IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4981 OF 2016 (MV) CONNECTED WITH MFA NO. 4982 OF 2016 (MV) IN MFA NO. 4981/2016: BETWEEN SMT. SUDHA. M W/O PRABHU NOW AGED ABOUT 30 YEARS R/AT NO.64/1, 5TH CROSS CHOLURPALYA BANGALORE-560 023.
... APPELLANT (BY SMT. D.K. KAMALA - ADVOCATE) AND 1. M/S IFFCO TOKYO GEN INS CO LTD., REP. BY ITS BRANCH MANAGER CRISTU COMPLEX, NEXT TO MANDOVI MOTORS BANGALORE – 560 001.
2. BINDU GOPAL RAO R/AT NO. 204, NAVARATNA MANOR 37/1, SUBBARAMA CHETTY ROAD BASAVANAGUDI BANGALORE – 560 004.
3. RAMESH .M S/O MURUGAN NO.47/A, MANUVANA 1ST CROSS, VIJAYANAGAR BANGALORE – 560 040.
... RESPONDENTS (BY SRI. E. I. SANMATHI – ADVOCATE FOR R-1; NOTICE TO R-2 & R-3 IS DISPENSED WITH VIDE COURT ORDER DATED 12.03.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2015 PASSED IN MVC NO. 4870/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.4982/2016: BETWEEN SMT. SUNDARI @ GUNASUNDARI W/O MURUGAN NOW AGED ABOUT 50 YEARS R/AT NO. 64/1, 5TH CROSS CHOLURPALYA BANGALORE-560023.
... APPELLANT (BY SMT. D.K. KAMALA - ADVOCATE) AND 1. M/S IFFCO TOKYO GEN INS CO LTD., REP. BY ITS BRANCH MANAGER NO.41, 2ND FLOOR CRISTU COMPLEX, NEXT TO MANDOVI MOTORS BANGALORE – 560 001.
2. BINDU GOPAL RAO R/AT NO. 204, NAVARATNA MANOR 37/1, SUBBARAMA CHETTY ROAD BASAVANAGUDI BANGALORE – 560 004.
3. RAMESH .M S/O MURUGAN NO.47/A, MANUVANA 1ST CROSS, VIJAYANAGAR BANGALORE – 560 040.
... RESPONDENTS (BY SRI. H. N. KESHAVA PRASHANTH - ADV., FOR R-1 NOTICE TO R-2 & R-3 IS DISPENSED WITH VIDE COURT ORDER DATED 12.03.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2015 PASSED IN MVC NO. 4871/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are listed for admission, with the consent of the learned counsel for both the parties, the same are heard for final disposal. Further, since both the appeals arise out of a common judgment, they are heard together and are disposed of by this common order.
2. Heard the learned counsel for the claimants - appellants in MFA No.4981/2016 and MFA No.4982/2016 and the learned counsel for the Insurance Company – Respondent No.1 in both the appeals and perused the records. Notice to Respondents 2 and 3 has been dispensed with in both the appeals.
3. The injured-claimants have preferred the appeals in MFA Nos.4981 & 4982/2016 not being satisfied with the quantum of compensation awarded by the Tribunal by its impugned judgment dated 14.10.2015 in MVC Nos.4870 & 4871/2013 respectively, seeking enhancement of compensation.
4. The factual matrix is that on 13.07.2013 at about 6.30 a.m., the claimants / appellants were proceeding in Maruthi Alto car bearing Regn.No.KA-05- MM-1078 from Bangalore to Villupuram and when they neared Anand Nagar, Vettavalam, at that time, the driver of the car who was driving the same in a rash and negligent manner, in order to avoid dashing a buffalo is said to have lost control over the car and had dashed against a roadside tree. As a result of the same, the appellants sustained injuries and were treated as in- patients in Thiruvannamalai Government Hospital and later in KIMS Hospital, Bangalore. Smt. Sudha, the appellant in MFA No.4981/2016, sustained fracture of shaft of right tibia, head injury and abrasion and other injuries all over the body. The appellant in MFA No.4982/2016 namely Smt. Sundari sustained post traumatic fracture of both bones of both legs, fracture of right segmental and left middle 1/3rd, fracture shaft of right humerus, fracture of distal end of right radius and wound over the right thigh. Hence, they filed claim petitions seeking compensation for the injuries suffered by them in the accident.
5. After service of notice, the owner of the offending vehicle – Respondent No.2 as well as the insurer – Respondent No.1 appeared before the tribunal, filed their objection statement and contested the claim petition. Respondent No.3 did not appear and hence was placed exparte. During the enquiry before the tribunal, the claimants have established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.1,73,000/- in respect of the appellant in MFA No.4981/2016 and Rs.5,40,000/- in respect of the appellant in MFA No.4982/2016 with interest at 9% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in these appeals.
7. The learned counsel for the appellant in MFA No.4981/2016 vehemently submitted that the tribunal has erred in assessing the income of the injured at just Rs.5,000/- per month when she was as Tailor by avocation and was earning Rs.10,000/- per month. Moreover, the disability though assessed by the Doctor at 8.38%, the Tribunal has taken only 7% and it requires interference regarding that aspect as well. Moreover, though the appellant had sustained fracture of shaft of right tibia, head injury and abrasion and other injuries all over the body, a meagre amount has been granted towards ‘Pain and suffering’ as well. Hence, the learned counsel prays for enhancement in the compensation awarded by the Tribunal suitably.
