IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2210/2014 [MV] BETWEEN:
SRI. RAJASHEKAR ANAGOD S/O KENCHAPPA AGED ABOUT 38 YEARS R/O NO.196 YELAHANKA UPNAGAR “B” SECTOR, NEAR SHARAVATHI HOTEL YELAHANKA BANGALORE- 560 064.
... APPELLANT (BY SRI.CHANDRASHEKAR RODNAVAR, ADV.) AND:
1. BAJAJA ALLIANZ GENERAL INSURANCE CO., GE PLAZA, AIR PORT, YERWADA PUNE-411006 ISSUING OFFICE:
NO.343, 1ST FLOOR, 7TH BLOCK KORAMANGALA LAYOUT BANGALORE-34.
2. SRI. S KHADER BASHA S/O. SABJAN SAB NO.6, BEGUR MAIN ROAD HONGASANDRA, BOMMANAHALLI BANGALORE-560 068.
... RESPONDENTS (BY SRI. H.S. LINGARAJ, ADV. FOR R1 R2- NOTICE D/W V/O DT:23/01/2015) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.08.2013 PASSED IN MVC.NO.8260/2011 ON THE FILE OF THE XX ADDL.SMALL CAUSES JUDGE, MEMBER, MACT & XVIII ADDL. C.M.M., (SCCH-22), BANGALORE, 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 The claimant, not being satisfied with the quantum of compensation awarded under the judgment and award dated 01.08.2013 passed in MVC No.8260/2011 on the file of the Motor Accident Claims Tribunal and Small Causes Judge, Bangalore (hereinafter referred to as 'the Tribunal' for short) is before this Court, in this appeal.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in a road traffic accident. It is stated that on 12.10.2010, while the claimant was proceeding in his two wheeler bearing registration No.KA-50/H- 9628, a Tata Ace vehicle bearing registration No. KA-09/A-6248 driven in a rash and negligent manner, came and dashed against the claimant’s two wheeler. As a result of which, the claimant fell down and sustained grievous injuries. Immediately, the claimant was shifted to Columbia Asia Hospital where he took treatment as inpatient for a period of 12 days. It is stated that he was working as a Station Manager in Clause India Private Limited and earning Rs.35,000/-
p.m. Due to the accidental injuries, he had to take leave for 4 months and 20 days.
3. In pursuance of the notice issued, respondent No.1 appeared before the Tribunal and filed written statement denying the claim petition averments, but admitted issuance of policy in respect of Tata Ace vehicle. Further, it was contended that the accident occurred solely due to the negligence on the part of the claimant and it was denied that the driver of the Tata Ace was holding valid and effective driving licence as on the date of accident.
4. The claimant got himself examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P37. The respondents neither examined any witness nor marked any documents in support of their case.
5. The Tribunal, on appreciating the material placed before it, awarded total compensation of Rs.59,872/-
which was rounded off to Rs.60,000/- on the following heads:
1. Pain and sufferings :: Rs.30,000.00 2. Loss of income during the laid up period :: Rs.10,572.00 3. For attendant charges :: Rs. 1,500.00 4. Food, diet, nourishment and incidental charges :: Rs. 1,800.00 5. Medical expenses :: Rs. 4,000.00 6. Loss of amenities and discomfort :: Rs.10,000.00 7. For conveyance charges :: Rs. 2,000.00 Total Rs.59,872.00 The claimant not being satisfied with the quantum of compensation is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/Insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the compensation awarded by the Tribunal when compared to the injuries suffered by the claimant is on the lower side which requires to be enhanced. Learned counsel submits that the claimant had suffered the following injuries:
1. Fracture of left femur;
2. Fracture of left scapula;
3. Fracture of second rib on left side; and 4. Abrasions over right side of the chest, right elbow and face.
Injury Nos.1 and 2 are grievous in nature and the claimant was inpatient for a period of 12 days on two intervals. Surgery was conducted for the fracture of left femur. P.W.2-doctor has opined that the claimant has suffered 18% whole body disability. The Tribunal has erred in assessing the whole body disability to an extent of 10% without there being any reasons and against the evidence of the doctor. It is his submission that the compensation awarded on the head of attendant charges, food, diet, nourishment and incidental charges, loss of amenities and conveyance are on the lower side which require to be enhanced.
8. Per contra, learned counsel for the respondent/ insurer submits that the compensation awarded by the Tribunal is just compensation which requires no interference. He further submits that the claimant has not suffered any functional disability on the other hand his income has been increased, as admitted by him in his cross-examination. Therefore, the claimant would not be entitled for any compensation on the head of loss of future earning capacity.
9. Upon hearing the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration in this appeal is, whether in the facts and circumstances of the case, the claimant would be entitled for enhanced compensation?
10. Answer to the above question is in the affirmative and the claimant would be entitled to partial enhancement of compensation, for the following reasons:
The accident occurred on 12.10.2010 involving the motorcycle bearing registration No.KA-50/H-9628 and Tata Ace vehicle bearing registration No.KA-09/A-6248 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant has suffered injuries such as fracture of left femur and fracture of left scapula apart from fracture of rib of left side. The doctor-P.W.2 in his evidence has stated that the claimant suffers whole body disability at 18%, but he has not stated about the functional disability suffered by the claimant. On the other hand, claimant in his evidence has admitted that as on the date of his evidence, his salary was increased to Rs.45,000/- p.m. The claimant has stated that he was drawing monthly salary of Rs.35,039/- p.m., and his income has been increased subsequent to the accident. Hence, the claimant would not be entitled for compensation on the head of future loss of earning as there is no loss of income. The claimant has produced Ex.P3-wound certificate and Ex.P33-case sheet, which would indicate the injuries suffered and treatment taken by the claimant. It is not in dispute that the claimant was inpatient for a period of 12 days in two intervals. Looking to the nature of injuries suffered, treatment taken and the evidence of P.W.2-doctor, the compensation awarded by the Tribunal on the heads of attendant charges, food, diet, nourishment and other incidental charges, loss of amenities and discomfort and conveyance charges are on the lower side. Hence, the claimant would be entitled for Rs.10,000/- each on attendant charges and food, diet, nourishment and incidental charges, a sum of Rs.15,000/- in addition to Rs.10,000/- on the head of loss of amenities and a sum of Rs.5,000/- in addition to Rs.2,000/- on the head of conveyance charges. Thus, the claimant would be entitled for the following modified compensation:
1.Pain and suffering :: Rs.30,000.00 2. Loss of income during the laid up period :: Rs.10,572.00 3. Attendant charges :: Rs.10,000.00 4. Food, diet, nourishment and other incidental charges :: Rs.10,000.00 5. Medical expenses :: Rs. 4,000.00 6. Loss of amenities and discomfort :: Rs. 25,000.00 7. Conveyance charges :: Rs. 7,000.00 Total :: Rs. 96,572.00 Thus, the claimant would be entitled for total compensation of Rs.96,572/- as against Rs.60,000/- awarded by the Tribunal with interest at the rate of 6% p.a., from the date of petition till realization.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 01.08.2013 passed in MVC No.8260/2011 on the file of the MACT and Small Causes Judge, Bangalore is modified to the above extent. The claimant is entitled to enhanced compensation of Rs.36,572/- with interest at the rate of 6% p.a., from the date of petition till realization.
Sd/- JUDGE mpk/-* CT:bms