IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.10272/2010 (MV) BETWEEN:
Srinivasa Ramanna Marol S/o Ramanna Marol Aged about 34 years R/at Kopparadapet, Elkal Post, Hunagunda Taluk Bijapur District.
(By Sri R. Chandrashekhar, Advocate for M/s. Lawyers Net, Advocates) AND:
1. L.S. Rudramurthy Major, FR/at No.35/2, 11th Cross, Magadi Main Road, A.D.Halli, Bangalore-560 079.
2. The Regional Manager The Oriental Insurance Co. Ltd., R/o Leo Shopping Complex, Residency Road Cross, M.G. Road, Bangalore-560 025.
… Appellant … Respondents (By Sri M. Arun Ponnappa, Advocate for R2; R1-Notice dispensed with vide Court Order dated 21.10.2011) This MFA is filed under Section 173(1) of MV Act, against the judgment and award dated 08.02.2010, passed in MVC No.4354/2008 on the file of the XX Additional Judge & XVIII ACMM, MACT, 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:-
J U D G M E N T The present appeal has been preferred by the appellant-claimant seeking enhancement of compensation awarded by the MACT and XX Additional Judge and XVIII ACMM, Bangalore, in MVC No.4354/2008 by order dated 8.2.2010.
2. Heard the learned counsel appearing for both the parties.
3. Though this matter is listed for admission, with the consent of learned counsel appearing for both the parties, it is taken up for final disposal.
4. The brief facts leading to the case are that on 8.9.2006 petitioner Srinivasa Ramanna Marol was proceeding on a motorcycle bearing Registration No.KA- 041-H-1044 as a pillion rider on Sulthan Road, N.T.Pete near Rayon Circle, Bangalore at about 6.30 a.m., at that time a motorbike bearing Registration No.KA.02 B-9108 came rashly and negligently with great speed and dashed to the motorcycle on which the petitioner was proceeding and as a result of the same the petitioner fell down and sustained injuries. Immediately he was shifted to K.R.Hospital and thereafter shifted to Sri.Krishna Nursing Home and Orthopedic Centre, wherein he has taken treatment for the said injuries and he was inpatient from 8.9.2006 to 19.9.2006 and he was also further advised to follow up treatment and he was advised to take complete bed rest. It is further contention of the petitioner that he was working as a goldsmith in his native place Hunagunda and was earning Rs.20,000/- per month. Due to the accidental injuries he is unable to resume to his work.
Hence, he prayed for awarding a compensation of Rs.10,00,000/-.
5. Though notice was served on respondent No.1, he remained absent and placed exparte. Respondent No.2- Insurance Company appeared through it’s counsel and filed its written statement by denying the contents of the petition. It is further contended that the tempo was insured with the said Insurance Company and policy was valid from 28.11.2005 to 27.11.2006, but its liability if any is subject to the terms and conditions of the policy and on these grounds he prayed for dismissal of the petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that the Motor accident which occurred on 08.09.2006 at about 6.30 a.m. on Sulthan Road, N.T.Pete near Rayon Circle, Bangalore, was due to rash and negligent driving of a tempo bearing No.KA-02-B-9108 and in the said accident, he sustained grievous injuries?
2. Whether the petitioner is entitled for compensation? If so, how much and from whom?
3. To what order or award?”
7. In order to prove the case of the petitioner, he got himself examined as PW1 and also examined Doctor as PW2 and got marked documents Exs.P1 to P14. Respondent No.2 neither got examined any witnesses nor got marked any documents. After hearing the parties to the lis the Tribunal has awarded compensation of Rs.37,000/- on various heads. By assailing the said judgment and award, the appellant-claimant is before this Court.
8. The main grounds urged by the learned counsel for the appellant are that the appellant has sustained grievous injuries and has also incurred huge medical expenses, but the Court below has awarded the compensation on the lower side. It is further contended that the income which has been taken by the Tribunal is also on the lower side and it has also not awarded any compensation on loss of amenities and loss of income during laid up period and the incidental charges which has been incurred by the appellant. He has further contended that the interest which has been awarded is also on the lower side. On these grounds he has prayed for allowing the appeal by enhancing the compensation.
9. Per contra, the learned counsel appearing on behalf of the respondent-Insurance Company vehemently contended that the compensation awarded by the Tribunal is just and proper. However, the learned counsel appearing on behalf of the Insurance Company fairly contended that the Tribunal has erred in not awarding any compensation during the laid up period and loss of amenities and in this behalf a reasonable amount may be enhanced. On these grounds he prayed for disposal of the case on merits.