8. The learned counsel for the appellant in MFA No.4982/2016 vehemently submitted that the tribunal has erred in assessing the income of the injured at just Rs.5,000/- per month when she was as Tailor by avocation and was earning Rs.10,000/- per month. Moreover, though the appellant had sustained post traumatic fracture of both bones of both legs, fracture of right segmental and left middle 1/3rd, fracture shaft of right humerus, fracture of distal end of right radius and wound over the right thigh, a meagre amount has been granted towards ‘Loss of amenities’, ‘Nourishment and conveyance charges’ Hence, the learned counsel prays for enhancement in the compensation awarded by the Tribunal suitably.
9. Per contra, the learned counsel appearing for the insurer – Respondent No.1 submitted that the tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured / appellants in both the appeals and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
10. On careful evaluation of the material on record, it is seen that the injured claimants had sustained grievous injuries in the accident that occurred on 13.07.2013 including fractures and were treated as in-patients in hospital and they had undergone utmost pain and suffering including expenses towards treatment of their injuries. Under such circumstances, having regard to the nature of injuries sustained by the claimant, period of treatment undergone by the injured and consequential disability sustained by them, I find that the compensation awarded by the tribunal under certain heads requires to be enhanced suitably.
11. In so far as the appellant in MFA No.4981/2016 Smt. Sudha M is concerned, since the accident is of the year 2013 and having regard to the fact that she was a Tailor by profession, the notional income taken at Rs.5,000/- by the Tribunal requires interference. Accordingly, as per the settled norms, her notional income is hereby taken at Rs.8,000/-. However, the disability and the multiplier taken by the Tribunal being just and proper, the compensation towards ‘Loss of future income’ comes to Rs.1,14,240/- (8000 x 12 x 7/100 x 17) as against Rs.72,000/- awarded by the Tribunal. Further, the compensation towards ‘Loss of amenities’ being on the lower side, is enhanced by another Rs.10,000/- in addition to Rs.15,000/- granted by the Tribunal. Further, the compensation towards ‘Pain and suffering’ is enhanced by another Rs.15,000/- in addition to Rs.35,000/- granted by the Tribunal. Further, I find that the compensation towards ‘Loss of income during laid up period’ also requires to be enhanced and is hereby enhanced by another Rs.9,000/- in addition to Rs.11,000/- awarded by the tribunal. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference. Thus, in all, the claimant / appellant in MFA No.4981/2016 is entitled to a total compensation of Rs.2,49,240/- as against Rs.1,73,000/- awarded by the tribunal. The enhanced compensation would be Rs.76,240/-.
12. In so far as the appellant in MFA No.4982/2016 Smt. Sundari @ Gunasundari is concerned, since the accident is of the year 2013 and having regard to the fact that she was a Tailor by profession, the notional income taken at Rs.5,000/- by the Tribunal requires interference. Accordingly, as per the settled norms, her notional income is hereby taken at Rs.8,000/-. However, the disability and the multiplier taken by the Tribunal being just and proper, the compensation towards ‘Loss of future income’ comes to Rs.3,49,440/- (8000 x 12 x 28/100 x 13) as against Rs.2,19,000/- awarded by the Tribunal. Further, the compensation towards ‘Loss of amenities’ being on the lower side, is enhanced by another Rs.15,000/- in addition to Rs.25,000/- granted by the Tribunal. Further, I find that the compensation towards ‘Loss of income during laid up period’ also requires to be enhanced and is hereby enhanced by another Rs.10,000/- in addition to Rs.25,000/- awarded by the tribunal. As regards ‘Attendant, nourishment charges and conveyance charges’ as well, since I find that the compensation is on the lower side, the same is enhanced by another Rs.8,000/- in addition to Rs.12,000/- awarded by the Tribunal. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference. Thus, in all, the claimant / appellant in MFA No.4982/2016 is entitled to a total compensation of Rs.7,03,440/- as against Rs.5,40,000/- awarded by the tribunal. The enhanced compensation would be Rs.1,63,440/-. However, the appellant in MFA 4982/2016 is not entitled to any interest during the delay period.
In view of the aforesaid reasons and findings, I proceed to pass the following:
O R D E R Both the appeals are allowed in part. In modification of the impugned judgment and award dated 14.10.2015 rendered by the Tribunal in MVC Nos.4870/2013, the compensation payable to the claimant Smt. Sudha M – appellant in MFA No.4981/2016 is enhanced to Rs.2,49,240/- as against Rs.1,73,000/- awarded by the tribunal. The enhanced compensation would come to Rs.76,240/-.
Further in modification of the impugned judgment and award dated 14.10.2015 rendered by the Tribunal in MVC Nos.4871/2013, the compensation payable to the claimant Smt. Sundari @ Gunasundari – appellant in MFA No.4982/2016 is enhanced to Rs.7,03,440/- as against Rs.5,40,000/- awarded by the tribunal. The enhanced compensation would come to Rs.1,63,440/-. However, the appellant in MFA 4982/2016 is not entitled to any interest during the delay period of 162 days.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
SD/- JUDGE KS