IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.NO.6325/2011 (MV) BETWEEN:
SRI NAGARAJAPPA S/O NARASAPPA AGED ABOUT 51 YEARS R/O LAKSHMIDEVEPURA VILLAGE TUBIGERE HOBLI DODDABALLAPURA TQ., BENGALURU RURAL DISTRICT-84 ..APPELLANT (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND:
1. SRIAYANASWAMY Y N YANAGUNTA VILLAGE HASIGALA POST HOSAKOTE TALUK BENGALURU RURAL DIST.
BY ITS MANAGER – 591187.
2. M/S.UNITED INDIA INSURANCE CO. LTD. NO.484, SADHU CHINNAMMA BLDG.
2ND FLOOR, KUMBAR STREET CROSS OPP:SYNDICATE BANK, K R PURA BENGALURU-560 036.
..RESPONDENTS (BY SRI T MOHAN KUMAR, ADVOCATE FOR R2 NOTICE TO R1 DISPENSED WITH V/O DTD:25.6.2012) *** THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DT 23.2.2011 PASSED IN MVC NO.2321/2010 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is coming on for Admission today. With the consent of both the learned counsel it is taken up for final disposal.
2. This appeal by the appellant - claimant is directed against the impugned judgment and award dated 23.02.2011 passed in MVC No.2321/2010 on the file of the 14th Addl. Judge, MACT, Court of Small Causes, Bengaluru (SCCH-10), (hereinafter referred to as ‘Tribunal’ for short), for enhancement of compensation.
3. The Tribunal by its judgment and award has awarded a compensation in a sum of Rs.2,17,590/- with interest at 8% per annum from the date of petition till date of deposit, as against the claim of the appellant on account of injuries sustained by him, in the road traffic accident.
4. In brief, the facts of the case are:
The appellant claims that he was aged about 50 years as on the date of accident, hale and healthy prior to the accident and he was working as a coolie. Be it as it may, on 19.03.2010 at about 1.30 p.m. in between Channahalli and Haralur Gate, Sulebele – Devanahalli Road, Doddaballapur Taluk, when he was riding his TVS Moped bearing registration No.KA-43 H-4642, a car bearing registration No.KA-02 M-5218 driven by its driver with high speed and in a rash and negligent manner so as to endanger human life, dashed against his TVS moped. Due to the impact, the appellant had sustained grievous injuries. He was immediately shifted to Hospital and thereafter he had taken treatment. It is the further case of the appellant that he spent considerable amount for treatment of the injuries, towards conveyance, nourishing food and attendant charges. In support of his case the appellant has produced Ex.P3 – wound certificate issued by the Doctor. Taking into consideration all these aspects, he had filed a claim petition before the Tribunal under section 166 of M.V. Act, claiming compensation in a sum of Rs.6,00,000/- against the respondents.
5. The said claim petition had come up for consideration before the Tribunal. The Tribunal after appreciating the oral and documentary evidence and other material available on record, has allowed the claim petition in part and awarded compensation of 2,17,590/- with interest at 8% p.a., from the date of petition till the date of deposit. Not being satisfied with the compensation awarded by the Tribunal, the appellant has presented this appeal, for enhancement of compensation.
6. The submission of the learned counsel appearing for the appellant Mr. Sripad V.Shastri, at the outset is that, the Tribunal has erred in not awarding reasonable compensation towards injury, pain and suffering, medical expenses, conveyance, nourishment, etc., loss of earnings during laid up period, loss of amenities and future happiness and loss of future income. To substantiate his contention the learned counsel appearing for the appellant submits that the Tribunal has failed to accept the evidence of the Doctor, who is examined as PW2. It is clear from the evidence of the Doctor that the appellant has sustained degloving injury over right fore arm, muscles exposed, comminuted fracture of femur and other injuries all over the body. The Doctor, who has examined as PW2, assessed the permanent physical functional disability to the extent of 50% in relation to left lower limb and 25% in relation to the whole body. The doctor further stated that the claimant needs one more surgery for bone grafting and exchanging of nails. He has produced Ex.P3-wound certificate. The Tribunal has committed a grave injustice in awarding compensation in a sum of Rs.2,17,590/-, which is too meager, unreasonable and unjust. Therefore, he submits that the impugned judgment and award is liable to be modified by awarding reasonable compensation.
