IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.7386 OF 2010 [MV] BETWEEN United India Insurance Co. Ltd., Davanagere DO, M.M.K Complex Akkamahadevi Road P J Extension, Davanagere Rep. by its Divisional Manager Sri K Nagappa. ... Appellant [By Sri K S Lakshminarasappa for Sri B C Seetharama Rao, Advocates] AND 1. Smt.Abida Begum Aged about 41 years w/o Mr.Mohammed Musharaf r/o Kerebilachi village Channagiri Taluk.
2. Sri Honnappa, s/o Ningappa aged about 37 years r/o Shankaraghatta Grama, Shimoga Taluk (Driver of Car No.KA17/M-9416) *3. Dr. Charitha K., major, D/o. Proff. B.S. Sherigara, Residing at No.224, Behind: CODS, Cauvery PG Hospital, JJMMMC Campus, Davanagere. ... Respondents [By Sri Mahesh R Uppin, Advocate for R1, Sri Shashikumar R, Advocate for R2 and R3) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 10.6.2010 passed in MVC No.465/2009 on the file of I Additional District and *Corrected vide chamber order dated 24.12.2019 Sessions Judge and MACT-II, Davanagere, awarding a compensation of Rs.2,00,000/- with interest at 6% p.a. from the date of petition till realization.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the Insurance Company challenging the quantum of compensation awarded in MVC No.465/2009 on the file of I Additional District and Sessions Judge and MACT-II, Davanagere, whereby a total compensation of Rs.2,00,000/- was awarded to respondent No.1/claimant for the injuries sustained by her in a road traffic accident, which occurred on 12.2.2009 involving a car bearing Regn. No.KA-17/M-9416, which was insured with the appellant herein.
2. It is the case of the claimant that on 12.2.2009 at about 8.45 a.m, when she was waiting by the side of the road in front of Bapuji Hospital, Davanagere, the driver of the car bearing Regn. No.KA-17/M-9416 drove the said car in a rash and negligent manner and dashed to her, which resulted in the claimant sustaining grievous injuries. She was admitted and treated at Bapuji Hospital, Davanagere and discharged on 19.2.2009. It is the further case of the claimant that on account of the accident, she suffered traumatic compression fracture T-12 and she has suffered permanent disability to an extent of 25 to 30%.
3. Before the Tribunal, the claimant got herself examined as PW1 and one Dr.Ravi Karigowdar as PW2 and got marked Exs.P1 to P16. On behalf of respondents, RW1 and RW2 were examined and got marked Exs.R1 to R4.
4. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.2,00,000/- under the following heads:
disability suffered - Rs.1,29,600/-
5. Total loss of income during hospitalization and bed rest - Rs. 5,000/-
Total Rs.2,00,000/-
5. It is the contention of the learned counsel for the appellant that the claimant has not sustained any fracture as stated by her and the Tribunal has committed an error in assessing the compensation under the head `loss of income’ by taking the disability at 20%. It is further contended that PW2 has not stated that there is fracture sustained by the claimant. It is the further contention of the learned counsel for the appellant that Ex.P5 – wound certificate does not clearly mention that there is any fracture. Accordingly, learned counsel seeks to allow the appeal.
6. Learned counsel for respondent No.1/claimant would contend that the judgment and award passed by the Tribunal is based on evidence and material on record and the Tribunal has rightly assessed the total compensation, which does not call for interference. Accordingly, learned counsel seeks to dismiss the appeal.
7. It is the case of the claimant that on 12.2.2009 at 8.45 a.m., when she was waiting by the side of the road in front of Bapuji Hospital, Davanagere, driver of the car bearing Regn. No.KA-17/M-9416 drove the same in a rash and negligent manner and dashed against her and she sustained injuries and she was admitted to Bapuji Hospital, Davanagere, wherein she took treatment as an inpatient from 12.2.2009 to 19.2.2009 and further that she suffered disability to an extent of 25 to 30% to the whole body. It is also her case that she was aged about 40 years at the time of accident and she was doing agricultural work and earning a sum of Rs.5,000/- p.m.
