IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.2330/2016 (MV) C/W.
MISCELLANEOUS FIRST APPEAL NO.9412/2015 (MV) M.F.A. No. 2330/2016 BETWEEN SRI PADAMA REDDY S/O. VENKATAIAH, AGED 32 YEARS R/AT NO.152 KODIGEHALLI KAIVARA TEMPLE ROAD MAGADI MAIN ROAD, BANGALORE - 560 092 (BY SRI P. SHIVAKUMAR, ADVOCATE) AND ... APPELLANT 1. THE ORIENTAL INSURANCE COMPANY LTD NO.44/45 LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE - 560 001 REPRESENTED BY ITS REGIONAL MANAGER 2. M/S PLUS TRANSPORT NO.209 PAXAL TOWER II FLOOR SKR ROAD OPP. VANIVILAS HOSPITAL BANGALORE-560 002 ... RESPONDENTS (BY SRI A. RAVISHANKAR, ADVOCATE FOR R1; SRI RAGHU R., ADVOCATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.10.2015 PASSED IN MVC NO.2982/2014 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND XXVII ACMM, BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.9412/2015 BETWEEN THE ORIENTAL INSURANCE COMPANY LTD NO.44/45, LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE -560 001 REPRESENTED BY ITS REGIONAL MANAGER ... APPELLANT (BY SRI A RAVISHANKAR, ADVOCATE) AND 1. SRI PADAMA REDDY AGED 33 YEARS S/O SRI VENKATAIAH R/O DOOR NO.152 KODIGEHALLI KAIVARA TEMPLE ROAD BANGLAORE-560 092 2. M/S PLUS TRANSPORT NO.209, PAXAL TOWER II FLOOR, SKR ROAD OPP.VANIVILAS HOSPITAL BANGALORE-560 002 ... RESPONDENTS (BY SRI P. SHIVAKUMAR, ADVOCATE FOR R1; SRI RAGHU R., ADVOCATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.10.2015 PASSED IN MVC NO.2982/2014 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND XXVII ACMM, MACT, BENGALURU, AWARDING COMPENSATION OF RS.14,52,445/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL COMPLETE REALIZATION.
THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T These two appeals are respectively by the claimant and the Insurer directed against the judgment and award dated 16.10.2015 passed in MVC No.2982/2014 on the file of the Motor Accident Claims Tribunal, Bangalore (SCCH-11) (for short ‘the Tribunal’), wherein the Tribunal has awarded compensation of Rs.14,52,445/- with interest at 6% per annum from the date of petition till realization.
2. The factual matrix of the case is as under:
The appellant-claimant filed a petition before the Tribunal claiming compensation on account of injuries sustained by him in a road traffic accident that occurred on 08.06.2014 at about 5:45 p.m., when he along with another was proceeding in a motor cycle bearing No.KA-04/HM-5458 from Yelahanka towards Rajankunte side, due to rash and negligent driving by the driver of lorry bearing No.KA-50-676. It was his further case that he was admitted in Apurva Hospital, Yelahanka, Bangalore as inpatient, X-rays were taken, fractures were confirmed and after discharge he also undergone follow up treatment and spent Rs.3,00,000/- towards treatment and other connected expenses. He contended that due to the accidental injuries he has suffered mental shock, agony, pain and sufferings, disappointment, anguish, loss of physical fitness and he is unable to enjoy amenities in life and also not in a position to carry out his work. The jurisdictional police have registered the case against the driver of offending vehicle in Cr.No.103/2014 for the offences punishable under Sections 279 and 337 of IPC.
3. In pursuance of notice on respondents, the respondents filed objections statement denying the contents of the claim petition and contended that the accident has taken place due to rash and negligent driving by the rider of motor cycle in which the claimant was proceeding. The appellant-Insurance Company also contended that the petition is liable to be dismissed for non-joinder of necessary parties.
4. Based upon the pleadings of the parties, issues were framed by the Tribunal, given findings by assigning reasons, keeping in view the oral and documentary evidence adduced and produced on both the sides and allowed the petition in part. Being aggrieved by the same, the claimant and the insurer are before this Court seeking alleging various grounds.
