IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2696 OF 2013 (MV) c/w MISCELLANEOUS FIRST APPEAL NO.8911 OF 2012 (MV) In M.F.A.No. 2696 of 2013:
BETWEEN:
SRI KARUNAPPA KSHATRIYA S/O LATE EKANATH KSHATRIYA AGED ABOUT 51 YEARS R/AT NO.251, 3RD MAIN ROAD, OPP.MANJUNATHA NILAYA 3RD MAIN ROAD, VINAYAKANAGAR, BELGAUM CROSS, AFS POST YELAHANKA BENGALURU – 560 063. ...APPELLANT (By Sri ANIL KUMAR, ADVOCATE) AND:
1. THE REGIONAL MANAGER RELIANCE GENERAL INSURANCE CO.LTD., CENTENARY BUILDING, 5TH FLOOR, NO.28, M.G.ROAD, BENGALURU - 560 001.
2. Mr.S.PETER MORRIS S/O Mr.THOMAS SEBASTAIN NO.20-B 5TH CROSS, I MAIN JYOTHINAGAR, VIMANAPURA POST, BENGALURU. ...RESPONDENTS (By Sri D.S.SRIDHAR, ADVOCATE FOR R1;
Notice to R2 dispensed with order dated 09.04.2014) THIS MFA FILED U/S 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 02.02.2012 PASSED IN MVC NO.1034/2011 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU (SCCH-11), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
In M.F.A.No.8911 of 2012: BETWEEN:
M/s.RELIANCE GENERAL INSURANCE CO.LTD., # 28, EAST WING, 5TH FLOOR CENTENARY BUILDING M.G.ROAD, BENGALURU-560001 REPRESENTED BY ITS ZONAL Sr.MANAGER. (By Sri D.S.SRIDHAR, ADVOCATE) AND:
... APPELLANT 1. KARUNAPPA KSHATRIYA S/O LATE EKANTH KSHATRIYA AGED 50 YEARS R/AT # 251, 3RD MAIN ROAD, VINAYAKANAGAR, BAGALURU CROSS, A.F.S. POST, YELAHANKA, BENGALURU-560063 2. S.PETER MORRIS S/O THOMAS SEBASTAIN MAJOR, NO.20-B, 5TH CROSS, 1ST MAIN, JYOTHINAGAR, VIMANAPURA POST BENGALURU – 560 016. ...RESPONDENTS (By Sri M.ANIL KUMAR, ADVOCATE FOR R1;
R2 – served) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.02.2012 PASSED IN MVC NO.1034/2011 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU, AWARDING A COMPENSATION OF Rs.3,33,600/- WITH INTEREST @ 6% P.A. FROM 18.02.2011 TILL REALIZATION.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T M.F.A.No.2696 of 2013 is filed by the Claimant and M.F.A.No.8911 of 2012 is filed by the Insurance Company. Both the appeals are directed against the judgment and award dated 02.02.2012 in M.V.C.No.1034 of 2011 passed by the M.A.C.T., Bengaluru wherein a sum of Rs.3,43,600/- (corrected) has been awarded as compensation for the injuries sustained by the claimant in a road traffic accident.
2. I have heard the learned counsel appearing for the claimant as well as the learned counsel appearing for the Respondent/Insurance Company.
3. The brief facts of the case are that on 08.01.2011 at about 2.00 p.m., on B.B.Road, near BSF Gate, Bagaluru Cross, Bengaluru, when the claimant was proceeding on a motor cycle bearing Reg.No.KA-50-J-8693, at that time, the driver of the car bearing Reg.No.KA-03-D-4982 by driving the said car in a rash and negligent manner dashed against the motor cycle of the claimant, on account of which, he suffered grievous injuries such as fractures, etc., and took treatment in Deeksha hospital as an inpatient and surgery was conducted and implants were fixed.
