IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.8367/2018 (MV) BETWEEN:
SRI HANUMANTHA, S/O. VENKATAIAH @ HANUMAIAH, AGED ABOUT 33 YEARS, RESIDING AT:
KARIKALLADODDI VILLAGE AND POST, MARALAVADI HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT-571 511 (BY SRI GIRIMALLAIAH, ADV.) AND:
1. SHRIRAM GENERAL INSURANCE COMPANY LTD., NO.5, II FLOOR, MONARCH CHAMBERS INFANTRY ROAD BENGALURU-560 001 BY ITS MANAGER ... APPELLANT 2. MR. KHADAR PASHA Y.H., S/O. HAYATH SAB MAJOR, NO.156A, PUMP HOUSE ANEKAL BENGALURU DISTRICT-562 106.
... RESPONDENTS (BY SRI B. PRADEEP, ADV., FOR R-1) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.04.2018 PASSED IN MVC NO.110/2014 (OLD MVC NO.557/2013) ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, KANAKAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Learned counsel for the appellant and the learned counsel for the 1st respondent are present.
2. Though this appeal is listed for orders, with the consent of learned counsel for both the parties, it is taken up for final disposal.
3. This appeal is by the claimant for enhancement of the compensation awarded on 20.04.2018 in MVC No.110/2014 on the file of the Senior Civil Judge and MACT, Kanakapura (for short ‘the Tribunal’) on account of injuries sustained by him in a road traffic accident.
4. The factual matrix of the appeal is as under:
Appellant filed a claim petition before the Tribunal contending that on 24.09.2013 at about 6.00 a.m., he was proceeding in a Tractor and Trailer bearing Registration No.KA03-T-1355-1356 as loader at that time on Harohalli-Maralavadi road near Ane Hosahalli, Addahalli, Maralavadi Hobli, Kanakapura Taluk, the driver drove the said Tractor and Trailer in a rash and negligent manner and turtled the same. As a result, the accident was occurred and the petitioner sustained severe injuries to his left leg. Immediately the petitioner was shifted to Sanjay Gandhi Hospital, where he was treated as inpatient, undergone operation and internal fixture was done. PW2-Doctor who treated the petitioner opined that the injuries sustained by him are permanent in nature and advised him not to involve in any physical strain for a minimum period of six months. The petition came to be registered on the file of the Tribunal. In response to the service of notices the respondents have appeared through their respective counsel and contested the petition by filing their separate objection statements denying the entire averments made in the petition and taken contention that false case was registered by the petitioner against the driver of the Tractor and Trailer in collusion with the police in order to get wrongful benefit. But the 1st respondent admitted the Insurance Policy issued to the Tractor and Trailer. It is further stated in their objection statement that the petitioner was not loader of the said Tractor and Trailer but he was gratuitous passenger in the said tractor. In order to gain wrongful benefit in collusion with the police he has made a false case. All these grounds are urged in the statement of objections and prayed for rejection of the claim petition made by the petitioner. Based upon the pleadings of the parties, the issues have been framed by the Tribunal. In order to establish the case against the respondents seeking compensation the petitioner examined himself before the Tribunal as PW1 and also got examined the Doctor who treated him as PW2 in order to prove the contention taken in the claim petition. The petitioner and also got marked documents Exs.P1 to P19. On the other side, Insurer-respondent got examined its Officer as RW1 and also got marked Exs.R1 to R3.
5. On evaluating the entire evidence of PWs1 and 2, also the evidence of RW1 and the documents produced by the parties, the Tribunal allowed the claim petition in part and awarded compensation in a sum of Rs.3,24,000/- with interest at 7.5% per annum from the date of petition till realization. Not being satisfied with the same, the claimant is before this Court by the urging various grounds that the compensation awarded by the Tribunal found to be inadequacy. Therefore, considering all the grounds urged in this appeal sought for enhancement of the compensation under all the heads awarded by the Tribunal.
