IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8347/2012 (MV) BETWEEN:
Sri. Nagesh N.G. S/o. Late Gopalappa, Aged about 33 years, R/at. No.45, 6th Main Road, J.P.Nagar, 3rd Stage, Bengaluru – 560 078. ... APPELLANT (BY Smt. Suguna R.Reddy, Advocate) AND:
1. Sri. B. Basavaraj S/o. Basavaiah, Major in age, R/at No.14/2, 6th Cross, Someshwaranagara, Munireddy Palya, Bengaluru – 560 032.
2. The Manager, IFFCO TOKIO General Company Limited, No.41, 2nd Floor, Christu Complex Bengaluru – 560 001. ... RESPONDENTS (BY Sri. B. Pradeep, Advocate for R2; Service of notice to R1 is dispensed with v/o/d 24.02.2015.) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 26.10.2011 passed in MVC No.3751/2009 on the file of the VIII Additional Judge, Member, MACT, Court of Small Causes, Bengaluru City, partly allowing the claim petition for compensation and seeking enhanced of compensation.
This Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though this Appeal is posted for admission, it is taken up for final disposal, at the request of both the learned counsel.
2. The appellant-claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.3751/2009, whereby a total compensation of Rs.15,000/- was awarded for the injuries sustained by the claimant in a road traffic accident.
3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.
4. It is the case of the claimant that on 12.02.2009, while he was proceeding on a Bajaj Scooter bearing No.KA.01.K.2038 as a pillion rider in between J.P.Nagar and Tilak Nagar, an Auto bearing registration No.KA.04.A.8920J came from behind and dashed the said scooter in front of Star Tailoring Material Shop, due to the such impact, he fell down and sustained injuries.
5. Before the Tribunal the appellant got himself examined as PW-1 and another witness as PW-2 and got marked Ex.P1 to Ex.P17. The Tribunal after considering the evidence and material on record, awarded a compensation of Rs.15,000/- with interest at 6% p.a. from the date of the petition till the date of deposit. Respondent Nos.1 and 2 were jointly and severally held liable to pay the compensation.
6. Assailing the aforesaid award passed by the Tribunal, learned counsel for the appellant submitted that the compensation awarded for the injuries sustained by the appellant is too meager. As per Ex.P6-wound certificate, the appellant had sustained fracture of right upper limb and fracture of lower 1/3rd radius. It is further submitted that as per 22 medical bills, which were marked as Ex.P8, he has incurred medical expenses of Rs.23,170/-. Further, it is submitted that in view of the fracture sustained by the appellant, the compensation awarded under the heads of pain and suffering, loss of income during laid up period, conveyance, food and nourishment and attendant charges is on the lower side. Accordingly, the appellant seeks enhancement of compensation awarded by the Tribunal.
7. Per contra, learned counsel appearing for respondent No.2-Insurance Company disputed the medical bills produced by the appellant and contends that except the names of the medicine, there is nothing to show that the appellant was advised to take such medicines. He has further submitted that the appellant has not produced any OPD slips for having taken treatment at Victoria Hospital and the prescription produced by him does not reflect as to when that medicines were given. He submits that the Tribunal having rightly examined the relevant medical bills has come to the conclusion that in order to claim the compensation, the claimant might have got placed the medical bills. Further it is submitted that the compensation awarded in the present case is just and proper and therefore, the judgment and order passed by the tribunal does not call for any interference and accordingly seeks to dismiss the appeal.
8. It is the case of the appellant/claimant that he met with an accident on 12.02.2009 while he was proceeding on a Bajaj Scooter bearing No.KA.01.K.2038 as a pillion rider. As a result of the accident, he sustained fracture of right upper limb and fracture of lower 1/3rd radius. Occurrence of the accident involving the vehicle in question and issuance of policy in respect of the said vehicle is not disputed. As per the opinion of the doctor, the injuries sustained by the appellant are grievous in nature. According to Ex.P6-wound certificate, the claimant had sustained fracture of lower and both bones® forearm with a total displacement, which are described as grievous injuries. The said wound certificate has not been seriously disputed by the learned counsel for respondent No.2. The tribunal has also observed that the claimant has sustained fracture of lower 1/3rd radius. Considering the nature of the injuries sustained by the appellant/claimant, the tribunal has awarded compensation of Rs.5,000/- under the head of pain and agony is on the lower side. The same is enhanced to Rs.30,000/-. Further, it is the case of the claimant that due to the accident, there was loss of income during laid up period. The tribunal has awarded a sum of Rs.5,000/- towards loss of income during laid up period and awarded a sum of Rs.5,000/- towards conveyance, food and nourishment and attendant charges, which is just and reasonable. However, even though the medical bills are disputed, the claimant has sustained fracture and he might have incurred some expenses towards his treatment. The same has not been considered by the Tribunal and no compensation is awarded for the treatment and the medical expenses. Hence, a sum of Rs.10,000/- is awarded. Hence, I am of the view that the total compensation of Rs.15,000/- awarded by the tribunal is not just and proper. The same is enhanced to Rs.50,000/-. Accordingly, I pass the following:
ORDER The appeal is partly allowed.
The judgment and award dated 26.10.2011 passed in MVC No.3751/2009 on the file of Court of VIII Additional Judge, Member, MACT, Court of Small Causes, Bengaluru City is hereby modified.
The appellant/claimant shall be awarded a compensation of Rs.50,000/- as against Rs.15,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till its deposit.
Respondent No.2-Insurance Company shall deposit the compensation amount within a period of four weeks from the date of receipt of a copy of this order.
Sd/- JUDGE KTY