IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.6105 OF 2010 [MV] BETWEEN SRI. M.KRISHNA KUMAR, S/O. MUNISWAMY, AGED ABOUT 34 YEARS, R/AT NO.612, NYANDAHALLI MAIN ROAD, PANTHARAPAALYA, MYSORE ROAD, BANGALORE. ... APPELLANT [BY SRI.D.S. SRIDHAR, ADVOCATE] AND 1. SRI. ASHOK KUMAR JAIN, MATESHWARI CHEMICALS, NO.99, 1ST FLOOR, CHOWDESHWARI NILAYA, S.P. ROAD, BANGALORE.
2. THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GROUND FLOOR, NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, ADGECENT TO JAIN COLLEGE AND BANGALORE EXCHANGE, BANGALORE. ... RESPONDENTS [BY SRI.PRADEEP NAIK, ADVOCATE FOR R1.
SRI. O.MAHESH, ADVOCATE FOR R2] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.03.2010 PASSED IN MVC NO.4180/2008 ON THE FILE OF XX ADDITIONAL JUDGE & XVIII ACMM, 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 filed by the injured/claimant, seeking enhancement of compensation awarded by the Tribunal in MVC No.4180/2008 on the file of Court of MACT., Bengaluru, wherein a total compensation of Rs.49,000/- has been awarded for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel for the appellant and the learned counsel appearing for the respondent/Insurance Company.
3. It is the case of the appellant that on 17.03.2008 at about 10.30 a.m. he was driving the autorickshaw bearing reg. No.KA-02/A-3877 along with a passenger in order to go to Basavanagudi on Mysore Main Road and when he reached at the junction of KAVIKA., he had stopped the autorickshaw in order to take right turn towards left side for going to Byatarayanapura to reach Basavanagudi. At that time, the driver of the car bearing reg. No.KA-01/D-4464 drove the said car in a rash and negligent manner and dashed against the autorickshaw from behind and due to the said impact, the autorickshaw moved ahead and knocked against the KSRTC bus bearing reg. No.KA-01/F-8451, which was coming from the opposite direction. In view of the same, he sustained grievous injuries and shifted to Victoria Hospital, wherein he took treatment as an in-patient.
4. The learned counsel for the appellant would contend that the total compensation awarded is not commensurate with the injuries sustained by the appellant and the disability suffered by him. He would submit that the appellant has sustained comminuted fracture of proximal end and humorous and he took treatment as an in-patient. He would submit that the appellant has suffered permanent disability to an extent of 9% p.a. to the whole body in view of the injuries sustained to his left shoulder and therefore, he submits that the compensation awarded may be enhanced.
Per contra, learned counsel appearing for the Insurance Company submits that the Tribunal has awarded adequate compensation in the facts and circumstances of the case and no enhancement is called for and accordingly, he seeks to dismiss the appeal.
5. The accident in question, involving the offending car bearing reg. No.KA-01/D-4464 and the actionable negligence on the part of the driver of the said car are not in dispute. The said car was insured with the 2nd respondent herein. The Tribunal has awarded a total compensation of Rs.49,000/- under the following heads:
6. Ex.P3 is the copy of the wound certificate. The same goes to show that the appellant has sustained the following injuries:
(1) Lacerated wound over left fore-head 3 x 1 c.m. fresh.
(2) Lacerated wound over left cheek 2 x 0.5 c.m. fresh.
(3) Decreased movement of left upper limb.
7. It is submitted that the appellant sustained comminuted fracture of proximal end and humerous. P.W.2- Ortopaedic Surgeon, Victoria Hospital, who examined the appellant with the history of road traffic accident has deposed that as per X-ray of left shoulder, with humerous upper 4/5th shows mal-united fracture at the neck of the left humerous. He has assessed 3 permanent physical and functional disabilities at 18% to the left shoulder and 9% to the face on left side and 9% to the whole body. The Tribunal has not awarded any separate compensation towards the disability or towards loss of amenities. On the other hand, a total compensation of Rs.10,000/- has been awarded towards pain and suffering.
8. The learned counsel for the 2nd respondent/ Insurance Company would contend that the said disability will not come in the way of earnings of the appellant. He further contended that the compensation of Rs.10,000/- awarded towards medical expenses is also on the higher side since as per the medical bills at Ex.P8, the appellant has not spent more than Rs.215/- towards medical expenses. Considering the nature of the injuries and the disability suffered as assessed by the doctor, I am of the view that a global compensation of Rs.35,000/- may be awarded in addition to the compensation awarded by the Tribunal. Hence, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 20.03.2010 passed in MVC No.4180/2008 by the Member, MACT., XX Additional Judge and XVIII Additional C.M.M., Bengaluru is modified.
The appellant is entitled for a compensation of Rs.35,000/- with interest at 6% p.a. from the date of the petition till the date of deposit, in addition to what has been awarded by the Tribunal.
Sd/- JUDGE.
Ksm*