IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.3975/2012 (MV) BETWEEN:
SRI. PRADEEP S/O. K.C. YOGENDRA AGED ABOUT 26 YEARS R/O. C/O. NEW PRIYA WINES NEAR SHOBHA HOSPITAL MUDALAPALYA MAIN ROAD PRASHANTH NAGAR BENGALURU-560 079. … APPELLANT (BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE) AND:
1. MANAGER (CLAIMS DIVISION) UNIVERSAL SOMPO GENERAL INSURANCE COMPANY LIMITED K.V.D. TOWERS, 2ND FLOOR OPP. 100 FT ROAD OLD MADRAS ROAD INDIRANAGAR BENGALURU-560 038.
2. SRI. T. RAVI S/O. S. THIPPRUDRAIAH PWD CLASS-I CONTRACTOR T.M. ROAD, AJJAMPURA TARIKERE TALUK CHICKMAGALUR DISTRICT-577 547. ... RESPONDENTS (BY SRI. G. NANDEESH, ADVOCATE FOR R2 SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R1) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.10.2011 PASSED IN MVC.NO.7725/2010 ON THE FILE OF THE IX ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant challenging the judgment and award passed in M.V.C.No.7725 of 2010 dated 03.10.2011 on the file of IX Additional Senior Civil Judge, Small Causes Court, Bengaluru awarding a compensation of Rs.3,77,000/- with interest at 6% per annum from the date of petition till the date of realization.
Brief facts of the case:
2. The factual matrix of the case is that, the claimant on 25.06.2010 at about 11.30 a.m., he was proceeding on the motorcycle as a pillion rider and when they reached near Donikandi, a Tipper lorry bearing registration No.KA-18-A-1569 being driven by its driver came from Thirthahalli to Shimoga side with high speed in rash and negligent manner without following traffic rules and dashed against the motorcycle, as a result, he fell down and sustained grievous injuries.
It is also the case of the claimant that he was working as ‘Cashier’ in the Wine store and was earning Rs.12,000/- per month and as a result of the injuries and permanent disability, he could not continue his work. The insurance company resisted the claim of the claimant disputing the avocation, his income and nature of injuries.
3. In order to substantiate his claim, the claimant examined himself as P.W.1 and got marked the documents Exs.P1 to P22. He also examined the Medical Officer as P.W.2 and the doctor as P.W.3. The respondents have examined two witnesses as R.Ws.1 and 2 and have not chosen to mark any documents. The tribunal, after considering both oral and documentary evidence, awarded a compensation of Rs.3,77,000/- with interest at 6% per annum. Being aggrieved by the judgment and award, the claimant has preferred this appeal challenging the quantum of compensation.
4. Learned counsel for the appellant/claimant reiterating the grounds urged in the memorandum of appeal would contend that the income of the claimant taken by the tribunal is on the lower side, since the accident is of the year 2010. The doctor, who has been examined as P.W.3 has categorically deposed that the claimant has suffered permanent disability to the whole body to the extent of 32% and the tribunal has committed an error in taking the disability to the extent of 20% and hence, it requires modification on all the heads.
5. Per contra, learned counsel for the respondents would contend that the tribunal has considered the evidence of the doctor, who has been examined as P.W.3 and has rightly quantified the disability to the extent of 20% and the tribunal has not committed any error. However, learned counsel submits that with regard to the income of the claimant taken by the tribunal, the same is on the lower side and the same can be reconsidered and no other grounds to interfere with the order of the tribunal.
6. Having considered the arguments of learned counsel for the appellant and also the learned counsel for the respondents, the points that arise for consideration are:
1. Whether the Court below has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
2. What order?
Point Nos.1 and 2 7. The present appeal is filed questioning the quantum of compensation. It is the main contention of the learned counsel for the appellant/claimant that the claimant has suffered the fracture of clavical which is at the neck portion and also to L- 1 to L-5. He was inpatient for a period of 16 days. The court below, after considering the material available on record awarded a sum of Rs.1,00,000/- towards ‘pain and agony’. Having considered the injuries to L-1 to L-5 and fractures, the Court below has taken note of the gravity of the injuries and has rightly awarded a sum of Rs.1,00,000/- towards ‘pain and suffering’ and the same does not require interference of this Court.
8. The tribunal, while awarding compensation towards ‘medical expenses’, even though the bills are produced to the tune of Rs.40,939/-, the same was reduced to Rs.25,000/- on the ground that most of the medical bills are not relevant for consideration and no reason has been assigned, why these bills are not relevant for consideration and the tribunal has only formed its general opinion and did not consider the particular bills. The other observation made in the judgment of the tribunal is that, the final bill has not been produced. Merely because, he has not produced the final bill, the same cannot be a ground to reduce the quantum of medical expenses and the tribunal has committed an error in awarding the medical expenses to the tune of Rs.25,000/- instead of Rs.41,000/-. Hence, Rs.41,000/- is awarded towards ‘medical expenses’ as against Rs.25,000/- awarded by the tribunal.
