarded on the head attendant charges, food and nourishment are on the lower side, for which the claimant would be entitled for enhanced compensation. Thus the claimant would be entitled to modified compensation on the following heads :-
a. Pain and suffering,
Total Rs.1,34,250/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimant is entitled to modified compensation of Rs.1,34,250/- as against Rs.99,100/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms