IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.9346 OF 2015 (MV - I) BETWEEN:
SRI.RAJASHEKAR, SON OF SRI.MAHABALESHWARA, NOW AGED ABOUT 34 YEARS, R/AT CARE OF VENKATESHWARA, NO.7, HOUSE NO.466/10, V.V.TENT, HOSKOTE – 562 114.
... APPELLANT (BY SRI. D.MANMOHAN, ADVOCATE) AND:
1. THE MANAGING DIRECTOR, BANGALORE METROPOLITAN TRANSPORT CORPORATION (B.M.T.C.), K.H.ROAD, BENGALURU – 560 027.
2. THE UNITED INDIA INSURANCE CO. LTD., H.P.HUB, D.O.NO.IV, NOS.144 & 145/9, 2ND FLOOR, SOUTH END CIRCLE, SHANTHI TALKIES ROAD, BASAVANAGUDI, BENGALURU – 560 004, REPRESENTED BY ITS MANAGER.
... RESPONDENTS (BY SRI. D.VIJAYA KUMAR, ADVOCATE FOR R1; SRI. M.S.SRIRAM, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.09.2014 PASSED IN MVC NO.2461/2013 ON THE FILE OF THE PRINCIPAL MACT, BENGALURU, 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 The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 19/9/2014 in M.V.C.No.2461/2013 on the file of the Member, Prl. MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained in a road traffic accident. It is stated that on 25-9-2012, when the claimant was travelling in the bus bearing Reg.No.KA-01-F-2382 as passenger, the driver of the said bus drove the same in a high speed with rash and negligent manner and dashed to the sky walk pole. Due to the said impact, the claimant sustained crush injury to nose, fracture of nasal bone and cartilage, fracture of left orbital rim, fracture of frontal bone. Immediately, he was taken to Bowring Hospital, wherein first aid treatment was given to him. Thereafter, he was shifted to Hosmat Hospital, where he was inpatient from 25-9-2012 to 01-10-2012. It is stated that the claimant was working as coolie and was earning Rs.150/- per day.
3. On issuance of notice, respondent-Corporation appeared before the Tribunal and filed its statement of objections denying the claim petition averments. Further, denied the accident having taken place in the manner stated in the claim petition. It is also stated that the alleged accident had not taken place due to rash and negligent driving of the driver of the bus. It is further stated that a sum of Rs.20,000/- was paid on 25-9-2012 to Hosmat Hospital and thereafter Rs.65,150/- was paid towards medical expenses, totally a sum of Rs.85,150/- was paid to the Hosmat Hospital.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-11. No evidence was lead on behalf of the respondents.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.2,85,100/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and Agony 30,000 2. Medical expenses including other expenses 3. Loss of income during the period of inpatient and period of treatment 4. Loss of earning due to disability 12,000 13,500 1,29,600 5. Future medical expenses 1,00,000 Total 2,85,100 While awarding the above compensation, the Tribunal assessed the notional income of the claimant at Rs.4,500/- per month and assessed the whole body disability at 15%. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the material on record including the certified copy of the evidence of PW-2 and medical records.
7. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side when compared to the injuries sustained by the claimant. He further submits that the Tribunal failed to consider the evidence of PW-2-Doctor and assessment of the whole body disability is on the lower side. It is his further submission that the compensation awarded on the head of ‘Pain and Agony’ is also on the lower side. Learned counsel further submits that the Doctor-PW-2 opined that the claimant suffers from whole body disability at 26%, whereas the Tribunal ignoring the evidence of Doctor has assessed the whole body disability at 15%, which requires to be reassessed. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent– Corporation would submit that the compensation awarded by the Tribunal is just compensation, which requires no interference. He further submits that the Tribunal assessed the income of the claimant at Rs.4,500/- per month as stated by the claimant himself in the claim petition. Further he submits that the Tribunal has awarded Rs.1,00,000/- towards ‘future medical expenses’, which is on the higher side. The claimant has not placed on record any material to establish that he has spent an amount of Rs.1,00,000/- as ‘medical expenses’ subsequent to passing of the award on 19-9-2014. Learned counsel further submits that the disability attributed by the Doctor and assessed by the Tribunal would not come in the way of claimant’s avocation and he has not suffered any functional disability. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation. Answer to the said point is in the negative for the following reasons.
10. The accident occurred on 25-9-2012 involving bus bearing Reg.No.KA-01-F-2382 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation on two grounds, one is that the assessment of the whole body disability by the Tribunal is on the lower side and prays for revising the same. The second ground is that the compensation awarded on the head of ‘Pain and Agony’ is on the lower side. The claimant has placed on record Ex.P2-wound certificate. As per the wound certificate, the claimant has sustained the injuries i.e., crush injury to nose, fracture of nasal bone and cartilage, fracture of left orbital rim, fracture of frontal bone. PW-2-Doctor who is admittedly a plastic surgeon has opined that the claimant suffers from whole body disability at 26% which included the disabilities i.e., mastication defect – ability to chew only semisolid and soft food at 10%, Air passage defect – difficulty in breathing from right nostril due to nasal sphincter distoration at 7% and loss of sensation, disfigurement and scarring at 9%. Thus, PW-2-Doctor arrived at total permanent partial disability at 26%. Admittedly, the claimant was working as coolie. The claimant nor the Doctor have not deposed with regard to how the disability affects the work of the claimant. Moreover the disability assessed by PW-2-Doctor is permanent partial disability. Looking to the injuries sustained by the claimant, the same would not affect his function. Thus, he would not suffer any functional disability. As stated above, the PW-2-Doctor is plastic surgeon, his evidence with regard to the disability suffered by the claimant would be doubtful and he is not a competent person to depose evidence regarding fracture of nasal bone and difficulty in breathing. Thus, I am of the view that the Tribunal rightly taken the whole body disability at 15%, which requires no interference. The claimant was inpatient for six days and he has undergone surgery for fixation of nasal bone. The Tribunal, looking to the injuries suffered and treatment taken by the claimant awarded a sum of Rs.30,000/- on the head of ‘Pain and Agony’ which is proper and correct.
The claimant has not made out any ground to enhance the compensation. The judgment and award passed by the Tribunal is just and proper, which needs no interference.
Accordingly, the appeal stands dismissed.
Sd/- JUDGE SMJ