9. The tribunal while awarding the compensation towards ‘loss of future earning on the basis of the disability’, considered the evidence of the doctor, who has been examined as P.W.3. The doctor, in his evidence has deposed that the claimant has sustained fractures and particularly, he has stated that there is restriction of the spinal flexion extension and lateral flexion at their terminal degrees of movement. The tribunal, while considering the evidence of the doctor, P.W.3 has restricted the disability to 20% and no reason whatsoever has been assigned and the tribunal has lost its sight to the evidence of the doctor, who has stated that the claimant has sustained grievous injuries to L-1 to L-5 and there is restriction of the spinal flexion extension, the disability to the extent of 20% in a case of spinal flexion extension cannot be applied taking into note the disability to limbs. While taking into consideration the evidence of the doctor, the tribunal ought to have considered the nature of injuries and the restriction and the disability taken by the tribunal at 20% is on the lower side and the same is to be taken as 25%. By taking the disability at 25%, the quantum of compensation towards ‘loss of future earning on the basis of the disability’ has to be recalculated. The tribunal has taken the income as Rs.4,500/-. Admittedly, the accident is of the year 2010 and in the absence of any documentary proof, the tribunal ought to have taken the notional income at Rs.5,500/- per month. Hence, taking into consideration the income as Rs.5,500 x 12 x 18 x 25 / 100, the same comes to Rs.2,97,000/- and the same is awarded towards ‘loss of future earning on the basis of the disability’ as against Rs.1,94,400/- awarded by the tribunal.
10. The tribunal was awarded a sum of Rs.12,000/- towards ‘loss of earning during laid up period’. Considering the nature of injuries, the tribunal has failed to take note of the fact that the claimant has suffered fractures and it requires some time for reuniting of fractured bones. Under the circumstances, the tribunal ought to have taken at least five months salary for assessing the compensation towards ‘loss of income during laid up period’. Considering the income as Rs.5,500/- for five months, a sum of Rs.27,500/- is awarded towards ‘loss of income during laid up period’ as against Rs.12,000/- awarded by the tribunal.
11. The tribunal has awarded a sum of Rs.10,000/- towards ‘loss of amenities and future unhappiness’. The claimant is aged about 25 years and the doctor has assessed the disability at 32% to the whole body. Hence, it requires to be modified and the same is enhanced to Rs.35,000/- as against Rs.10,000/- awarded by the tribunal.
12. On the head of ‘conveyance, nourishment and attendant charges’, a sum of Rs.15,000/- is awarded by the tribunal. The claimant was in the hospital at the first instance for a period of 13 days and subsequently for a period of 3 days and in total for a period of 16 days and he took the treatment at Kasturba Hospital at Manipal. Having taken note of the fact that the claimant is a resident of Thirthahalli, the tribunal ought to have awarded a reasonable compensation. Hence, a sum of Rs.25,000/- is awarded as against Rs.15,000/- awarded by the tribunal.
13. The tribunal has awarded a sum of Rs.10,000/- towards ‘future medical expenses’. The claimant has taken conservative treatment and he was not subjected to any surgery. Hence, the amount of Rs.10,000/- awarded is just and reasonable and the same does not require any enhancement.
14. Having taken note of the nature of injuries suffered and the claimant is aged about 25 years, the tribunal has awarded a sum of Rs.10,000/- towards ‘permanent disability’. When the tribunal has taken into consideration the permanent disability, while awarding the compensation towards ‘loss of future earning on the basis of the disability’, the question of awarding a sum of Rs.10,000/- on the said head does not arise. However, taking into consideration the age of the claimant and he has to lead rest of his life with the disability, on the head of ‘loss of marriage prospectus’, a sum of Rs.25,000/- is awarded.
15. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award passed in M.V.C.No.7725 of 2010 dated 03.10.2011 on the file of IX Additional Senior Civil Judge, Small Causes Court, Bengaluru is modified granting a compensation of Rs.5,60,500/- as against Rs.3,77,000/- with interest at the rate of 6% per annum from the date of petition till deposit.
(iii) The respondents are directed to pay the compensation amount with interest within 8 weeks from today.
(iv) The order of the tribunal in respect of apportionment and depositing the compensation amount in fixed deposit shall remain unaltered.
Sd/- JUDGE ST