IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY MFA NO.9427/2012 (MV) BETWEEN SRI RAMESH S S/O SIDDEGANGAIAH AGED ABOUT 31 YEARS R/AT NO.12 DURGAPARAMESHWARI NILAYA APPANAPPA BUILDING THUNGANAGARA MAGADI MAIN ROAD BEDARAHALLI BENGALURU-91 ... APPELLANT (By Sri JAGADISH G. KUMBAR, ADVOCATE) AND 1. KODANDARAMAIAH NO.11, ANJANEYA TEMPLE STREET SESHADRIPURAM BENGALURU-560 020 2. THE UNITED INDIA INSURANCE CO. LTD., BY ITS MANAGER NO.109, SSI AREA (NEXT TO DASASHRAMA) Dr. RAJKUMAR ROAD RAJAJINAGARA V BLOCK BENGALURU-560 010 ... RESPONDENTS (By Sri L. SREEKANTA RAO, ADVOCATE FOR R-2 R1-NOTICE DISPENSED WITH VIDE ORDER DT.24.06.2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:2.5.2012 PASSED IN MVC NO.1965/2011 ON THE FILE OF 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, 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 This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru City, (SCCH-10), (hereinafter for brevity referred to as ‘The Tribunal’, for short), by judgment and award dated 02.05.2012, passed in MVC No.1965/2011.
2. The summary of the case of the claimant in the Tribunal is that on 20.01.2009, at about 2-00 p.m, he had parked his motorcycle bearing registration No.KA-43-E-8981 behind the stationed Lorry on Magadi Main Road at Janapriya Enclave Apartment, Sunkadakatte. At that time, all of a sudden, a driver of Autorickshaw bearing registration No.KA-04-A-3755 came from behind in a rash and negligent manner and dashed against him and to his motorcycle, causing a road traffic accident. Due to the said accident, he (claimant) sustained grievous injuries and was shifted to St. Martha’s Hospital, Bengaluru, wherein, he undertook treatment as an inpatient from 20.01.2009 to 29.01.2009. He sustained fractured injuries to the shaft of right tibia and lacerated wound and simple injuries to different parts of the body. Stating that he has suffered a lot due to the accident, claimant has claimed a compensation of `10,00,000/- from respondent Nos.1 and 2 holding them as jointly and severally liable to pay him in the capacity of owner and insurer of the alleged offending Autorickshaw.
3. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
1. Towards pain and suffering ` 30,000-00 2. Towards loss of amenities on account of permanent disability and future enjoyment of life 3. Towards medical expenses, Conveyance, nourishing food and attendant charges 4. Towards loss of earning during treatment period ` 30,000-00 ` 15,000-00 ` 50,000-00 5. Future medical expenses ` 5,000-00 Total `1,30,000-00 4. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
5. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
6. Heard the arguments from both sides and perused the materials placed before this court.
7. Learned counsel for the appellant/claimant in his arguments submitted that the quantum of compensation awarded by the Tribunal under all heads are very meager and it has not awarded any compensation towards disability. It also awarded a meager compensation towards future medical expenses.
Learned counsel for respondent No.2- Insurance Company in his arguments submitted that the compensation awarded by the Tribunal is just and reasonable. Admittedly, the alleged assessment of disability has not come in the way of avocation of the claimant, as such, there is no functional disability at all. He submitted that the impugned judgment thus does not warrant any interference at the hands of this Court.
8. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent- Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
9. The evidence of the claimant - PW-1 and the Doctor examined by him as PW-2 when considered in the light of the Wound Certificate at Ex.P-10, Discharge summary at Ex.P-11 and also alongwith out patient card with disability calculation report, which is at Ex.P-15, go to show that in the accident in question, the claimant has sustained fracture of shaft of right tibia of right leg, apart from that, he sustained lacerated wound over upperlip right side, lacerated wound over right forehead and multiple abrasions over right leg. Though the Tribunal has awarded a compensation of a sum of `30,000/- towards ‘pain and sufferings’, considering the nature of injuries and more particularly, several simple injuries and fracture of a major bone of the right lower limb, I am of the view that the compensation for a sum of `30,000/- towards ‘pain and sufferings’ deserves an enhancement by a sum of `5,000/-.
10. Towards ‘loss of amenities’ on account of permanent disability and future enjoyment of life, the Tribunal has awarded a sum of `30,000/-. While awarding the same, the Tribunal has considered the fact that even though PW-2, the Doctor, has opined that the claimant was suffering 16% disability when applied to the whole body, the same has not resulted into his functional disability causing any loss to his future income.
The learned counsel for respondent No.2- Insurance Company on these points vehemently submitted that the claimant has not just continued in his permanent employment with the Company where he was working, but, might have secured promotion also in his post.
When there are no documents to show that the claimant has received promotion in his job, the argument of learned counsel for the respondent on that context is not acceptable. However, in the absence of any proof to show that there was any functional disability resulting in loss of his future income, the Tribunal has not awarded any compensation towards loss of future income, but considered the disability while awarding compensation towards ‘loss of amenity and permanent disability’.
11. In the circumstances of the case, I am of the view that, considering the disability alleged by the claimant and the medical evidence, the compensation under the said head deserves an enhancement by a sum of `10,000/-.
12. Even according to the Tribunal, the claimant had taken bed-rest for seven months in two stretches at six months plus one month, Exs.P- 8 and P-9 disclose that the claimant had not drawn salary/allowances during the said period. The Tribunal has also considered the income of the claimant at `11,000/- based on the Salary Certificate at Ex.P-7 produced by the claimant.
Despite noticing by itself that the claimant had taken bed-rest for seven months and he has not drawn salary for the said period, which is at the rate of `11,000/- per month, the Tribunal has awarded compensation of only a sum of `50,000/- towards ‘loss of earning during treatment period’. Thus, difference amount of the same i.e., (`11,000 x 7 months) – `50,000 = `27,000, which the claimant/appellant is entitled to.
13. Towards future medical expenses, the Tribunal has awarded a sum of `5,000/- as compensation. PW-2, the Doctor has deposed that the claimant requires a surgery for removal of the implants instilled him towards which he may incur a cost of `30,000/-. The said evidence of Doctor though has not accompanied with any detailed assessment of the medical expenses still cannot be ignored in totality. At the same time, the Tribunal also should not have confined the said future medical expenses at `5,000/- only. However, considering the circumstances of the case and the evidence of PW-2 - the Doctor, I am of the view that towards the future medical expenses, the claimant/appellant is entitled for an additional compensation of a sum of `20,000/- as an enhancement.
14. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for enhancement of compensation in a sum of `62,000/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 02.05.2012, passed by the learned Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru City, (SCCH-10), in MVC No.1965/2011, is modified to the extent that the compensation awarded at `1,30,000/- is enhanced by a sum of `62,000/-, thus, fixing the total compensation at `1,92,000/- (Rupees One Lakh and ninety two thousand only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
Sd/- JUDGE cp*