IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7th DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL M.F.A. NO.6966 OF 2010 (MV) BETWEEN:
SRI RAMARAM S/O SAMARAMJI, AGED ABOUT 29 YEARS, R/A NO.41, 6TH CROSS, MAGADI ROAD, BANGALORE-560 023. …APPELLANT (BY SMT BHANU H.M., ADV.,) AND:
1. SRI P.M BASAVARAJAIAH S/O MADAIAH, R/A NO.1266, 6TH CROSS, GANAPATHIPURAM, KONANAKUNTE, BANGALORE-560 062.
2. THE NEW INDIA ASSURANCE CO., LTD., NO.40, LAKSHMI COMPLEX, OPP. VANIVILAS HOSPITAL, K.R.ROAD, FORT, BANGALORE. ... RESPONDENTS (BY SRI K.N.SRINIVASA, ADV., FOR R2 R1- NOTICE DISPENSED WITH V/O DT.13.3.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.02.2010 PASSED IN MVC NO.2475/2008 ON THE FILE OF THE III ADDITIONAL JUDGE, 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 present appeal has been preferred by the appellant/claimant assailing the judgment and award passed by the III Additional Judge & MACT, Bengaluru (SCCH-18), (hereinafter referred to as ‘the Tribunal’ for short) in MVC.No.2475/2008 dated 20.02.2010.
2. Though, this appeal is listed for admission, with consent, it has been heard finally.
3. For the purpose of convenience, the parties are referred to as per their ranking in the court below.
4. Brief facts leading to filing of the petition are that, on 11.02.2008 at about 5.15 p.m., petitioner – Ramaram was traveling along with Madharam Patel in Maruthi Van bearing registration No.KA-02-P-2267 on Bangalore-Kanakapura Road and when they came near Hosadoddi Gate, Uttarahalli Hobli, Bangalore, the driver of Lorry bearing registration No.MH-12-R-9538 drove the same with high speed and in a rash and negligent manner and dashed against the said Maruthi Van. As a result of which, the said Van was completely damaged and the petitioner and other inmates of the Van sustained grievous injuries. Immediately, they were shifted to Siddalingappa Hospital and later shifted to D.G.Hospital for further treatment. In that light, the appellant/claimant filed a claim petition seeking for compensation.
5. On service of notice, respondent No.1 remained absent and hence, he was placed exparte and respondent No.2 - Insurance Company appeared through their counsel and filed separate written statement denying the averments made in the petition contending that the offending vehicle has been insured with respondent No.2 - Insurance Company. The issuance of policy in respect of offending vehicle as on the date of accident was in force, but it liability is subject to terms and conditions mentioned therein. It is further contended that the driver of Lorry was not negligent at the time of accident and the accident has taken place due to rash and negligent driving of Maruti Van and as such, he is not liable to be compensated and prayed for dismissal of the petition.
6. On the basis of the above pleadings, the Tribunal has framed the following issues:
1. Whether the petitioners proves that they have sustained injuries in a Motor vehicle accident that was taken place on 11.02.2008 at about 5.15 p.m., near Hosadoddi, Bangalore- Kanakapura Road, Uttarahalli, Bangalore, due to user of Tipper lorry bearing No.MH-12-R- 9538, being driven by its driver in an actionable negligence?
2. Whether the petitioners are entitled for the compensation amount, as prayed for? If so, against whom?
3. What order or award?
7. In order to prove his case, petitioner got examined himself as PW-2 and got marked the documents as Exs.P1 to 13. On behalf of the respondents, no witnesses have been examined and no documents have got marked.
8. After hearing the parties to the lis, the impugned order came to be passed, wherein the Tribunal has awarded compensation of Rs.80,900/-. By assailing the said judgment and award, the present appeal has been preferred.
9. The main contention of Smt Bhanu H.M., learned counsel appearing for the appellant is that the compensation awarded under various heads are on the lower side. She further contended that the appellant has sustained the fracture of right leg and fracture of pelvis and he has got a permanent disability, but this aspect has not been considered by the Tribunal. She further contended that even the compensation awarded under the head loss of amenities and future unhappiness is on the lower side. It is further contended that the Tribunal has not properly considered the income of the appellant/claimant by taking into consideration the year of the accident. On these grounds, she prays for enhancement of compensation.
10. SriK.N.Srinivasa, learned counsel appearing for respondent No.2 – Insurance Company supports the impugned judgment and award passed by the Tribunal and prays for dismissal of the appeal.
11. The accident in question, so also the offending vehicle insured with respondent No.2 – Insurance Company is not in dispute. As could be seen from the record, the Tribunal has taking into consideration the fracture of pelvis and other injuries has awarded the compensation on following heads:
12. It is the specific contention of learned counsel appearing for the appellant/claimant that the income taken by the Tribunal is on the lower side. As could be seen from the award, though it is contended that claimant was working as agriculturist/coolie and was earning Rs.5,000/-, in order to substantiate the said fact claimant has not produced any documents or material, but in the absence of documentary evidence regarding income of the claimant, the Tribunal has taken the notional income at Rs.3,000/- per month. In the normal course, in the absence of documentary evidence with regard to income of the claimant, the Tribunal ought to have taken the notional income at the rate of Rs.4,250/- per month. In that light, if the income is taken at the rate of Rs.4,250/- per month, the appellant/claimant would be entitled to Rs.17,000/- towards loss of income during laid up period. Even as could be seen from the judgment and award, the compensation awarded under the head loss of amenities and future unhappiness is also appears to be on the lower side. In that light, by taking into consideration the injuries sustained, the appellant/claimant is entitled to another sum of Rs.20,000/- under the head loss of amenities and future unhappiness.
13. As could be seen from the records, due to fracture of pelvis, the appellant/claimant was admitted to D.G.Hospital for further treatment, wherein he was inpatient for a period of 8 days and he could not have attended to his duties on account of injuries for a period of 3 to 4 months and during that time, he incurred some expenses. Hence, the appellant/claimant is entitled to another sum of Rs.15,000/- towards attendant charges, diet and traveling expenses. Insofar as the pain and suffering and medical expenses are concerned, the compensation awarded under those heads appears to be just and proper and the same does not call for any interference by this Court.
14. Keeping in view the above facts and circumstances, the appellant/claimant is entitled to an additional compensation of Rs.35,000/- with interest at 6% per annum. Accordingly, I proceed to pass the following ORDER i) The appeal is partly allowed.
ii) The impugned judgment and award passed by the Tribunal in MVC No.2475/2008 is modified as indicated above.
iii) Respondent No.2 – Insurance Company is directed to deposit the compensation of Rs.80,900/- awarded by the Tribunal as well as the additional compensation of Rs.35,000/- awarded by this Court within a period of six months from the date of receipt of certified copy of this order and the same can be released to the claimant.
Registry is directed to draw the decree accordingly.
Sd/- JUDGE PB