5. Learned counsel for the appellant-claimant in MFA No.2330/2016 contended that the compensation awarded by the Tribunal is on the lower side, which is required to be enhanced reasonably. Further the Tribunal committed a grave error in not granting any compensation towards future medical expenses though the doctor has opined that the claimant needs corrective surgery in future. He further contended that the claimant was working a Glass Fitter and earning Rs.10,000/- per month, but the Tribunal assessed only Rs.6,000/- per month. All these grounds are taken by the claimant for seeking enhancement of compensation.
6. Per contra, the learned counsel namely A. Ravishankar in MFA No.9412/2015 submits that the Tribunal committed an error to holding 80% disability by considering the evidence of PWs.3 and 4, though the Doctor has assessed 27%. He contended that admittedly the Tribunal assessed the income of the claimant at Rs.4,000/-, but committed an error in adding 50% to it towards future prospects, which is bad in law. He further contended that there are clear admission of PW.2 – Dr. Mandeep to the effect that the injuries mentioned in his evidence, by way of affidavit are not forthcoming in the Wound Certificate and that the claimant has not sustained any injuries to the left elbow and shoulder but the Doctor has assessed the disability to the left shoulder. The Doctor further admits that the muscle strength calculation is at 56.27% to the right shoulder when there is disability to the left shoulder. There is no basis for his assessment of limb disability at 50% which ought to have been considered by the Tribunal to hold that of PW2 is unreliable. Therefore, he submits that intervention is required in these appeals. All these grounds are urged by him for seeking for setting aside of the impugned judgment and award passed by the Tribunal.
7. I have heard the learned counsel for the parties and gone through the material available on record. It is not in dispute that the claimant met with an accident on 08.06.2014 and as per the Discharge Summary he sustained injuries to head and right elbow, degloving injury to right forearm and elbow and said injuries are grievous in nature. The age and avocation of the claimant and the year of accident is taken into consideration, the income assessed by the Tribunal at Rs.4,000/- is on the lower side. Further the addition of 50% to it towards future prospects is also not just and proper. Therefore in the absence of proof of income, the accident being of the year 2014, keeping in view the settled norms, the income is to be held at Rs.9,000/- per month to meet the ends of justice. Further, in so far as disability taken by the Tribunal at 80% is concerned, it also requires intervention. As per the Doctor’s evidence, there is restriction movement of 45.5% under the head of arm component. He has assessed separate disability for the activities of claimant. He assessed arm component disability at 54% and total hand component at 38% and upper limb disability at 80% and whole body disability at 27%. Even the doctor has considered the restriction on the regular activities of the claimant he assessed the disability at 27% to the whole body which is just and proper. Accordingly the compensation towards loss of future income due to disability works out as under:
Rs.9,000/- x 12 x 17 x 27% = Rs.4,95,720/-
8. Accordingly the appellant-claimant is entitled to Rs.4,95,720/- towards loss of income due to disability as against Rs.Rs.9,79,200/-.
9. Further, the claimant is entitled to Rs.27,000/- (Rs.9,000/- x 3 months) towards loss of income during laid up period as against Rs.15,000/- awarded by the Tribunal.
10. As per the evidence of Doctor, the claimant needs treatment in future, hence, a sum of Rs.50,000/- is awarded towards future medical expenses.
11. However, the compensation awarded by the Tribunal towards medical expenses, loss of amenities in life, pain and agony and towards food, nourishment and conveyance is just and proper and does not call for any intervention by this Court.
12. In all, the claimant is entitled to Rs.10,30,956/- with interest at 6% per annum from the date of petition till realization (excluding interest for the future medical expenses) as against Rs.14,52,445/- awarded by the Tribunal. The appellant Insurance Company is directed to deposit the entire balance amount within a period four weeks from the date of receipt of a copy of this judgment.
13. Accordingly, both the appeals are allowed in part.
The impugned judgment and award passed by the Tribunal on 16.10.2015 in MVC No.2982/2014 is hereby modified as above.
The amount in deposit, if any, in M.F.A. No.9412/2015* shall be transmitted to the Tribunal forthwith along with LCR.
* Corrected vide chamber order dated 01.07.2019 Sbs* SD/- JUDGE