IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.7156 OF 2017 (MV-I) Between:
SRI NAGARAJU @ UDDAPPA S/O ERANNA AGED ABOUT 52 YEARS R/O BASAVANAHALLI, SIRA TALUK 572 137, TUMAKURU DISTRICT.
(BY SRI. V B SIDDARAMAIAH, ADVOCATE) And:
1. THE UNITED INDIA INSURANCE CO. LTD.
1ST FLOOR, RAJA COMPLEX, DR. AMBEDKAR RAOD, SIRA TOWN-572 137 TUMAKURU DISTRICT.
REP. BY ITS BRANCH MANAGER 2. SRI. H.T. ESHWARAIAH S/O THAMMANNA AGED ABOUT 52 YEARS R/O HEMDORE VILLAGE, SIRA TALUK 572 137.
TUMAKURU DISTRICT (BY SRI. R JAYAPRAKASH, ADVOCATE FOR R1 ... APPELLANT … RESPONDENTS NOTICE TO R2 IS DISPENSED WITH V/O DATED 28.11.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:02.06.2017 PASSED IN MVC NO.32/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T., AT SIRA, 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 appeal is listed for admission, with the consent of learned counsel for both parties, the appeal is taken up for final disposal.
2. This appeal is preferred by the appellant against the judgment and award dated 02.06.2017, passed in MVC No.32/2015 by the Senior Civil Judge & Additional MACT, Sira, awarding compensation in a sum of Rs.3,90,000/- In the operative portion of the impugned judgment and award, the tribunal has ordered that the claimant – appellant would be entitled interest at 9% p.a. only on Rs.3,70,000/- as the difference of Rs.20,000/- awarded towards future medical expenses would not carry interest. The appellant herein aggrieved by the compensation awarded by the tribunal on the ground that Rs.40,000/- awarded towards pain and sufferings is found to be inadequate and so also the Tribunal has assessed the income of the injured in a sum of Rs.7,000/-
p.m. is also on the lower side. Therefore, the intervention of this Court is required in this appeal by considering the income of the deceased at Rs.12,000/- p.m. instead of Rs.7,000/- assessed by the tribunal. Hence, he prays for enhancement by awarding suitable compensation.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 02.11.2014, at about 1.00 p.m., when the claimant was proceeding on his motor cycle bearing registration No.KA-51-L-4320 along with one pillion rider by name Bhutanna, his friend, from Basavanahalli to Bhuthappa Temple, to perform pooja and when they reached near Kamagondanahalli village, the driver of one Luggage Auto bearing registration No.KA-06-C-3741, drove in a rash and negligent manner and dashed to the front side of the claimant’s vehicle. Due to the impact, the claimant and his friend fell down along with the motor cycle. As a result of which, the claimant sustained grievous and bleeding injuries all over the body. Immediately, he was shifted to Pattanayakanahalli Primary Health Centre and from there, he was shifted to Government Hospital, Sira, and then Aditya Hospital, Tumakuru, and then to Sanjeevini Hospital, Bengaluru and then to ESIC Medical College and Hospital, Bengaluru, in order to provide better treatment to the injured. The injured was admitted as an inpatient and also took treatment as outpatient for a period of three months. The claimant – Nagaraju @ Uddappa was doing Animal Husbandry and so also agricultural work and was earning Rs.12,000/-
p.m. The entire family members were depending upon the claimant’s income to eke out their livelihood and the claimant was contributing his entire income for maintaining his family. Due to the injuries sustained by him in the road traffic accident, the appellant herein has lost his earning capacity. Therefore, he cannot do any work or discharge his duties as he was doing earlier. Respondent Nos.1 and 2 are liable to pay the compensation as the injured has suffered injuries and sustained permanent disability to the whole body. Therefore, the appellant - claimant filed a claim petition before the tribunal seeking compensation from the respondents.
4. In pursuance of issuance of notice on the respondents, respondent No.1 said to be owner of the vehicle in question has put his appearance and denied the entire averments made in the claim petition. He also contended that the offending vehicle was insured with respondent No.2 therein and if any compensation is awarded, respondent No.2 would be liable to pay the same. However, respondent No.2 said to be the insurer entered appearance through its counsel and filed written statement by denying the entire averments made in the claim petition and contended that the claimant – appellant had colluded with the jurisdictional police and registered a false case and denied the case of the claimant – petitioner that the Luggage Auto hit his motor cycle. Due to the negligent driving on the part of the offending vehicle, the injured sustained injuries as has been reflected in the wound certificate and also having subjected to X-rays.
