IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5477 OF 2013 (MV) BETWEEN Sri. Sunny K. J.
S/o Varghees Joseph Aged 49 Years R/a. No.31, Sapthagiri Nilaya 19th Main, 36th Cross HBR Layout Kalyan Nagar Bangalore-560 043.
... Appellant (By Sri. K. V. Shyama Prasada, Advocate) AND 1. The General Manager Bajaj Alliance Gen. Ins. Co Ltd., 31, TBR Towers 1st Cross, Mission Road Adj. Jain College J. C. Road, Bangalore-01.
2. Sri. Kondaswamy S/o Shivasubramanian 18, 1st Cross, 2nd Main Lingarajapuram St. Thomos Town Post Bangalore-84.
... Respondents (By Sri. E. I. Sanmathi, Adv For Respondent No.1; Respondent No.2 - Served.) This MFA is filed under section 173(1) of MV Act against the judgment and award dated 17.12.2012 passed in MVC No.1538/2011 on the file of the 19th Additional Small Causes Judge, MACT & 41st ACMM, Bangalore, 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 Though this appeal is listed for admission, with the consent of learned counsel for the appellant and respondents, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant/claimant against the judgment and award dated 17.12.2012 rendered by the MACT, Bangalore in MVC No.1538/2011 seeking enhancement of the compensation.
The factual matrix of the appeal is as under:
3. It is stated in the claim petition that 17.1.2011 at about 7.30 p.m. when the appellant was proceeding in a two wheeler bearing Reg.No.KA-03-EN-3542 on Hennur Main Road and when reached the said road from east to west, the rider of scooter bearing Reg.No.KA-01-EN-5357 drove the same at high speed in a rash and negligent manner and dashed against the motor cycle in which the appellant was travelling. Due to the said impact, the appellant fell down and sustained grievous injuries and the vehicle was also badly damaged. Thereafter, he was shifted to Vijayalakshmi Hospital and Trauma Centre for treatment. He was working as Manager/Insurance agent at Georgeon Pvt. Co.Ltd., Bangalore and earning Rs.20,000/- p.m. Due to the injuries sustained in the accident, the appellant could not attend to his duty and has spent huge amount towards medical expenses, conveyance and nourishment etc. On these grounds, the claim petition was filed before the Tribunal seeking compensation.
4. On service of notice, respondent no.1 entered appearance and filed written statement denying the petition averments. Respondent no.2 remained absent and was placed exparte.
5. Based upon the pleadings, the Tribunal framed the issues. In order to prove the claim, the petitioner were examined as PW.1 and got examined one more witness as PW.3 and got marked Exs.P1 to P23. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding compensation of Rs.80,000/- with interest @ 8% p.a. from the date of petition till realisation. Being not satisfied with the compensation awarded by the Tribunal, the appellant/claimant has preferred this appeal seeking enhancement of compensation, by urging various grounds.
6. Learned counsel for the appellant contends that the Tribunal has erred in not properly assessing the compensation under the head pain and suffering wherein the appellant had suffered grievous injuries and the competent doctor has assessed permanent disability of 36% to the left lower limb. Due to the injuries suffered in the said accident, the appellant has faced tremendous pain and continuous suffering and hence, the compensation needs to be enhanced under the above head. Further, it is contended that the Tribunal ought to have awarded suitable compensation towards discomfort, loss of amenities in life and future unhappiness of the appellant. Further, it is contended that the Tribunal has erred in not awarding any compensation towards future loss of earnings due to disability and future medical expenses. The compensation awarded under the head loss of earnings during the period of treatment is also on lower side and the same needs to be enhanced. On all these grounds, learned counsel for the appellant prays for enhancement of the compensation by allowing the appeal.
7. Counter to the arguments advanced by learned counsel for the appellant, learned counsel for the respondent – insurer contends that the petition itself is not maintainable since the RC owner has not intimated the accident nor furnished vehicular documents and thus, has breached the terms and conditions of the policy. Further he denied that the accident occurred due to the rash and negligent riding by the rider of the scooter, but in fact, the accident was due to the negligence on the part of the petitioner who was riding the motor cycle. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the income of the claimant and awarded just and fair compensation, and the same does not call for any interference and prays for dismissal of the appeal.
8. Keeping in view the arguments advanced by the learned counsel for the appellant and so also learned counsel for the respondent-insurance company stated supra, it is relevant to state that there is no dispute with regard to the injuries sustained by the appellant in a road traffic accident. Appellant who was examined as PW.1, in his evidence has stated that due to rash and negligent riding of the scooter bearing No.KA-01-EN- 5357, he had sustained grievous injuries. Ex.P7 and P8 are the wound certificate and discharge summary issued by Shree Vijayalakshmi Hospital and Trauma Centre. The wound certificate discloses that appellant has sustained minimal disposed fracture of the lateral tibial condyle left, mild haemoathrsis of the left knee joint ligament avulsion and multiple abrasion all over the body. The discharge summary reveals that appellant was admitted in the above hospital from 17.1.2011 and 20.1.2011. Further, Dr.Purushotham, Consultant Orthopaedic Surgeon at Vijayalakshmi Hospital who was examined as PW.3 has stated that appellant has suffered 36% permanent disability to the left lower limb. Ex.P.18 to 20 are the radiological reports, IP record, OPD slip and X-ray.
9. The Tribunal on appreciation of the oral and documentary evidence available on record, has awarded Rs.30,000/- towards pain and suffering. But having regard to the nature of the injuries sustained by the appellant and treatment taken by him and the duration of stay in the hospital, it would be just and proper to award another sum of Rs.20,000/- towards pain and suffering.
10. The appellant in his evidence has stated that at the time of accident, he was working as Manager/Insurance agent and was earning Rs.20,000/-
p.m. and has produced salary certificate as per Ex.P.13 which states that he was earning Rs.10,000/- p.m. But the author of the said document has not been examined. Keeping this in view, the Tribunal has assessed the income of the appellant at Rs.4,000/- p.m. But having regard to the year of accident and the avocation of the appellant, the said income appears to be on lower side and the same is enhanced to Rs.6,500/-.
11. The nature of injuries suffered by the appellant certainly restrained from attending the duties atleast for a period of 3 months. Accordingly, the appellant would be entitled to additional amount of Rs.7,500/- towards loss of income during the period of treatment, as against Rs.12,000/- awarded by the Tribunal.
12. Further, an additional compensation of Rs.5,000/- is awarded towards conveyance, attendant charges and nourishing, keeping in view the nature of injuries sustained by the appellant as against Rs.5,000/- awarded by the Tribunal.
13. PW.3 – Doctor in his evidence has stated that appellant has suffered 36% disability to the left lower limb due to the grievous injuries sustained in the accident. Considering this aspect, the Tribunal has awarded Rs.20,000/- towards discomfort, loss of amenities of life and future happiness which appears to be on lower side. Having regard to the injuries sustained by the appellant which is grievous in nature, the compensation awarded under the said head needs enhancement and accordingly, another sum of Rs.30,000/- is awarded. However, the compensation awarded by the Tribunal under other heads is just and reasonable and does not call for interference.
14. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation Particulars awarded by MACT Compensation by this Court
Thus, in all the claimant is entitled to a sum of Rs.1,42,500/- as against Rs.80,000/- awarded by the Tribunal, and the enhanced compensation would be Rs.62,500/-. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.62,500/- with interest @ 8% p.a. from the date of petition till realisation. The impugned judgment and award rendered by the Tribunal in MVC No.1538/2011 is modified accordingly.
Respondent-insurer shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification.
Office to draw the decree accordingly.
Sd/- JUDGE DKB