IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.11702/2012 (MV) BETWEEN:
SRI. S. KUMAR S/O. LATE SHIVA AGED ABOUT 22 YEARS R/AT C/O. N. UMASHANKAR 13TH CROSS, SARAKKI J.P. NAGAR, 1ST PHASE BENGALURU-560 078.
AND ALSO RESIDING AT NO.51, RAMAKRISHNANAGAR BENGALURU-560 078. … APPELLANT (BY MRS. BHUSHANI KUMAR, ADVOCATE) AND:
1. THE MANAGER IFFCO-TOKIO GENERAL INSURANCE CO. LTD. No.44, 2ND FLOOR CRISTU COMPLEX LAVELLE ROAD BENGALURU-560 001.
2. SRI. BHARATH BABU S/O. SRI. GOPALA REDDY No.28/1, DEVARA BASAVANAHALLI MADIWALA ROAD BENGALURU-560 068. ... RESPONDENTS (BY SRI. E.I. SANMATI, ADVOCATE FOR R1 R2 SERVED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.06.2012 PASSED IN MVC.NO.3021/2011 ON THE FILE OF THE 9TH 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 listed for admission and with the consent of learned counsel for the parties, the matter is taken up for final disposal.
2. This appeal is filed challenging the judgment and award passed in M.V.C.No.3021/2011 dated 06.06.2012 on the file of IX Additional Senior Civil Judge, Small Causes Court, at Bengaluru, questioning the quantum of compensation and also fastening the liability on the owner.
Brief facts of the case are as follows:
3. It is the case of the claimant that on 04.05.2011 at about 11.30 p.m., he was riding the motorcycle bearing Registration No.KA-51-Q-9698 on 15th Cross from east to west, near 2-E bus stop, J.P. Nagar 6th Phase. At that time, auto rickshaw bearing Registration No.KA-05-C-4832 which was driven by its driver in rash and negligent manner came from opposite direction on the wrong side and dashed against him and as a result of which, he sustained grievous injuries. It is the case of the claimant that he was working as a Driver of a auto rickshaw and was earning Rs.9,000/- per month and the accident has taken place solely on account of negligent driving of the driver of the auto rickshaw.
4. In pursuance of the claim petition, respondent No.1 being the insurance company appeared through their counsel and filed the written statement denying the averments of the claim petition.
5. The claimant, in order to substantiate his claim, got examined himself as P.W.1 and got marked the documents Exs.P1 to P165 and also examined the Doctor as P.W.2. On the other hand, the respondent No.1 examined himself as R.W.1 and got marked the documents Exs.R1 to R12.
6. The Tribunal considering both oral and documentary evidence, allowed the claim petition granting compensation of Rs.2,99,000/- with interest at 6% per annum fastening the liability on the owner. Hence, the present appeal is filed challenging the quantum of compensation and also fastening the liability on the owner.
7. The learned counsel appearing for the claimant in her argument vehemently contends that the Court below has failed to take note of the nature of injuries sustained by the claimant i.e., compound fracture of shaft of right femur and compound fracture upper third tibia, fibula with communition and has only awarded Rs.22,000/- on the head pain and suffering. The claimant was hospitalized for a period of 26 days and he was subjected to surgery. She would further contend that the tribunal has taken the income of the claimant as only Rs.3,000/- per month and in all the heads, the Tribunal awarded meager compensation and hence, it requires interference of this Court.
8. Learned counsel for the claimant would also contend that with regard to fastening the liability, the Tribunal committed an error in fastening the liability on the owner of the vehicle, instead of the insurance company. Hence, it requires interference of this Court.
9. Per contra, learned counsel appearing for the respondents would contend that the Tribunal has considered both oral and documentary evidence available on record and also the evidence of the Doctor and has rightly assessed the compensation on all the heads which is just and reasonable. The liability is also rightly fastened on the owner and it does not require interference of this Court.
10. Having heard the arguments of learned counsel for the appellant and also the learned counsel for the respondents, the points that arise for consideration of this Court are:
1. Whether the Court below has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
2. Whether the Tribunal has committed an error in fastening the liability on the owner instead of fastening the liability on the insurance company?