5. Based on the pleadings of the parties, the tribunal framed issues and gave its finding based on the evidence of PW1-claimant and PW.2 – the doctor, who treated the injured, so also the documents marked as per Exs.P.1 to P.13, which were marked on behalf of the claimant to prove his case. On the other hand, the respondents did not come forward to adduce either oral or documentary evidence. Subsequently, the tribunal on evaluation of the oral evidence and documentary evidence put forth by P.W.1 and also documentary evidence i.e. Exs.P.1 to P.13, has awarded a total compensation in a sum of Rs.3,90,000/- with interest at 9% p.a. only on Rs.3,70,000/- from the date of the petition till its deposit. The appellant has preferred this appeal being not satisfied with the amount of compensation awarded by the tribunal, which is inadequate, as the tribunal has failed to consider the income of the deceased in a sum of Rs.12,000/- p.m.
6. Learned counsel for the appellant has taken me through the evidence of PW1, said to be the injured and so also the relevant documents like, Ex.P.4 – seizure mahazar, Ex.P.7 – wound certificate, Ex.P.5 – spot mahazar and Ex.P.13 – X-ray. P.W.1 has stated in his evidence reiterating the averments made in the claim petition seeking compensation on account of the injuries suffered by him in the road traffic accident. He contends that the tribunal has committed an error in not considering the nature of grievous injuries and also the period of hospitalization in order to take better treatment. The tribunal has also not considered the inconvenience caused to the injured for having sustained injuries. Therefore, in this appeal, the compensation requires to be enhanced appropriately. The income of the injured has been erroneously assessed at Rs.7,000/- p.m., by considering the avocation of the injured namely, Animal Husbandry and agricultural work, wherein while actually he was earning Rs.12,000/- p.m. It is further contended that the tribunal has not granted any compensation towards laid up period and hospitalization. On all these grounds, he seeks intervention of this Court of the impugned judgment and award and prays for awarding suitable compensation.
7. Per contra, learned counsel for respondent No.1 has drawn my attention to the averments made in the claim petition and the evidence of PW.1, said to be the injured and PW.2 – the doctor who treated PW.1. He has also pointed out at Ex.P.7 – wound certificate, Ex.P.13 – X-ray and contended that the tribunal in respect of the injuries caused to PW.1, has considered the evidence of PW1 and PW.2, so also the documents produced at Exs.P.1 to P.13 and awarded compensation which is mentioned in a tabular form at para No.21 of the impugned judgment. The tribunal has assessed the income of the deceased at Rs.7,000/- p.m. and the same is just and proper and therefore, in this appeal, it does not arise for any interference. It is contended that the injured was aged about 50 years at the relevant point of time of the accident and also sustaining injuries. The tribunal has considered the age factor of the injured and so also his avocation i.e., Animal Husbandry and agricultural work. The tribunal has rightly assessed the monthly income at Rs.7,000/- which is just and reasonable. The documents at Ex.P.7 – wound certificate and Exs.P.11 to P.13 show that the injured had fracture of lower 1/3rd of both bones of right forearm and fracture of upper 1/3rd of both bones of right leg. PW.2, being the doctor has deposed that the fractures are mal-united and the injured had pain and difficulty in lifting things in the right hand, walking, squatting, limping and also there is a shortening of right leg to an extent of 1 cm. and weakness in right hand and right leg and deformity in movements and restricted movements of both right hand and right leg. These are all the material considered by the tribunal for awarding compensation. It is found to be firm and reasonable and therefore, in this appeal, it does not require for any interference and seeks to confirm the impugned judgment and award rendered by the tribunal in MVC.No.32/2015.
