IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR M.F.A. NO. 8764 OF 2013 (MV) BETWEEN:
SRI.KRISHNAMURTHY S/O LATE VENKATARAMANAPPA AGED ABOUT 52 YEARS R/AT BASAVANNADEVARA MUTT SONDEKOPPA ROAD NELAMANGALA BENGALURU DISTRICT.
(BY SRI GURUDEV PRASAD K.T., ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO. LTD. NO.36/4, OPP. KEERTHASHRAM KOTHANUR MAIN ROAD J.P. NAGAR 7TH PHASE BENGALURU – 560 078.
2. SRI K.V. CHANDRASHEKAR REDDY S/O. K.V. LAKSHMAN REDDY MAJOR, NO.116/5, 10TH CROSS APR KALYANA MANTAPA ROAD BEGUR ROAD, HONGASANDRA BENGALURU – 560 068.
... APPELLANT … RESPONDENTS (BY SRI L. SREEKANTA RAO, ADVOCATE FOR R.1, NOTCE TO R.2 IS HELD SUFFICIENT V/O. DATED 6.12.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.08.2013 PASSED IN MVC NO.7407/2011 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE AND XVIII ADDITIONAL C.M.M, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the appellant – claimant challenging the impugned judgment and award dated 27.08.2013, passed in MVC No.7407/2011 by the Member, Motor Claims Accident Claims Tribunal, XX Additional Small Causes Judge, Bengaluru, awarding compensation in a sum of Rs.64,625/- rounded off to Rs.65,000/- and has ordered that the claimant – appellant would be entitled to the interest at 6% p.a. The same is mentioned in the operative portion of the impugned judgment of the Tribunal. The compensation awarded by the Tribunal is found to be inadequate and requires for intervention of this Court as it is on the lower side. He prays for consideration and re-appreciation of the entire evidence on record and seeks enhancement of compensation by awarding suitable compensation.
2. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 27.10.2011, at about 11.50 a.m., when the claimant said to be the injured was riding the motorcycle bearing Reg. No.KA-04-X-7180 on Sondekoppa road near New Court, Nelamangala Town, at that time, the driver of one auto-rickshaw bearing Reg. No.KA-04- C-1455 driven the same in a rash and negligent manner and hit the claimant. Due to the impact, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Mathrushree Hospital, Nelamangala for treatment, in order to take treatment. He was treated as an impatient from 27.10.2011 to 29.10.2011. The injured was underwent open reduction with internal fixation of DCP plates and screws with wounds debridement. The same has been revealed in the wound certificate so also averment made in the claim petition. The claimant – appellant spent Rs.50,000/- towards medical expenses. The appellant was working as a Head Constable in Yelahanka Police Station and earning more than a sum of Rs.20,000/- per month at the time of accident. Therefore, on all these grounds the appellant - claimant filed a claim petition before the Tribunal seeking compensation from the respondents.
3. In pursuance of issuance of notice on the respondents, respondent No.1 has appeared through its counsel and filed objections denying the averments made in the claim petition and the accident that occurred on 27.10.2011 at about 11.50 near New Court, Nelamangala, Sondekoppa Road and seeks for dismissal of the appeal.
4. Based on the pleadings of the parties, the Tribunal framed issues and gave its findings after evaluating the evidence of PW1-claimant and the witness of PW.2 – Dr.Roopesh R. G., who treated the injured. So also the documents as per Exs.P.1 to P.33 were got marked on behalf of the claimant to prove his case. On the other hand, on behalf of respondents, two witnesses were examined as RWs.1 and 2 and documentary evidence were marked as Exs.R.1 and R.3.
5. The Tribunal on appreciation and consideration of the oral and documentary evidence has awarded a total compensation in a sum of Rs.65,000/- with interest at 6% per annum from the date of the petition till realization. Being not satisfied with the same, the appellant has preferred this appeal seeking enhancement of compensation.
6. Sri Gurudevprasad K.T., learned counsel for the appellant submits that the evidence of PW.1 said to be the injured has been inconformity with the averment made in the claim petition. But the Tribunal has failed to appreciate the evidence of the claimant in proper perspective manner. He further submits that due to the accident, the claimant has sustained Type 1 compound fracture of both bones of left fore arm. The claimant was admitted to Mathrushree Hospital, Nelamangala and was treated as an inpatient for a period of three days. The appellant was underwent open reduction with internal fixation of DCP plates and screws with wounds debridement. On account of the injuries suffered by the claimant, he lost his salary and the injury is coming in the way of carrying out of his avocation. It is further contended that the appellant is working as Head Constable and earning salary of Rs.28,000/- per month. He has taken earned leave for 74 days for taking treatment. Despite production of documents, the Tribunal has failed to consider the same and also not awarded compensation towards loss of income for the aforesaid treatment period.
7. It is further contended that the Tribunal did not consider that the petitioner was treated as an inpatient at Mathrushree hospital for a period of three days and undergone operation. He contends that the Tribunal has committed an error in not considering the nature of injuries sustained by the claimant and periodical check up. Without considering all these aspects, the Tribunal has awarded meager compensation towards attendant charges, food, diet and nourishment and medical expenses. Further, he submits that the Tribunal has failed to appreciate that the petitioner was working as Head Constable and earning salary of Rs.28,000/- at the time of accident. In view of the accident, the petitioner lost his earned leave facility for a period of 74 days. Inspite of producing the documents, the learned judge failed to consider the same and not awarded any compensation towards loss of income during the period of treatment. He further contends that the Tribunal has failed to consider the evidence of PW.2-doctor who assessed the permanent disability of the petitioner at 26.24% to the limb and 8.75% to the whole body. With these disabilities, he has to suffer throughout his life and there is no free movement in his left hand and awarded only Rs.20,000/- towards discomfort and loss of amenities. On all these grounds, he seeks intervention of this Court of the impugned judgment and award and prays for awarding suitable compensation. Further, the Tribunal has saddled the liability on the part of respondent No.2 being the owner of the offending vehicle but it requires to be saddled on respondent No.1 said to be the insurer as per the permit issued by the concerned authority.