6. The learned counsel for the appellant has taken me through the evidence of PWs.1 and 2 and the documents Ex.P5 Wound Certificate, Exs.P6 to 9 Discharge Summery, Ex.P10 Outpatient report, Ex.P11 39 medical bills, Ex.P12 Prescriptions, Ex.P19 X-ray and contended that the appellant being the injured treated as inpatient in the hospital for more than thrice and subsequently took follow up treatment and also undergone rest for a period of two years. But the Tribunal has not awarded any amount to this aspect and even towards loss of income during laid up period. It is further contended that the appellant/inured aged about 28 years at the time of accident sustained injuries as indicated in the Wound Certificate Ex.P5 and as per the Discharge Summaries Exs.P6 to P9 issued from Sanjay Gandhi Hospital. The claimant had taken treatment as an inpatient from 25.09.2013 to 09.10.2013, from 13.11.2013 to 27.11.2013, from 14.05.2014 to 05.06.2014 and from 08.10.2014 to 27.10.2014 for his accidental injuries, where he was diagnosed fracture of both bones of left leg compounded type IIIB and he was undergone surgery and treated by way of eternal fixtation. Again he was operated by fixing CRIF with IMFNAIL. Further the appellant is required amount for removal of the deformity on injuries. But the Tribunal has not considered these aspects. These are the grounds urged by the learned counsel for the appellant for seeking intervention of the impugned judgment and award passed by the Tribunal.
7. Per contra, the learned counsel for the 1st respondent vehemently contended that though the PW1 being injured has been examined himself and also got marked documents Exs.P1 to P19 has not proved the claim. Apart from that the Insurance Company got examined its Authorized Officer as RW1 and got marked Exs.R1 to R3. All the oral and documentary evidence adduced and produced by both the parties have been rightly appreciated by the Tribunal and awarded reasonable compensation. Therefore, in this appeal it does not call for any interference by this Court. On these grounds he seeks for dismissal of the appeal on devoid of merits.
8. In the context of all the above contentions taken by the learned counsel for both the parties, it is relevant to state that there is no dispute with regard occurrence of the accident on 24.09.2013 causing injuries to the appellant when he was proceeding in the offending vehicle as a Loader, due to rash and negligent driving by its driver. It is also not in dispute that the deceased was treated in the Sanjay Gandhi Hospital as inpatient and undergone operations and internal fixtation was done and also have taken follow-up treatment. In support of his case the appellant has produced Ex.P5-Wound Certificate, Exs.P6 to P9-Discharge Summaries, Ex.P10- Outpatient report, Ex.P11- 39 Medical bills, Ex.P12- Prescriptions and Ex.P10 – x ray. The doctor who treated the appellant examined as PW2 has assessed the disability of the appellant at 24% to his whole body. The Tribunal has assessed the income of the appellant at Rs.5,000/- per month in the absence of proof of definite income based on the evidence available and applied the multiplier of 17. Keeping view the above facts, interference is called for in this appeal. Taking in to consideration the year of accident, place of residence of the appellant and cost of living the income is to be reassessed at Rs.8,000/-
per month. However, the multiplier 17 applied by the Tribunal is correct by considering the age of the appellant as 28 years. Accordingly, the loss of future income due to disability works out as under:
Rs.8,000/- x 12 x 17 x 24% = Rs.3,91,680/-.
9. Further, the compensation awarded towards conveyance, attended charges and diet requires to be enhanced to Rs.30,000/- as against Rs.10,000/- awarded by the Tribunal. Accordingly awarded. Keeping in view the injuries sustained and the treatment undergone by the appellant the compensation awarded by the Tribunal at Rs.40,000/- towards pain and suffering is enhanced to Rs.60,000/- to meet the ends of justice. In so far as loss amenities and happiness is concerned, a sum of Rs.40,000/- is awarded. Further, keeping in view the fact that the appellant must have undergone follow up treatment and rest due to accidental injuries for at least four months, a sum of Rs.36,000/- is awarded towards loss of income during laid up period. The compensation awarded by the Tribunal at Rs.29,200/- towards medical expenses is just and proper and does not call for interference. However, in view of the evidence of PW2-Doctor the claimant requires some amount for removal fixtures, therefore towards future medical expenses at Rs.10,000/- is awarded.
10. Further, the interest awarded at 7.5% per annum on the compensation amount is on the higher, it is to be 6% per annum.
11. In all, the appellant is entitled to Rs.5,96,880/- with interest at 6% per annum from the date of petition till realization as against Rs.3,24,000/- awarded by the Tribunal. There will be enhancement of Rs.2,72,880/-.
12. Accordingly, the following:
ORDER The appeal is allowed in part.
The 1st respondent – Insurer is directed to deposit the said amount within four week from the date of receipt of a copy of this judgment.
Sbs* SD/-
JUDGE