IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H. P. SANDESH M.F.A. NO.11481 OF 2012 (MV) BETWEEN:
SRI SAGAYANATHAN @ SAGAYI SON OF HARIRAJ @ H. RAJ AGED ABOUT 24 YEARS RESIDING AT NO.23 JAYARAJ NAGAR ULSOOR BENGALURU-560 008 ... APPELLANT (BY SRI K.P. BHUVAN ADVOCATE ) AND 1. THE PARTNER M/S DEVI CONSTRUCTIONS NO.1143, HAL 2ND STAGE INDIRANAGAR BENGALURU-560 075.
2. THE NEW INDIA ASSURANCE CO. LTD 2ND FLOOR MAHALAKSHMI CHAMBER M.G. ROAD BENGALURU-560 076 ... RESPONDENTS (BY SRI K. SURYANARAYAN RAO, ADVOCATE FOR R-2, V/O DATED:13.2.14, NOTICE TO R-1 DISPENSED WITH) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 10.08.2012 PASSED IN MVC NO.3293/2011 ON THE FILE OF THE VIII ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL IS COMING ON FOR HEARING THIS DAY THE COURT DELIVERED THE FOLLWING:
J U D G M E N T This miscellaneous first appeal is filed by the appellant challenging the judgment and award dated, 10.08.2012 passed in MVC No.3293/2011 on the file of VIII Additional Judge and Member Addl. M.A.C.T., Court of Small Causes, Bengaluru, questioning the quantum of compensation on the ground that the compensation awarded was very meager.
2. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal to avoid confusion.
3. Factual matrix of the case are that :
On 08.04.2011 at about 10.55 p.m. injured was proceeding as a pillion rider on motor cycle bearing registration No.KA.03.HC.1101 on Old Madras road towards K.R. Puram, during that time near Byappanahalli Metro gate, Ready Mix Lorry bearing registration No.KA.03.D.547 came in a rash and negligent manner and dashed against the motor cycle, due to impact of the said accident he fell down and sustained grievous injuries. It is contended that claimant was working as a mason and earning Rs.8,000/- p.m. and due to permanent disability he is not able to work.
4. In pursuance of the claim petition, on issuance of notice respondent No.1 did not appeared and hence placed exparte. Respondent No.2-Insurance Company appeared through the counsel and filed written statement denying the averments made in the claim petition and contended that the driver was not holding valid and effective driving licence and liability is subject to the terms and conditions of the policy.
5. The claimant in order to substantiate his claim examined himself as P.W.1 and got marked 13 documents, Ex.P.1 to 13 and examined doctor-P.W.2. No evidence has been lead on behalf of the respondents.
6. The Tribunal after considering both oral and documentary evidence , allowed the claim petition in part and granted compensation of Rs.4,87,000/- with interest at 6% p.a. Being not satisfied with the same, the present appeal is filed challenging the quantum of compensation.
7. Learned counsel appearing for the appellant in his argument contended that the Tribunal has committed an error in awarding only Rs.50,000/- towards pain and agony and Rs.30,000/- is awarded towards loss of amenities and unhappiness. Even though doctor deposed that claimant needs another 80,000/- towards future medical expenses, but the Tribunal has awarded only Rs.20,000/-. Tribunal has awarded Rs.1,62,000/- on the head of loss of income during treatment period and towards loss of future earning due to disability by taking the income as Rs.3,000/- and also taken only 25% of disability when doctor has categorically deposed that claimant has suffered pain and there was loss of sensation over skin grafting area and the same has not been considered by the Tribunal. Hence the judgment and award passed by the Tribunal is not just and reasonable. Hence it requires interference of this Court.
8. Per contra, the learned counsel appearing for the respondent in his argument would contend that, Tribunal has awarded compensation under all the heads by taking into consideration the gravity of injuries sustained by the claimant. Hence it requires no interference of this Court.
9. Heard the arguments of both the learned counsel for the parties and in keeping the rival contentions of both the respective counsel, the point that arise for consideration of this Court are:
1. Whether the Court below has committed error in not awarding just and reasonable compensation which requires interference of this Court ?
2. What order?
10. The main contention of the learned counsel for the claimant is that claimant has suffered fractures and the wound certificate which is marked as Ex.P.2 discloses the nature of injuries. He was in patient for a period of 20 days and the same is corroborated in terms of Ex.P.7 discharge summery. The injury sustained by the claimant is Degloving injury to his left leg, dorsum of left foot with anterior tibia artery injury. To substantiate the permanent disability, doctor has been examined as P.W.2 and he has deposed the disability to the tune of 54.7% and he was subjected to surgeries. The doctor further deposed that during the treatment claimant developed infection, which was brought under control there after surgeries were conducted. The Tribunal has committed error in taking only 25% disabilities. The Tribunal has not adopted any method in arriving for taking disability of 25%. When the doctor has deposed disability to an extent of 54.7% which discloses the degloving injury to the left lower limb and also doctor in his evidence has deposed anterior tibial artery injury to left foot. It is also his evidence that he is unable to walk, sit, squat and climb stairs even now the claimant is taking external support for walking and due to loss of ligament there is restriction of movement at ankle joint. It is deposed that he is in need of 80,000/- for future treatment. But it is not supported by any document and said surgery has to be done after 10 years and not now. The said surgery will reduce the pain. Having taken the note of the nature of injuries it is evident that almost left leg is immobilized. The Tribunal fails to take note of nature of injuries and also evidence of doctor. The doctor has assessed disability of 54.7% to the whole body, the permanent disability for whole body and having considered both the medical evidence, photos at Exs.P.8 and P.13 it is evident that claimant is unable to do any nature of work. The Tribunal ought to have taken note of the evidence of P.W.2 for consideration and assessed the disability of 50% to the whole body and it has committed error and hence this Court is considering wound certificate, nature of treatment and also photographs and has taken 50% disability instead of 25%. Considering the year of accident, in the absence of any document to prove the avocation of the claimant, notional income has to be taken for the year of accident 2011. The income is taken at Rs. 6,500/- p.m. Therefore, taking the income at Rs.6,500/- x 12 x 18 with 50% disability, the loss of future income works out to Rs.7,02,000/- as against Rs.1,62,000/-.
11. The doctor in his evidence though deposed that he is in need of one more surgery in the cross examination caterogically admits that the said surgery can be conducted after 10 years not at present. The Tribunal awarded only Rs.20,000/- It is considered that after 10 years the cost of surgery will be more. The tribunal ought to have considered the evidence of the doctor. With regard to future surgery, it is appropriate to award sum of Rs. 80,000/- on the head of future medical expenses. The Tribunal has not awarded any compensation on the head of conveyance, food and nourishment and attendant charges as he was an inpatient for a period of 20 days. Hence it is appropriate to award Rs.20,000/- towards conveyance, food and nourishment and attendant charges. Compensation awarded by the Tribunal towards loss of amenities and unhappiness is only Rs.30,000. Considering his age 24 years and he has to lead rest of his life with permanent disability, it is appropriate to award Rs.50,000/- under the same.
In all claimant is entitled for the following compensation:-
9. In view of the discussions made above, I proceed to pass the following:
ORDER (i) The appeal is partly allowed. The judgment and award of the tribunal is modified and a sum of Rs.11,27,000/- with interest @6% per annum is awarded as against Rs.4,87,000/- awarded by the tribunal.
(ii) Respondent is directed to pay the amount within eight weeks from today.
(iii) Send lower court records forthwith.
Sd/- JUDGE HR