IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN MISC. FIRST APPEAL No.8868 OF 2010 (MV) BETWEEN:
Sri. Keshavegowda, 34 years, S/o. Kabbaligere Subbegowda, R/at Doddamagge Village, Arakalgud Taluk, Hassan District. …Appellant (By Sri. C. Sharath Babu, Advocate for Sri. Prasanna V.R., Advocate) AND 1. Sri. Rudresha, S/o. Siddappa, KA-13-8582 Goods Auto Owner, R/at Hosaline Road, Hassan City.
2. The New India Assurance Company, Nehru Memorial Hall, 3rd Floor, Dr. Amedkar Road, Pune -411 001, having its Branch at B.M. Road, Hassan, rep. by its Manager. …Respondents (By Sri. C.R. Ravishankar, Advocate) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 02.06.2010 passed in MVC No. 208/2008 (Old No. 277/2006) on the file of the Presiding Officer, Fast Track Court, Arkalgud, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Misc. First Appeal coming on for hearing this day, the delivered made the following:
JUDGMENT This appeal is filed by the claimant/appellant being not satisfied with the award passed by the Tribunal in MVC No.208/2008 (Old No.277/2006) on the file of Presiding Officer, Fast Track Court, Arkalgud dated 02.06.2010.
The ranks of the parties before the trial Court is retained for convenience.
2. The claimant filed the claim petition under Section 166(1) of MV Act before the Tribunal for claiming compensation of Rs.10,00,000/- inter-alia contending that on 31.05.2006 at about 3.00 p.m. when he was proceeding on the left side of the road near Rangegowda’s House at Baragoor-Doddamagge, due to rash and negligent driving of the auto rikshaw bearing registration No. KA-13-8582, met with an accident. Due to which he has sustained injuries and he was taken to the hospital and admitted as inpatient. Thereafter, he has taken treatment in several hospitals. Due to rash and negligent driving of the driver of Autorikshaw, he sustained grievous injuries. R1 is the owner of the auto and R2 being the insurance company of autorikshaw are jointly and severally liable to pay the compensation, hence, claimed Rs. 10.00 lakhs as compensation.
3. In pursuance of the notice, R1 though appeared before the Court, had not filed any statement of objection. But the insurance Company filed the statement of objections by taking the contention that the petition, is not maintainable either in law or in facts and denying the rash and negligent driving of the autorikshaw. Further denying insurance, treatment, income of the claimant and also taken the contention of the insured, the owner of the auto, has violated the conditions of the policy. Hence, prayed for dismissal of the petition.
4. After framing the issues, appellant himself has examined as PW-1, the doctor as PW-2 and got marked Ex.P1 to 18 and respondents have marked two documents. After hearing the arguments the Tribunal has awarded the compensation as follows.
5. Being aggrieved by the same the appellant/claimant before this Court contended the award passed by the trial Court as very meager and insufficient to the injury and disability suffered by the appellant/claimant and hence prayed for enhancement of the same.
6. Further, hearing the arguments and perusal of the judgment of the tribunal, it is an undisputed fact that on 31.05.2006 at about 3.00 p.m. the accident was occurred due to rash and negligent driving of the autorikshaw bearing registration No. KA-13-8582 due to which the appellant/claimant sustained injuries. He was taken to the hospital, he was treated as inpatient. Even thereafter he has taken treatment in various hospitals. The Insurance Company though in the statement of objections has denied the rash and negligent driving and violation of terms and conditions by the owner of the autorikshaw but not produced any documents except leading evidence representive of insurance company and marking insurance policy. The policy was in force as on the date of the accident. Therefore, the only point arises for consideration to this Court that whether the appellant is entitled for the enhancement of the compensation as the award passed by the tribunal was meager and insufficient to the facts and circumstances of the case.
7. On perusal of the injuries sustained by the appellant as per ex. P10, would certainly shows the claimant has sustained injury on the left knee and left elbow and also auto-amputation of left foot at the level of metatarsal neck. Both first and second injuries are simple in nature and third injury is grievous in nature.
