IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.SREENIVASE GOWDA M.F.A No. 1567/2010 (MV) BETWEEN:
SRI. YOGESHA, S/O BASAVARAJU, AGED ABOUT 24 YEARS, R/AT 2ND CROSS, LABOUR COLONY, MANDYA CITY.
…APPELLANT (BY SHRI. NEELAKANTAPPA K. PUJAR, ADVOCATE) AND:
1. SRI. BOREGOWDA, S/O CHANNAIAH, AGED ABOUT 54 YEARS, R/AT 5TH CROSS, TAVAREGERE, MANDYA.
2. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., NO. 363, SRI HARI COMPLEX, SEETHAVILAS ROAD, MYSORE 4.
…RESPONDENTS (BY SHRI. O. MAHESH, ADVOCATE FOR R2.
R1 – SERVED.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.05.2009 PASSED IN MVC NO. 117/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM, MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T The appellant, who sustained certain injuries in a road traffic accident, filed a claim petition in MVC No.117/2006 before Principal Civil Judge (Senior Division) and MACT, Mandya seeking compensation of Rs.8,00,000/-. The Tribunal by impugned judgment and award has awarded him a sum of Rs.1,05,400/- with interest at 6% p.a. The claimant- appellant aggrieved by the quantum of compensation awarded by the Tribunal is before this Court seeking enhancement of compensation.
2. With the consent of learned counsel appearing for parties, the appeal is heard and disposed of finally.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 15.03.2006 due to rash and negligent driving of the offending motorcycle bearing registration No.KA-11-L-8282 by its rider and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether compensation of Rs.1,05,400/- with interest @ 6.% p.a. awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. As per wound certificate Ex.P-4, the claimant has sustained following injuries:-
a) Tenderness present over the chest more on left side. Patient was referred to General Surgeon and after examination and chest X-ray multiple rib fractures are seen on the left side of his body.
The injuries sustained by the claimant are also evident from medical bills at Ex.P-5, medical prescriptions Ex.P.6, Ultrasonography report Ex.P.7 & 8, discharge summary Ex.P.9, 11 X-ray films Ex.P.10 and C.T. Scan films/report at Ex.P.11 & 12, and corroborated by the oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. Doctor K.M. Madappa (PW-2), working at J.S.S. Hospital, Mysuru, in his evidence has not stated the percentage of disability caused to the limb and to the whole body.
7. Considering the nature of injuries sustained by the claimant, a sum of Rs. 35,000/- awarded by the Tribunal towards ‘pain and suffering’ is very much on the lower side and it is deserved to be enhanced by another sum of Rs.15,000/-. Hence, a sum of Rs.50,000/- is awarded under this head.
8. As Rs.20,000/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the claimant and there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 22 days in J.S.S. Hospital, Mysuru. Considering the duration of treatment, Rs.5,000/- awarded by the Tribunal towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges is very much on the lower side and it is deserved to be enhanced by another sum of Rs.10,000/- and therefore Rs. 15,000/- is awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges as against Rs.5,000/- awarded by the Tribunal.
10. The claimant claims to have been working as a coolie and earning a sum of Rs.3,500/- per month. In the absence of proof of income, considering his age as 20 years, year of accident as 2006 and his avocation as coolie, his income could be assessed at Rs.3,500/- per month as against Rs.1,800/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 5 months and therefore a sum of Rs.17,500/- is awarded towards ‘loss of income during laid up period’ as against Rs.5,400/- awarded by the Tribunal.
11. In the absence of medical evidence as regards the percentage of disability, caused to limb and to whole body, it is very difficult for this Court to determine the compensation payable towards loss of future earning capacity. However, as could be seen from the evidence of the Doctor (PW.2), the claimant had sustained fracture of left side rib, fracture of haemopneumotherox, due to which, his urinary bladder is affected. Therefore, considering the nature of injuries sustained by the claimant, disability stated by the doctor and having regard to discomfort and unhappiness he has to undergo in his future life, interest of justice would be met, if a sum of Rs.75,000/- is awarded towards ‘permanent disability and loss of amenities’, as against Rs.40,000/- awarded by the Tribunal. Hence, a sum of Rs.75,000/- is awarded under these heads.
12. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
Pain and sufferings 50,000-00 Medical Expenses 20,000-00 Conveyance & nourishment charges.
Loss of income during laid up period Loss of amenities & Loss of expectation of life *15,000-00 17,500-00 75,000-00 TOTAL *1,77,500-00 LESS: Compensation awarded by the Tribunal 1,05,400-00 BALANCE *72,100-00 13. Accordingly, the appeal is allowed-in-part.
The impugned judgment and award dated 27.05.2009 passed by the Tribunal in MVC. No. 117/2006, on the file of the Civil Judge (Senior Division) & MACT., Mandya is modified to the extent *Corrected vide court order dated:13.12.17.
stated herein above. The claimant is entitled for an additional compensation of *Rs.72,100/- (Rupees *seventy two thousand one hundred only) with interest at 6% p.a. from the date of claim petition till the date of realisation.
14. The 2nd respondent-Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. It is ordered to be released to the claimant immediately after deposit.
No order as to costs.
SD/- JUDGE Vr *Corrected vide court order dated:13.12.17.