IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.9619 OF 2012 (MV) BETWEEN:
Swamaiah S/o. Venkataramaiah, Aged about 29 years, R/at Sunduvalu Village, Periyapatna Taluk, Mysuru District. …Appellant (By Sri. K.Ravishankar, Advocate ) AND:
1. K.M. Kamavva, W/o. Late Machaiah, Aged about 51 years, R/o. Sai Estate, Nanjarayapatna Village, Valnoor Post, Kushalnagar, Somwarpet Taluk, Coorg District.
2. Oriental Insurance Company Ltd., D.O. No.II (T.P. Hub).
Muslim Hostel Complex, Kantraj Urs Road, Saraswathipuram, Mysuru-09. …Respondents (By Sri. A.M.Venkatesh, Advocate For Sri R.Rajagopalan, Advocate for R-2 And appeal dismissed as against respondent No.1 Vide order dated 12.8.2015) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:09.01.2012 passed in MVC No.475/2011, on the file of Presiding Officer, Fast Track Court-II and Member, Addl.MACT, Mysuru, 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 This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Presiding Officer, Fast Track Court-II & Member, Addl.MACT, Mysuru, (hereinafter for brevity referred to as ‘Tribunal’), by judgment and award dated 09.01.2012,, passed in MVC No.475/2011.
2. The summary of the case of the claimant in the Tribunal is that on 23.3.2011, at about 1.00 p.m., after finishing his coolie work at Tobacco Board, while he was proceeding on a motorbike bearing registration No.KA-45-E-8040, along with another person, towards Periyapatna on B.M.Road, he was hit by a Maruthi Swift car bearing registration No.KA-12-N-7435, due to rash and negligent driving by the driver of the car. As a result of such accident, he sustained head injury and was admitted to the hospital. Claiming that he had taken treatment as an inpatient in the hospital and due to the accident, he is suffering from permanent disability which has prevented him from pursuing any avocation to earn his livelihood, the claimant has claimed a compensation of a sum of `3,53,000/- from the respondents holding them liable being owner and insurer of the alleged offending motor car.
3. Before the Tribunal, the claimant got himself examined as PW-1 and examined Dr.T.S.Vasan as PW-2 and got marked documents from Exs.P-1 to P-13. Neither any witnesses were examined nor any documents were marked on behalf of the respondents.
4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the
5. The Tribunal awarded compensation of a sum of `59,000/- with interest at 6% per annum thereupon, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
6. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. Learned counsel for the appellant/claimant submitted that the claimant had sustained internal head injury and was treated as an inpatient in the hospital. He has also undergone C.T. Scan. The doctor who examined the claimant has assessed the disability at 20% which was not considered by the Tribunal. He further submitted that without attributing any convincing reasons, the Tribunal disbelieved a major portion of the medical bills produced by the claimant. Stating that the compensation awarded under all the heads are meager, the learned counsel for the appellant prays for allowing the appeal.
9. Learned counsel for the respondent-Insurance Company in his arguments submitted that the very same doctor who was examined as PW-2 has stated that C.T. Scan has shown normalcy. As such, there are no reasons to believe that the claimant sustained any head injury resulting in permanent partial disability. He also submits that the compensation awarded by the Tribunal is reasonable since it has considered all aspects. As such, the appeal does not warrant any interference.
10. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
11. The present appeal being the claimant’s appeal and the respondents having not preferred either cross- objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
12. The claimant apart from examining himself as PW-1, had also got examined one Sri T.S.Vasan as PW-2. PW-1 has stated that he has sustained head injury due to the alleged accident. However, the wound certificate at Ex.P-5 shows that he complained pain on right temporal region and he was unconscious when he was shifted to hospital. There was bleeding on the right occipital region. It was thereafter, he was treated in the hospital for five days as could be seen from the discharge summary at Ex.P-8. As per the doctor i.e., PW-2, the repeated C.T. Scan on 28.3.2011 shows that he was found normal and he was maintained with medicines and thereafter, he was discharged from the hospital.
13. In the said background, even though there were no specific external injuries, including any fractures of any of the bones of the body, however, the suspecting head injury and the treatment given to him admitting him as an inpatient in the hospital, including he being subjected to C.T. Scan, cannot be ignored. The wound certificate itself go to show that he was unconscious immediately after the accident and was shifted to the hospital. In the said circumstances of the case, even in the absence of any major external injuries, it cannot be lost sight of that he had suffered considerable pain due to the injury sustained by him in the accident. As such, towards the same, the compensation awarded by the Tribunal which at a sum of `15,000/- appears to be on the lower side. Thus, an enhancement by a sum of `10,000/- is awarded to the claimant to bring it to a just compensation.
14. Towards medical expenses, the Tribunal has awarded a compensation of a sum of `5,000/-. Even after noticing that the claimant has produced twentysix medical bills amounting to `10,910/- and sixteen prescriptions, though the Tribunal has suspected some of the medical bills as the same does not stand in the name of the claimant and there is no signature of the person who has drawn the bill, however, having re-look of those exhibits, which are in the form of medical bills and medical prescriptions, I am of the view that the compensation awarded by the Tribunal in a sum of `5,000/- deserves an enhancement by an additional sum of `5,000/-.
15. Towards incidental expenses, the Tribunal has awarded compensation of a sum of `3,000/-. After noticing that he was inpatient in the hospital and on going through the discharge summary at Ex.P-8, I am of the view that the incidental expenses incurred by him should have been any amount not less that `6,000/-. As such, for the difference amount of `3,000/-, the claimant is entitled to.
16. Even though the Tribunal has considered the notional income of the claimant at `3,000/- per month, however, for the treatment period of one week as an inpatient in the hospital, towards `loss of income during laid up period’, the Tribunal has awarded a sum of `6,000/-, as such, I do not find any reason to enhance the said amount.
17. Since the compensation awarded towards `loss of amenities in life’, which is at a sum of `30,000/-, is a reasonable compensation, I do not find any reason to further enhance it.
18. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for enhancement of compensation in a sum of `18,000/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 09.01.2012, passed by the learned Presiding Officer, Fast Track Court-II & Member, Addl.MACT, Mysuru, in MVC.No.475/2011, is modified to the extent that the compensation awarded at `59,000/- is enhanced by a sum of `18,000/-, thus fixing the total compensation at `77,000/- (Rupees Seventyseven thousand only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
Sd/- JUDGE bk/