8. Ex.P-12 is the photograph showing the amputation of the front leg of the claimant at the level of metatarsal neck. The medical documents goes to show that injury and amputation at the level of metatarsal neck of left foot. The appellant has lost his five fingers up to the metatarsal neck of the foot. Therefore, it is not only grievous injury but it is disfiguration and permanent amputation and disability. Therefore, the Tribunal granting of Rs.20,000/- towards pain and suffering is very meager. Therefore, considering the facts and circumstances of the case, I propose to award Rs.50,000/- towards pain and suffering. So also the Tribunal has awarded only Rs.10,000/-towards the medical expenses. On perusal of the medical records and as per the hospital bill dated 28.06.2006 of Hemavathi Hospital, Hassan, he was admitted to the hospital on 31.05.2006 and discharged on 27.06.2006. The said bill itself shows that Rs.19,647/- has been spent towards medical expenses. Apart from that various other bills like taking x-ray and other scanning reports, purchasing of medicines which were calculated to Rs.9,647/-. But the Tribunal without properly considering the records has awarded only Rs. 10,000/- towards medical expenses, which is not correct. The bill itself shows that he has spent nearly Rs.30,000/- towards medical expenses. Though the claimant stated that he has taken treatment almost for one year after the discharge from the hospital and due to the nature of the injury and amputation, the contents of the claimant cannot be disbelieved. It is also cannot be disbelieved the copy of the medical bills produced by the claimant. Therefore, I propose to award additional Rs.25,000/- towards the medical expenses in addition to Rs.10,000/- awarded by the Tribunal. The Trial Court has not awarded any amount towards food and nourishment during the treat for more than nearly one month when he was in the hospital. In order to take care of the appellant/claimant at the hospital, one attendant is required and they might have spent lot of amount on food and nutrition for the appellant and his attendant during the treatment. Therefore, considering the facts and circumstances, I propose to award Rs.10,000/- towards food and nutrition during the period of treatment.
9. The tribunal also committed error by not awarding any amount towards transport and incidental charges for the claimant as the medical bills and other documents goes to show that he was continuously under treatment even more than a month. Therefore, I propose to award Rs.5,000/- towards transportation and incidental charges during the treatment period. Also the income of the appellant, the appellant has stated that he was earning Rs.8,000/- per month as self employed and an agriculturist. But no documents were produced to support his case. In absence of the proof of income, the Tribunal considered Rs.3,000/-per month as his income. But the accident in question was occurred on 31.05.2006. During that time even the agricultural coolie was earning Rs.150/- per day, which works out to Rs.4,500/- per month. Though the appellant produced Ex.P-14, the RTC extract showing that he was having land of 1Acre, 17 Guntas but no other documents were produced to show that he is actually receiving any income from the land. Therefore, considering the facts and circumstances of the case, I propose to take Rs.4,000/- income per month instead of Rs.3,000/- considered by the Tribunal. As per the evidence of PW 2, Doctor, the appellant suffered 40% disability. Though the same was not disputed by the respondents, but looking to the amputation of metatarsal fingers of the appellant, he could not walk properly as earlier and also became disfigured and required to limp and cannot walk for a long distance. Therefore, taking into consideration the amputation, I propose to take 20% disability towards the whole body instead of 15% as considered by the Tribunal.
10. The income of Rs.4,000/- was calculated as income of the appellant per month. The loss of income would be 20% towards disability, which comes to Rs.800/- per month, multiplied into 12 months which comes to Rs.9,600/-. As per Sarala Varma and others Vs Delhi Transport Corporation and Anr reported in (2009) 6 SCC 121, the appropriate multiplier for the age group of the claimant from 25-30 years at the time of the accident is 17, as the age of the appellant is 30 years (9600 x 17 + 1,63,200/-). Rs.1,63,200/- would be the loss of future income of the appellant.
11. The Tribunal has awarded Rs.5,000/- towards loss of the future happiness and Rs.5,000/- towards shortening of the life span. Both the amount awarded is very meager. Due to the amputation definitely appellant has suffered future loss of happiness and life span and also disfiguration. Therefore, I propose to award Rs.40,000/- instead of Rs.10,000/- awarded by the Tribunal.
12. The Tribunal also considered Rs.6,000/- towards the loss of income during the treatment. But the appellant stated that he has taken treatment throughout one year and he was inpatient for about one month. Therefore, considering the facts and circumstances of the case, Rs.10,000/- is awarded towards loss of income during the period of treatment, in addition to the amount of Rs.6,000/- as awarded by the Tribunal. I propose to award an amount of Rs.2,25,000/- as additional award in addition to the award passed by the tribunal with 6% interest from the date of filing of the petition. Hence I pass the following:
ORDER Appeal is allowed in part. Award passed by the Tribunal is hereby modified. Rs.2,25,000/- is awarded in addition to the award passed by the Tribunal with 6% interest from the date of filing of the petition till the realization.
The apportionment made by the Tribunal in respect of fixed deposit is retained. Hence, Rs.1,50,000/- is ordered to be deposited as fixed deposit for five years in the name of the appellant in any nationalized bank and he is entitled to receive the interest accrued thereon periodically.
Accordingly, the appeal is disposed off.
SD/-
JUDGE BVK