IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.8087/2012 (MV) BETWEEN:
SRI JAYAVARDHANA @ NAGENDRA, S/O LATE JANARDHANA, AGED ABOUT 25 YEARS, R/AT No.1, GANGA MALLAIAH BLDG., RAGHAVANAHALLI, THALAGHATTAPURA POST, KANAKAPURA ROAD, BANGALORE SOUTH. … APPELLANT (BY SRI ADINARAYAN, ADVOCATE) AND:
1. THE NATIONAL INSURANCE CO. LTD., 1ST FLOOR, ANAND BUILDING, KULAL POST, MANGALORE, CANARA SOUTH, KARNATAKA – 575 019. (INSURER OF THE LORRY BEARING No.KA-19-7483).
2. MR. BERNARD D’SOUZA, S/O DENIS D’SOUZA, ASHA JYOTHI, CHURCH AREA, SURATHKAL, MANGALORE, CANARA SOUTH, KARNATAKA - 575 157. (R.C. OWNER OF THE LORRY BEARING No.KA-19-7483). ... RESPONDENTS (BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R-1, NOTICE NOT ORDERED TO R-2) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.6.2011 PASSED IN MVC.NO.3010/2010 ON THE FILE OF THE IX ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, 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 Though this appeal is listed for admission, with the consent of the learned counsel for the parties, it is taken up for final disposal.
2. This appeal is filed by the claimant challenging the judgment and award dated 15.6.2011 passed in M.V.C.No.3010/2010 on the file of the IX Additional Senior Civil Judge, Small Causes Court, Bangalore, questioning the quantum of compensation awarded by the Tribunal.
3. The grounds urged in the appeal memorandum is that the Tribunal has committed an error in awarding the compensation of Rs.79,000/-. The Tribunal failed to take into consideration the documents at Exs.P.13 to 20 and awarded only Rs.15,000/- under the head 'medical expenses', even though documents are produced to the tune of Rs.17,627/-. The Tribunal committed an error in awarding an amount of Rs.25,000/- under the head 'pain and agony’. The Tribunal awarded an amount of Rs.10,000/- under the head 'loss of disability' and also failed to take the income as Rs.6,000/- to 7,000/- per month and the Tribunal has taken the income as Rs.3,000/- per month, even though the claimant was an auto driver and the same is substantiated by document Ex.P.8. The Tribunal has not awarded just and reasonable compensation. The learned counsel for the appellant in his argument also contended that the Tribunal has committed an error in not awarding just and reasonable compensation under all the heads. Hence, it requires to re-visit the compensation awarded by the Tribunal.
4. Per contra, the learned counsel for the respondent No.1/Insurance Company would contend that the Tribunal has awarded just and reasonable compensation and it is the accident of the year 2010 and the claimant has suffered only one fracture and Rs.25,000/- was awarded under the head ‘pain and agony’. With regard to the medical expenses, the learned counsel concedes that lesser amount is awarded in comparison with the documents produced before the Court. The claimant has not examined any doctor and has not proved any disability. Hence, the question of awarding the compensation under the head ‘future loss of income’ does not arise. The Tribunal has awarded just and reasonable compensation under all the heads. Hence, there are no grounds to interfere with the order of the Tribunal.
5. Having considered the rival contentions of both the counsel, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
(ii) What Order?
Points (i) and (ii):
6. There is no dispute with regard to the accident and the only question which arises for the consideration of the Court is whether the Tribunal has granted just and reasonable compensation or not. The claimant contended that he has suffered two fractures. In support of his contentions he has produced the documents at Exs.P.13 and 14 i.e., the wound certificate and discharge summary. The perusal of Ex.P.13 discloses that the claimant has suffered one fracture i.e., fracture of sacrum. In order to substantiate that he has suffered two fractures, no documents are produced. Ex.P.14 – discharge summary, also confirms that he has suffered fracture of sacrum. Hence, the contention of the learned counsel for the appellant that he has suffered two fractures cannot be accepted in the absence of any material.
7. Having considered that the accident was of the year 2010 and considering the nature of the fracture, the Tribunal awarded an amount of Rs.25,000/- under the head 'pain and agony’. The claimant was an inpatient for a period of three days. Hence, I do not find any reason to enhance the compensation under the head ‘pain and suffering’.
8. On perusal of the judgment and award of the Tribunal, it is evident that the Tribunal considering the documents produced at Ex.P.17 – medical bills to the tune of Rs.12,627/- and Ex.P.16 – final bill for an amount of Rs.5,000/- awarded an amount of Rs.15,000/- under the head ‘medical expenses’. Actually it comes to Rs.17,627-. Having considered the same, it is appropriate to award an additional compensation of Rs.5,000/- under the head ‘medical expenses’.
9. The Tribunal considering the avocation of the claimant as auto driver and having regard to the contention of the claimant that he was earning Rs.6,000/- to Rs.7,000/- per month, in the absence of any documentary proof, the Tribunal has taken the income of the claimant as Rs.3,000/- per month. The Tribunal, in the absence of any documentary proof, ought to have taken the income of the claimant at Rs.6,500/- per month, as he was having driving license as per Ex.P.8 and was also working as auto driver. As the accident is of the year 2010, it is appropriate for this Court to take the income of the claimant at Rs.6,500/- per month. The Tribunal has taken laid up period as three months, which is on the lesser side. Having regard to the fact that he has suffered fracture, which requires three months to unite the same and thereafter also it requires one month for rest, it is appropriate for this Court to take the laid up period as four months. Hence, the loss of income during the laid up period comes to Rs.17,000/- (Rs.6,500/- x 4 (-) 9,000/- = Rs.17,000/-).
10. The Tribunal has rightly awarded an amount of Rs.10,000/- under the head ‘conveyance, nourishment and attendant charges’ considering the fact that he was in the hospital for a period of three days. Hence, I do not find any reason to enhance the same.
11. Having considered the material on record, the Tribunal awarded an amount of Rs.10,000/- under the head ‘loss and disabilities’, since he has suffered the fracture of sacrum and he might have sustained some sort of disability. No doubt the claimant has not examined the doctor and even in the absence of the evidence of the doctor also, the Court has to take note of the nature of the injuries sustained by him. The fracture of sacrum is not disputed and the same is evident from Exs.P.13 and 14. Having considered he is aged about 23 years and also his nature of job as driver, instead of awarding Rs.10,000/-, in the absence of medical evidence and also not calculating future loss of income, the Tribunal ought to have awarded Rs.50,000/- under the head loss and disabilities. Hence, an additional amount of Rs.40,000/- is awarded under the head ‘loss and disability’.
12. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal is modified granting additional compensation of Rs.62,000/- with interest at 6% per annum.
Sd/- JUDGE MD