IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 6755/2015 (MV) BETWEEN Sri. Muniswamy S/o Appaiah Aged 58 Years R/A No.77 Behind Govt. High School Varthuru Bengaluru-560 087.
... Appellant (By Sri. Raghavendra E. P., Adv. For Smt. Gayathri E. P., Adv.) AND 1. Branch Manager The IFFCO-Tokio Gen. Ins. Co. Ltd KSCMF, Building 3rd Floor and Block Cunningham Road Bengaluru-560 062.
2. Mr. Akbar Ali S/o Wahab Sab R/a. No.353, 2nd Main 1st Cross, Sulibele Road Swamy Vivekananda Nagar Near Shreyas Hospital Hoskote, Bengaluru-562 114.
... Respondents (By Sri. E. I. Sanmathi, Adv. For Respondent No.1; Respondent No.2 - Served.) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 21.10.2014 passed in MVC No.3344/2012 on the file of the II Additional Small Causes Judge and XXVIII ACMM, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission, this day, the court delivered the following:
JUDGMENT Though this matter is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
2. This appeal is preferred by the appellant/claimant against the judgment and award dated 21.10.2014 passed by the Tribunal in MVC No.3344/2012, seeking enhancement of compensation.
3. The factual matrix of the appeal is as under: It is stated in the claim petition that on 08.11.2011 at about 1.30 p.m. when he was proceeding on his two wheeler bearing Reg.No.KA-53-U-8358 along with his son on Kathamnalluru Cross – Kadugodi road, when he came near Indian Oil Petrol Bunk at Kadugodi road to fill petrol to his vehicle at that time, the driver of a cab bearing Reg.No.KA-53-3741 drove the same at high speed in a rash and negligent manner and dashed against his vehicle from behind, due to which he fell down and sustained injuries. Immediately he was shifted to VIMS Speciality Hospital and provided treatment. In view of the said accident, he had suffered grievous injuries and spent considerable amount towards treatment, nourishment besides suffering loss of earning during medical treatment. Hence, he filed a claim petition before the Tribunal seeking compensation. Prior to the accident, he was hale and healthy and was working as a Head Constable at Kadugodi Police Station and was earning Rs.22,500/- per month.
4. In pursuance of issuance of notice, respondent no.1 - Insurer appeared through counsel and filed its written statement denying all the petition averments including occurrence of the accident, rash and negligent driving of the of the offending car by its driver as the cause for the accident and the injuries sustained by the appellant and treatment taken for those injuries and the alleged disability. But Respondent No.2 – driver of the offending car failed to appear before the Tribunal and was placed exparte. Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, the claimant / appellant got himself examined as PW.1 and examined a witness on his behalf as PW.2 and got marked 19 documents as per Exhibits P1 to P19. No witnesses were examined on behalf of the Insurance Company - Respondent No.1. The Tribunal after hearing the learned counsel for the appellant as well as respondent insurer, and on evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.1,53,250/- with interest @ 6% p.a. from the date of petition till the date of deposit. It is this judgment which is under challenge in this appeal, by urging various grounds.
5. Learned counsel for the appellant contends that the compensation awarded under all the heads by the Tribunal is very meager and particularly, compensation towards ‘Conveyance, nourishment, food and attendant charges’ being awarded by the Tribunal at Rs.4,000/- is very meager due to the fact that he had suffered Open Type IIIB Comminuted fracture of right tibia and was in hospital due to the treatment that was required. After discharge also he was under regular follow-up treatment due to which a considerable amount had been spent towards conveyance, nourishment, food and attendant charges. The learned counsel contends that the Tribunal has lost sight of the said fact and awarded a very meager amount of Rs.4,000/- on the said head which is very much on the lower side and hence, requires enhancement.
It is the further contention of the learned counsel the appellant had undergone closed reduction of internal fixation with Imail nailing and is required to undergo one more surgery for removal of implants. Hence, the compensation of Rs.15,000/- granted towards ‘Future medical expenses’ is also very much inadequate and the same also requires enhancement suitably. Moreover, the Tribunal has not awarded any amount towards ‘loss of amenities’. The appellant being a Head Constable has suffered very much due to the fractures suffered in the accident and prays that he may be granted compensation suitably in respect of ‘Loss of amenities’. On all these grounds, learned counsel for appellant prays for allowing the appeal and enhancing the compensation suitably.
6. Per contra, learned counsel for the first respondent-insurer contends that the accident had not occurred due to the negligence on the part of the driver of the offending car. Whereas the injuries sustained by the appellant were due to his own negligence. He contended that the compensation granted by the Tribunal was exorbitant and that the Insurance Company was not liable to pay compensation to the appellant and hence prayed for dismissal of the appeal.
7. In the background of the contentions taken by learned counsel for the appellant and learned counsel for the respondent – insurer as stated supra, it is relevant to state that there is no dispute with regard to the accident that occurred on 8.11.2011, wherein the driver of the offending car bearing No.KA-53-3741 drove the same in a rash and negligent manner at high speed without observing traffic rules, as a result of which the open type III B Comminuted fracture of right tibia. The claim petition is supported by the oral and documentary evidence such as FIR, Complaint, seizure mahazar, IMV report, wound certificate, Disability Certificate, etc.
8. The appellant has claimed that he was a Head Constable and was earning Rs.22,500/- per month. Having regard to the material on record and contentions put forth by the learned counsel for the appellant, I find that compensation of Rs.4,000/- awarded by the Tribunal towards ‘Conveyance, Nourishment, food ant Attendant charges’ is on the lower side. Hence, I hereby enhance the compensation towards the said head by another Rs.25,000/-, which would meet the ends of justice.
Further, I find that the compensation of Rs.15,000/- granted towards ‘Future medical expenses’ is very much on the lower side due to the fact that he was required to undergo one more surgery for removal of implants and hence requires enhancement. I find that it would be just and proper to enhance the same by another Rs.10,000/-.
Further, I find that the Tribunal was not justified in not granting any compensation towards ‘Loss of amenities’ in view of the fact that the appellant had been put to untold hardship due to the accidental fractures. Hence, an amount of Rs.50,000/- is granted towards ‘Loss of amenities’. However, I find that the compensation granted under all other heads requires no interference.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Thus, in all, the claimant / appellant is entitled to a total compensation of Rs.2,38,250/- as against Rs.1,53,250/- awarded by the tribunal.
10. Accordingly, the appeal is allowed in part.
The impugned judgment and award dated 21.10.2014 passed by the Tribunal in MVC No.3344/2012 is hereby modified. The claimant/appellant is entitled for enhanced compensation of Rs.85,000/- with interest @ 6% p.a. from the date of petition till realisation.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the entire amount shall be released in favour of the appellant on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/- JUDGE KS