Hence, he prays to allow the appeal by awarding suitable compensation.
8. On the other hand, Sri L. Sreekanta Rao, learned counsel for respondent No.1 submits that the Tribunal has awarded suitable compensation under all the heads and re- appreciation or re-visiting of the oral and documentary evidence is not called for. The Tribunal considering the age, avocation and nature of the injuries, has rightly awarded a sum of Rs.65,000/- as compensation with interest at the rate of 6% p.a., which is just and proper. Further, he submits that the claimant has not produced any specific evidence for seeking enhancement of compensation. Hence, he seeks for dismissal of the appeal by confirming the impugned judgment and award rendered by the Tribunal.
9. Having regard to the contentions taken by the learned counsel for the appellant as well as the counter arguments made by the learned counsel for the insurance company, there is no dispute with regard to the occurrence of the accident on 27.10.2011. It is relevant to refer the evidence of PW.1 said to be the injured in the accident, who was working as Head Constable in Yelahanka Police station and earning salary of Rs.28,000/- at the relevant point of time. There is also no dispute with regard to the injuries sustained and the treatment taken by the injured. He was admitted in Mathrushree Hospital and has taken treatment for 3 days in the hospital i.e. from 27.10.2011 to 29.10.2011. The accident caused due to the rash and negligence driving of the driver of the offending auto-rickshaw. The claimant-appellant registered a complaint in Crime No.289/2011 in Nelamangala Town Police Station. After investigation, the investigating officer laid the charge sheet against the driver of the auto rickshaw which was involved in the accident. It is relevant to refer the medical documents produced by the claimant and the charge sheet registered against the driver of the offending auto rickshaw as per Ex.P.5. PW.2 – Doctor who treated the injured has assessed the disability to the left upper limb at 26.24% and to the whole body at 8.758%. However, the Tribunal has awarded only a sum of Rs.20,000/- towards pain and suffering, which requires to be enhanced as the claimant has suffered pain and agony during the treatment period. Therefore, it is just and proper to enhance compensation under the said head. Hence, the appellant is entitled for a further sum of Rs.10,000/- towards pain and suffering in addition to Rs.20,000/- as awarded by the Tribunal.
10. Insofar as medical expenses is concerned, the Tribunal has awarded a sum of Rs.8,000/- towards medical expenses. The claimant is a Head Constable by profession and a Government Servant. According to the service Rules, he is entitled to claim the medical reimbursement. The same has to be considered by the unit head where he has been working. Therefore, the same does not call for any interference by this Court.
11. Further, it is relevant to re-appreciate the evidence of PW.1 – claimant. The Tribunal has awarded a sum of Rs.20,000/- towards loss of discomfort and amenities of life. In the accident, the claimant has sustained Type 1 compound fracture of both bones of left forearm. Taking the same into consideration, it follows that the claimant has to suffer discomfort and amenities in future life. Therefore, it is just and proper to enhance the compensation to a further sum of Rs.10,000/- in addition to Rs.20,000/- awarded by the Tribunal.
12. Insofar as future medical expenses is concerned, the Tribunal has awarded a sum of Rs.15,000/- under the said head. The injured underwent open reduction with internal fixation of DCP plates and screws with wounds debridement. The doctor has advised him for one more surgery for removal of implants. The cost of the implants deposed by the doctor appears on the higher side. The same, in my opinion, requires to be enhanced for a further sum of Rs.15,000/- towards future medical expenses in addition to the amount awarded by the Tribunal.
13. Further the Tribunal has awarded compensation of Rs.1,000/- towards conveyance, food, diet and nutrition. The petitioner was hospitalised for a period of three days and during the said period, he should be attended by an attendant. It appears that the Tribunal has awarded meager compensation under the said head. In my opinion, the same requires to be enhanced. Hence, the claimant is entitled for a further sum of Rs.1,000/- under the head conveyance charges, food, diet and nutrition in addition to the compensation amount awarded by the Tribunal.
14. In the above terms, the claimant is entitled for an enhanced compensation of Rs.36,000/- in addition to Rs.65,000/- as already awarded by the Tribunal. Further, it is made clear that the said amount shall carry interest at the rate of 6% per annum. Accordingly, I proceed to pass the following:
ORDER (i) The Appeal is allowed in part.
(ii) The impugned judgment and award passed by the Tribunal is modified and the appellant/claimant is entitled for an enhanced compensation of Rs.36,000/- in addition to a sum of Rs.65,000/- awarded by the Tribunal fetching interest at the rate of 6% per annum from the date of petition till realisaiton.
(iii) In view of the judgment rendered by the Hon’ble Supreme Court in Amrit Paul Singh and Another Vs. Tata AIG General Insurance Company Limited and Others reported in AIR 2018 SC 2662, the insurance company is liable to pay the compensation to the claimant and the insurance company is entitled to recover the same from the owner of the offending vehicle. Therefore, the liability has been saddled on respondent No.1 - insurance company.
(iv) The insurance company shall at the first instance deposit the entire awarded compensation before the Tribunal inclusive of the enhanced amount with interest at the rate of 6% per annum and thereafter to recover the same from the owner of the offending vehicle.
(v) On deposit of the said compensation amount, the same shall be released in favour of the appellant/claimant.
Office to draw the award accordingly.
Sd/- JUDGE SA