3. What order?
Point No.1:
11. It is the case of the claimant that he was having his own Auto Rickshaw bearing Reg.No.KA-05-C-4832 and was driving the same and earning a sum of Rs.9,000/- p.m. and the Tribunal has not considered the same and the compensation awarded is very meager. Having considering the copy of the wound certificate at Ex.P.6 and two discharge summaries at Ex.P.7, it discloses that the claimant has suffered compound fracture of shaft of right femur and compound fracture upper third tibia, fibula with communition and he was an inpatient for a period of 27 days and the Tribunal has not properly considered the nature of injuries while awarding the compensation under the head of pain and sufferings and the compensation of Rs.22,000/- is very meager. Since the accident has taken place in the year 2011, it is appropriate to award a compensation of Rs.40,000/- under the head of pain and sufferings.
12. The Tribunal has awarded a sum of Rs.2,05,500/- towards medical expenses and the same is based on documentary evidence available on records and it does not requires any interference of this Court.
13. The Tribunal has awarded a sum of Rs.32,400/- towards loss of income due to disability. While awarding compensation under this head, the Tribunal has observed that the Doctor, who has been examined before the Court assessed the disability at 15% of permanent physical disability and 8% to the whole body but, the Tribunal has considered 5% disability to the whole body. Having considered the nature of injuries and multiple fractures, when the Doctor has deposed 15% of permanent physical disability and 8% to the whole body, the 5% disability to whole body taken by the Tribunal is on the lesser side. Hence, it is appropriate to take the disability as 12% and calculate the income under this head. The Tribunal has taken income of the claimant at Rs.3,000/- p.m. which is on the lesser side. Since the accident is of the year 2011 and considering the notional income in the absence of documents with regard to income, the Tribunal ought to have taken Rs.6,000/- p.m. Considering the medical evidence of the Doctor and income of the claimant, it is appropriate to modify the same. Accordingly, a sum of Rs.1,68,480/- (6500 x 12 x 18 x 12/100) is awarded as against Rs.32,400/- awarded by the Tribunal.
14. The Tribunal has awarded an amount of Rs.2,600/- towards loss of income during laid up period. The claimant has suffered compound fracture upper third tibia, fibula with communition which requires minimum three to four months for uniting of fractures and therefore, he requires bed rest for another two months. When such being the case, the Tribunal did not apply its mind and hence, it is appropriate to award loss of income during laid up period for a period of five months and award a sum of Rs.32,500/- (6,500 x 5) as against Rs.2,600/-.
15. The Tribunal has awarded a sum of Rs.1,300/- towards attendant charges. The claimant has taken treatment as an inpatient for a period of 26 days and having taken note of the same, the compensation awarded by the Tribunal is on the lesser side. Hence, it is appropriate to award a sum of Rs.15,000/- towards attendant charges as against Rs.1,300/-.
16. The Tribunal has awarded a sum of Rs.25,000/- towards future medical expenses and hence, it does not requires any interference of this Court.
17. The Tribunal has not awarded any compensation towards loss of amenities. Considering the age of the claimant i.e., 21 years as on the date of accident and he has to lead his rest of life with 12% disability, it is appropriate to award a sum of Rs.25,000/- towards loss of amenities.
Point No.2:-
18. The other contention of the learned counsel for the claimant is that the Tribunal has fastened the liability erroneously on the owner on the ground that no valid and effective driving license was produced as on the date of accident.
In view of the recent judgment of the Hon’ble Apex Court in Pappu’s case, this Court can direct the insurance company to pay the compensation and recover the same from the insured.
19. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award of the tribunal in M.V.C.No.3021 of 2011 dated 06.06.2012 on the file of the IX Addl. Senior Civil Judge, Small Causes Court, Bengaluru, is modified granting the compensation of Rs.5,11,480/- as against Rs.2,99,000/- with interest at 8% per annum from the date of petition till the date of realization.
(iii) The insurance company is directed to pay the amount and recover the same from the insurance company.
(iv) The insurance company is directed to deposit the amount within eight weeks from today.
(v) Registry to send the records to the Court below forthwith.
Sd/- JUDGE ST