7. Per contra, the learned counsel Mr.T. Mohan Kumar, appearing for the 2nd respondent – Insurance Company, inter alia, contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. It is passed after considering the oral and documentary evidence and interference by this Court is not called for.
8. After considering the submissions made by the learned counsel appearing for the appellant as also respondent – Insurance Company and on perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, occurrence of the accident resulting in the injuries to the claimant is not in dispute. Further, it is not in dispute that, the claimant was aged about 50 years and as on the date of accident, hale and healthy prior to the accident. On account of injuries sustained in the accident he was treated as inpatient in two hospitals. In support of that he has produced Ex.P3-wound certificate and also he has produced other documents to show that he has taken treatment as an out patient. He might have spent reasonable amount towards medical expenses and conveyance, nourishing food and attendant charges. He might have suffered pain and agony during treatment period and endure the same through out his life. On the advice of doctor he might have taken bed rest and follow up treatment. The Tribunal after considering all these aspects and by considering the nature of injuries sustained by the claimant and duration of treatment is justified in awarding compensation of Rs.2,17,590/- with 8% interest per annum.
9. The learned counsel appearing for the appellant submits that the Tribunal has failed to consider the fact that the appellant has sustained disability to the left lower limb at 50% and 25% to the whole body. Further appellant suffering permanent physical disability is not in dispute. It is also not in dispute that on the advice of the doctor the appellant has taken further treatment and bed rest. He has also suffered mental agony, unhappiness in life apart from pain and suffering as a result of road traffic accident. He also contended that all these aspects of the matter have not been considered by the Tribunal while awarding compensation to the appellant.
10. After hearing the learned counsel appearing for the appellant and after going through the entire material available on file, I am of the view that the Tribunal is justified in awarding compensation of Rs.2,17,590/- on account of the grievous injuries sustained by the appellant in the road traffic accident, except failing to take disability to the whole body at 15% when the claimant is claiming 25%.
11. It is not in dispute that the appellant has sustained degloving injury over right fore arm about 7X3 cm. with exposed muscles and vessels; swelling and minor laceration over left fore arm measuring 4X1 cm; compound wound over left thigh measuring 4X4 cm with fractured end of shaft of femur protruding out of wound; lacerated wound over left foot 3X6 cm and severe tenderness in left inguinal region. The Tribunal after critical evaluation of the oral evidence of PW1 and 2 and documentary evidence at Ex.P1 to P14 and also evidence of RW1 & 2 and documents at Ex.R1 to 3 has recorded a finding holding that the appellant has sustained permanent disability to the whole body at 15%. The same is not just and proper considering the nature of injuries and the evidence of the doctor and needs to be increased to 20% as against 25% as claimed by the claimant .
.
12. The Tribunal is justified in awarding the compensation on all other heads. The only modification required is with regard to future loss of income due to disability. The Tribunal has taken the proper income of the claimant as Rs.3,750/- and multiplied it by 15% disability with appropriate multiplier of 13 and arrived at a sum of Rs.87,750. The same is recalculated by taking the income of the claimant at Rs.3,750/- and multiplied it by taking disability at 20%, thus, it is Rs.9,000/- and multiplier adoptable is 13, which works out to Rs.1,17,000/-. The amount awarded under this head is Rs.1,17,000/- instead of Rs.87,750/-. Therefore, the enhancement is in a sum of Rs. 29,250/- ( Rs.1,17,000/- minus Rs.87,750/-). I do not find any justification or good ground to interfere with the well considered judgment passed by the Tribunal nor appellant has made out good case for interference on other aspects of awarding compensation.
13. The Tribunal in its judgment and award held that because of not possessing of fitness certificate, it had saddled and directed to pay the compensation amount by the respondent No.2 – Insurance Company with an option to recover the same from the owner of the offending vehicle. I find the same shall apply in this case also with respect to the enhanced compensation. Thus, the respondent No.2 – Insurance Company is directed to pay the enhanced compensation to the claimant and then to proceed and recover the same against the respondent No.1 – Owner of the offending vehicle.
14. Having regard to the facts and circumstances of the case as stated about, the appeal filed by the appellant is allowed in part.
Draw the award, accordingly.
Sd/- JUDGE VK