4. A total compensation of Rs.5 Lakhs was claimed by the claimant. In support of his case, he got examined himself as PW-1 and the doctor was examined as PW-2 and got marked Ex.P1 to P12. On behalf of the Respondent/Insurance Company, RW-1 was examined and Exs.R1 to R3 were marked in evidence.
5. The Tribunal, after considering the oral and documentary evidence on record awarded a total compensation of Rs.3,43,600/- under the following heads:
Pain and sufferings Rs.50,000.00 Loss of happiness and future amenities Loss of income during the treatment period Rs.50,000.00 Rs.16,000.00 Incidental charges Rs.24,000.00 Medical expenses Rs.1,00,000.00 Loss of future income Rs.93,600.00 Future medical expenses Rs.10,000.00 Total Rs.2,43,600.00 Correct Total Rs.3,43,600.00 7. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel for the claimant contended that the claimant was working as a Security Assistant in Indian Institute of Science and drawing a salary of Rs.8,500/- per month as per Ex.P7 – Salary Certificate and therefore, the Tribunal was not justified in taking his salary as Rs.4,000 per month. It is also contended that the total compensation awarded under different heads are not commensurate with the injuries and disabilities suffered by the appellant. Therefore, the learned counsel seeks to enhance the compensation.
8. On the other hand, the learned counsel for the Insurance Company contended that as per the evidence of the claimant himself, he has continued with the job and he has not lost any income due to disability. It is contended that the compensation awarded under the head of pain and suffering, loss of amenities and loss of future income are on the higher side and therefore, he seeks to reduce the compensation awarded by the Tribunal.
9. The accident in question involving the Car bearing Reg.No.KA-03-D-4982 and the actionable negligence on the part of the driver of the said Car and the claimant sustaining injuries in the accident is not seriously disputed. According to the claimant, he was drawing a salary of Rs.8,500/- per month by working as a Security Assistant in Tata Institute. Ex.P7 is the salary certificate marked through PW-1. Perusal of Ex.P7 goes to show that he was working on a contract basis and drawing a salary of Rs.8,500/- per month. The evidence of PW-1 goes to show that he continued to work in the said Tata Institute of Science. Ex.P7 has been issued by the Chief Security Officer. However, to establish Ex.P7, no one has been examined. Considering the fact that the appellant was working on contract basis and also the fact that he continued with his job after the accident, it cannot be said that the claimant has proved that there is loss of income due to disability suffered by him. The Tribunal has awarded a sum of Rs.93,600/- towards loss of future income taking the income at Rs.4,000/- per moth and assessing disability at 15% to the whole body.
10. Ex.P6 is the wound certificate. The perusal of the medical records goes to show that the appellant had suffered: comminuted fracture dislocation (posterior wall of acetabulum) of right hip with intra articular fragments. Surgery was conducted and implants were fixed. He was an inpatient from 08.01.2011 to 25.01.2011. Considering the injuries including dislocation of right limb, etc., the doctor has opined that the claimant has suffered permanent disability to an extent of 15% to the whole body. Ex.P5 is the discharge summary, which also supports the evidence of PW-1 and PW-2.
11. Considering the nature of injuries and the disability suffered, sum of Rs.93,600/- awarded towards loss of future income is adjusted towards the disability sustained by the claimant. The Tribunal has awarded a sum of Rs.50,000/- towards pain and suffering and Rs.50,000/- towards loss of amenities and Rs.16,000/- towards loss of income during the treatment period and Rs.24,000/- towards incidental charges and Rs.10,000/- towards future medical expenses. The same are just and reasonable.
12. Considering the material evidence on record and considering the entire facts and circumstances of the case, the total compensation cannot be held to be on the higher side. The Tribunal, after considering the oral and documentary evidence on record has awarded just and reasonable compensation, which does not call for interference by this Court. Hence, both the appeals are dismissed.
The amount in deposit before this Court in M.F.A.No.8911 of 2012 shall be transmitted to the Tribunal.
Sd/- JUDGE DH