IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A.No.1426 OF 2010 (MV) Between:
Sri Maruthi Shetty S/o Ganapayya Shetty Aged about 44 years R/o Ferry Road, Kundapura …Appellant (By Sri K.Chandranath Ariga, Advocate) And:
1. Sri Ramakrishna K Shetty Aged about 43 years R/o Gandhi Nagar, Post Heble Jamiaabad Batkal, U.K.District 2. The New India Assurance Company Limited Pushpa Building, Main Road Kundapura …Respondents (By Sri P.B.Raju, Adv. for R2 & R1-served) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 30.09.2009 passed in MVC No.1231/2003 on the file of the Presiding Officer, Fast Track Court, Kundapura, 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 directed against the judgment and award passed by the learned Member, Fast Track Court & MACT, Kundapura, on 30.09.2009 in MVC No.1231/2003 filed by appellant herein, which came to be allowed in part and the claimant was awarded with a compensation of Rs.1,53,600/- together with interest @ 6% per annum on Rs.90,840/- from the date of petition, till realization from respondent No.1-owner.
2. In order to avoid confusion and overlapping, the parties, hereinafter are referred in accordance to their respective rankings held before the Tribunal.
3. The incident that gave rise to initiate proceedings before the Tribunal is said to be an accident occurred on 31.08.2003 at about 09.00 pm, the petitioner was traveling as a pillion rider in Bajaj M-80 bearing Reg.No.KA-30/E-6308 from Heble towards Herthar side on Herthar road, by that time, near Herthar Pandu’s house, the rider of the said vehicle drove the same in rash and negligent manner and lost control over the same and dashed to road side Gatara, as a result, the petitioner fell down and sustained serious injuries as under:
Swelling and deformity over the distal part of the right thigh, X-ray right femur with knee supra condylar fracture right femur and as such, he sought compensation of Rs.6,00,000/-. However, the learned Member awarded a compensation of Rs.1,53,600/-. Being not satisfied with the quantum of compensation, the petitioner is before this Court.
4. In the circumstances, two witnesses were examined as PW-1 and PW-2 i.e., the petitioner as PW-1 and Dr.S.Adyanthaiah as PW-2 and got marked the documents as per Ex.P.1 to P.75. The Tribunal has awarded compensation as under:
a) Pain and suffering Rs.30,000.00 b) Medical Expenses Rs.26,359.00 c) Special Diet, Nursing & Attendant charges d) Loss of Income during treatment period e) Loss of future income due to disability Rs.2,400.00 Rs.24,000.00 Rs.53,760.00 f) Future Medical Expenses Rs.9,000.00 g) Loss of Amenities Rs.5,000.00 h) Conveyance charges Rs.3,000.00 Total Rs.1,53,519.00 Rounded to Rs.1,53,600.00 5. Learned counsel Sri K.Chandranath Ariga, for the appellant would submit that the claimant was aged 38 years at the time of accident and had sustained grievous injuries and hospitalized for a period of 16 days and was bedridden for more than 118 days; he was working as small businessman and his monthly income is taken by the Tribunal @ Rs.4,000/- per month and disability is taken at 20% to the particular limb and 8% to the whole body. It is argued that the overall compensation awarded by the Tribunal is on the lower side.
6. The primary defense of the insurer is that the petitioner was the rider of the vehicle and in order to make a claim, he has engineered his own story of being a pillion rider at the time of the accident. In this connection, he relies on the statement at Ex.D.1, wherein it is stated that an agency was appointed by the insurer and it has submitted a report to the effect that the petitioner himself was the rider. In this connection, it is to be noted that the investigation by a third party cannot have authoritative force over the Court, when it has no relevancy and at the same time, yardsticks are not placed before the Court. In the circumstances, I find the defense of the insurer that the petitioner was the rider, fails.
7. Further, it is necessary to make a mention that the Tribunal or the Courts have a primary duty to ensure that in a deserving case, the claimant is entitled for just and fair compensation and the said just compensation does not depend on the premise that it should have been sought for by the claimant. The petitioner has sought for enhancement of compensation. Insofar as the assessment of compensation in case of injury, losses which are attributable to be of pecuniary nature are not only a guiding force. The general aspects including Trauma, Deprival of many of the physical or mental nature, loss of resistance, requirement of additional facilities for daily activities are also to be looked into.
8. In this connection, learned Member granting compensation under the head special diet seems to be very low, which needs to be enhanced by Rs.15,000/- as against Rs.2,400/-. The amount awarded under the head loss of future amenities also seems to be unreasonably low, which needs to be enhanced by Rs.50,000/- as against Rs.5,000/- The amount awarded under the head future medical expenses also seems to be very low, which requires to be enhanced to Rs.15,000/- as against Rs.9,000/-. Accordingly, the claimant is entitled for enhanced compensation of Rs.2,17,200/- as against Rs.1,53,600/- In the result, I find that the learned member erred in under assessing the compensation. Hence, the following:
O R D E R (a) The appeal is allowed in part.
(b) The judgment and award passed by the Fast Track Court and MACT, Kundapura on 30.09.2009 in MVC No.1231/2003 is modified by enhancing the compensation at Rs.2,17,200/- as against Rs.1,53,600/- with interest @ 6% p.a. from the date of petition till the date of realization.
(c) The respondent No.1/owner shall deposit the award amount with interest within 30 days from the date of receipt of copy of this order.
(d) Amount in deposit, if any, shall be transmitted to the Tribunal, for disbursal along with LCR.
Sd/- JUDGE Kmv*