10. The accident in question so also offending vehicle insured with the respondent-Insurance Company is not in dispute. As could be seen from the judgment and award of the Tribunal, the appellant-claimant has contended that he was doing goldsmith business at his native place Hunagunda and was earning Rs.20,000/- per month and because of the injuries he is unable to work. In order to substantiate the said fact the claimant has not produced any document to show that he was doing goldsmith business and was earning Rs.20,000/- per month. Under the said circumstances the Tribunal by taking into consideration the injury by itself and other circumstances has awarded an amount of Rs.27,000/- to the injuries and Rs.3,000/- towards pain and sufferings and an amount of Rs.7,000/- towards medical expenses. In all, Tribunal has awarded compensation of Rs.37,000/-.
11. Though under the normal circumstances the said compensation is justified, however to grant compensation, avocation, age and the year of the accident has to be taken into consideration. The accident in question has taken place on 8.9.2006. During the year 2006 the notional income at the rate of Rs.3,750/- is the yardstick which is used to be taken even in the absence of proof of any document for settlement of cases in Lok Adalath. Therefore, I think it just and proper to accept the same. By considering the income of the injured claimant at Rs.3,750/- per month and by taking into consideration the injuries suffered by the claimant, he might have taken treatment for a minimum period of three months and during the said period he might have lost some income. In that light, the appellant-claimant is entitled to a sum of Rs.11,250/- towards loss of income during the laid up period.
12. As could be seen from the records the appellant- claimant has sustained the fracture of medial mallulous of right leg, fracture of tibia with subluxation of ankle of right leg and lacerated wound all over the body and he was also admitted in the hospital for a period of 12 days from 8.9.2006 to 19.9.2006. In this background the appellant- claimant is entitled to an amount of Rs.40,000/- towards pain and sufferings.
13. As could be seen from the evidence of PW2 - the doctor, though he has not treated the appellant-claimant, in his evidence he has stated that the claimant has sustained head injury, fracture of medial mallulous of right ankle, fracture of talus with subluxation of ankle joint of right side and fracture was operated on 09.09.2006 and fracture was fixed with screws, sutures removal done, POP Plaster applied and he was discharged on 19.09.2006 with an advise for follow up treatment and thereafter he has also attended the clinic for follow up treatment. By taking into consideration the said facts and circumstances and the avocation of the appellant-claimant, as he was doing the goldsmith business and he has to sit for a longer period, if an amount of Rs.20,000/- is awarded towards loss of amenities, it appears to be just and proper.
14. Though the learned counsel for the appellant would contend that the appellant-claimant has taken treatment for a period of 12 days and thereafter he was also advised to take complete bed rest for a period of three months and has incurred huge medical expenses, but in order to substantiate the said fact, he has not produced any document. Under such circumstances, whatever the amount awarded under the head of medical expenses is confirmed.
15. As could be seen from the records the appellant- claimant has produced Ex.P8- 31 medical bills. After considering the said fact the Tribunal has awarded an amount of Rs.7,000/- towards medical expenses. The said amount appears to be just and proper. But however, by taking into consideration the injuries suffered by the appellant-claimant, he might have taken the assistance of attendant and he might have incurred some incidental charges, for transport and other purpose, if an amount of Rs.5,000/- is awarded, it appears to be just and proper.
16. The learned counsel for the appellant further contended that PW2- the doctor who has examined before the Court has deposed that, the appellant has sustained permanent disability of 30% to the right lower limb which comes to 7% to 8% to the whole body. But, the Tribunal after considering the evidence of PW2, as he has not treated the appellant in his clinic, his evidence cannot be considered and in that behalf, disability has not been taken into consideration for the purpose of awarding any compensation, by taking into consideration the injuries and the avocation, if an amount of Rs.20,000/- is awarded towards loss of future income, it appears to be just and proper.
17. Keeping in view the above said facts and circumstances the appellant-claimant is entitled to a total compensation of Rs.1,03,250/-. The Tribunal has awarded compensation of Rs.37,000/-. Hence, the appellant is entitled to an additional compensation of Rs.66,250/-
(1,03,250 – 37,000) with interest at 6% per annum from the date of petition till realization.
18. Accordingly, appeal is allowed in part and the appellant is entitled to additional compensation of Rs.66,250/- with interest at 6% per annum from the date of petition till realization.
The judgment and award passed by the Tribunal in MVC No.4354/2008 is modified as indicated above.
The respondent-Insurance Company is directed to deposit the award amount with interest within six weeks from the date of receipt of copy of this judgment.
Registry is directed to draw the award accordingly. Registry is also directed to send back the records forthwith to the jurisdictional Tribunal.
Sd/- JUDGE *AP/-