8. The accident in question and the liability of the insurer to pay the compensation are not in dispute. It is the contention of the learned counsel for the appellant that the injured has not suffered any fracture, which could be seen from the wound certificate – Ex.P5. It is also his contention that PW2 – doctor who has examined the claimant has specifically stated that in the x-ray marked as Ex.R3, no fracture has been noticed. It is his further contention that the disability assessed by the doctor – PW2 is not proper and the said doctor has not specifically stated as to whether the disability is to the whole body or to the particular limb. Even otherwise there is no proper assessment of disability and when there is no fracture sustained, there is no question of disability, which could have been suffered by the injured.
9. The injured/claimant has examined PW2. He has deposed that Ex.P8 is the disability certificate issued by him and Exs.P14 and 15 are the letters, Ex.P12 is the x-ray film and Ex.R4 is the x-ray report. In his cross- examination, he stated that he saw the injured for the first time on 25.2.2009. However, he admits that in Ex.P5 – wound certificate, there is a mention that there is no fracture.
10. RW2 was examined by the Insurance Company.
He has deposed that in Ex.R3, there is no mention of any fracture. Ex.P5 is issued by the said doctor. However, in the cross-examination, he admits that in Ex.R2 – case sheet, it is mentioned that there is simple traumatic compression fracture and that was mentioned by the concerned unit, who gave the treatment. He has also admitted that if in the first instance, x-ray is not properly done, they will take another x-ray for the second time. He further admits that on 18.2.2009 it was mentioned that it is a case of simple traumatic compression fracture T12. Further, even at the time of discharge, it was mentioned that this is a case of simple traumatic compression fracture T12 in the case sheet. In view of the said evidence on record, it cannot be said that the claimant has not sustained any fracture as contended by the learned counsel for the appellant.
11. According to PW2, the claimant/injured has suffered permanent disability to the extent of 25 to 30%. However, it is not properly stated as to on what basis he has assessed the said disability. Even otherwise, the evidence of PW2 does not clearly disclose as to whether the said disability is to the whole body or to a particular part of the body. Therefore, merely because it is mentioned in Ex.P8 issued by PW2 assessing the disability to an extent of 25 to 30%, it cannot be held that the injured has suffered disability to the whole body to that extent. The Tribunal has taken the disability at 20% to the whole body. However, as rightly submitted by the learned counsel for the appellant, in the absence of evidence with regard to the extent of disability to the whole body, it cannot be held that the injured has suffered the said disability. Considering the fact that claimant has sustained a traumatic compression fracture T12 bone, I am of the view that the disability suffered by the claimant can be assessed at 10% to the whole body.
12. The income of the claimant taken by the Tribunal is Rs.3,600/- p.m. According to the claimant, she was doing agricultural work and earning Rs.5,000/-
p.m. The accident is of the year 2009. The income taken by the Tribunal, in the facts and circumstances of the case, is on the lower side. The income of the claimant is taken as Rs.5,000/- p.m. The injured was aged about 40 years. The proper multiplier applicable is 15. Hence, the claimant is entitled for a compensation of Rs.90,000/- (5,000 x 12 x 15 x 10%) towards loss of future income due to disability suffered.
13. The Tribunal has awarded a sum of Rs.5,000/-
p.m. under the head ‘loss of income during hospitalization and bed rest’. Considering the injuries and disability suffered, the income now taken and also considering the nature of work of the claimant, I deem it appropriate to award a sum of Rs.10,000/- under the said head. The compensation awarded under other heads are just and reasonable and the same is maintained. Accordingly, I pass the following:
ORDER Appeal is partly allowed.
The judgment and award dated 10.6.2010 passed in MVC No.465/2009 on the file of I Additional District and Sessions Judge and MACT-II, Davanagere, is hereby modified.
The claimant/respondent No.1 is entitled to a total compensation of Rs.1,65,400/- as against Rs.2,00,000/- awarded by the Tribunal. The said compensation of Rs.1,65,400/- shall carry interest at 6% p.a. from the date of petition till the date of realization.
The appellant/Insurance Company shall deposit the amount if not already deposited, within a period of four weeks from the date of receipt of copy of this order.
The amount in deposit made before this Court shall be transmitted to the Tribunal for disbursement to the claimant.
Sd/- JUDGE Bkm.