8. In the back drop of the contentions taken by learned counsel for both parties, it is relevant to state that there is no dispute with regard to the occurrence of the accident on 02.11.2014, at about 10.00 p.m., wherein the claimant said to be the injured was proceeding on his motorcycle along with the pillion rider namely, Bhutanna. The same is reflected in the averments made in the claim petition. The offending luggage Auto which was driven by its driver in rash and negligent manner and with a greater speed and hit on the front side of the vehicle of the injured. As a result, the injured and pillion rider both fell down along with his motorcycle and sustained grievous injuries and bleeding injuries. There is no dispute with regard to the injuries sustained and the treatment taken by the injured. Ex.P.7 is the wound certificate and Exs.P.11 to P.13 are the medical documents for having taken treatment for the injuries sustained by him in the road traffic accident. But PW.2 said to be the doctor who treated the injured has stated that fractures are mal-united and injured has pain and difficulty in lifting things in the right hand, walking, squatting, limping and also there is a shortening of right leg to an extent of 1 cm and weakness in right hand and right leg and deformity in movements and restricted movements of both right hand and right leg. He has also opined that the injured has got disability of 75% to the individual part and 25% to the whole body. It was also not in dispute that the deceased was doing Animal Husbandry and agriculturist and earning Rs.12,000/-
p.m. but the tribunal has assessed his monthly income at Rs.7,000/- which is on the lower side. This is the contention taken by the learned counsel for the appellant during the course of his arguments. The same has been stated supra. Therefore, in this appeal, the same requires intervention by this Court. The petitioner/appellant has filed the claim petition under Section 166 of the IMV Act. It is relevant to note that there are some guidelines from Hon’ble Supreme Court in respect to the assessment of the income according to the avocation of the injured for the year 2014 – 2015 and the same has been adopted by various Courts. In view of the relevance of the judgment of the Sarla Verma’s case, multiplicand is ‘13’, which is rightly chosen by the tribunal. Therefore, it requires that the monthly income of the injured be enhanced by Rs.1,500/- in addition to Rs.7,000/- p.m., assessed by the tribunal. Accordingly, it works out to Rs.3,31,500/- (Rs.8,500/- X 12 x 13 X 25%) as against Rs.2,73,000/- awarded by the tribunal.
9. The tribunal has awarded Rs.40,000/- towards pain and sufferings. But the evidence of PW.2 and so also the wound certificate at Ex.P.7 as well as Exs.P11 to P.13, which pertain to the injuries suffered by the injured in the road traffic accident, reveals that the injured has sustained fracture of lower 1/3rd of both bones of right forearm and fracture of upper 1/3rd of both bones of right leg. He has also undergone one surgery. These are the opinion given by PW.2, the doctor who treated the injured. He has also stated that implant was fixed and future surgery is required to remove the implant. Due to the injuries, the injured has suffered great pain and agony during the treatment and follow-up treatment. The tribunal has awarded only Rs.40,000/- towards pain and sufferings is found to be inadequate. Therefore, it requires to add Rs.30,000/- in addition to Rs.40,000/- in respect of the aforesaid head of compensation. The compensation towards pain and sufferings would be Rs.70,000/-.
10. However, injured has taken treatment for three months and twelve days as an inpatient during hospitalization. Therefore, keeping in view of the enhanced income of the injured at Rs.1,500/- p.m. awarded in addition to Rs.7,000/- as assessed by the tribunal, it requires to be awarded Rs.25,500/- as against Rs.14,000/- as already awarded by the tribunal.
11. The tribunal has awarded loss of future happiness and amenities at Rs.20,000/-. Injured is said to be aged 50 years, at the relevant point of time of the accident and also sustained injuries as indicated at Ex.P.7 – wound certificate. So also the x-ray at Ex.P.13, for the injuries suffered by him aforesaid. The injured was operated and implant was fixed as stated by PW.2. Hence, it requires for consideration and Rs.30,000/- is added to Rs.20,000/- already awarded by the tribunal towards loss of happiness and amenities.
12. The compensation awarded at Rs.23,000/- towards medical expenses and Rs.20,000/- towards future medical expenses is just and proper and it does not require for interference. Hence, the same remain intact.
13. In the above terms, the judgment and award rendered by the Tribunal is modified and enhanced as stated supra. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed-in-part. Consequently, the appellant is entitled to an enhanced compensation of Rs.1,30,000/- with interest at the rate of 9% p.a.
Accordingly, the appellant is entitled to a total compensation of Rs.5,20,000/- as against Rs.3,90,000/- awarded by the Tribunal.
The respondent No.1/Insurance Company is directed to deposit the aforesaid enhanced compensation of Rs.1,30,000/- awarded by this Court along with interest at the rate of 9% p.a. (excluding Rs.20,000/- awarded towards future medical expenses) within a period of four weeks from the date of receipt of a copy of this order before the concerned Tribunal.
The amount in deposit shall be disbursed to the appellant in terms of the award passed by the tribunal on proper identification. Office to draw the decree accordingly.
SD/-
JUDGE nvj