IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.7161 OF 2015 (MV) CONNECTED WITH MFA NO.124/2016 (MV) IN MFA NO.7161/2015 BETWEEN M/S. UNITED INIDA INSURANCE COMPANY LIMITED, REP. BY ITS AUTHORIZED SIGNATORY, NO.40/3, GEETHA MANSION, K.G. ROAD, BENGALURU-560 009.
NOW REPRESENTED BY M/S. UNITED INIDIA INSURANCE COMPANY LIMITED, REGIONAL OFFICE, NO.5TH AND 6TH FLOOR, NRUPATHUNGA ROAD, KRISHI BHAVAN, BANGALORE-560 001. REPRESENTED BY ITS REGIONAL MANAGER.
... APPELLANT (BY SRI.SURESH K., ADVOCATE) AND 1. SRI. MANJUNATH, S/O. SRI. CHANNAPPA, AGED ABOUT 57 YEARS, R/A. NO.898, 50TH CROSS, KUMARASWAMY LAYOUT, BENGALURU-560 078.
2. SRI. R. BALASUBRAMANIAN, S/O. LATE RANGASWAMY, AGED ABOUT 34 YEARS, R/A. NO.107, 2ND MAIN ROAD, BHCS LAYOUT, UTTARAHALLI, BENGALURU-560 009.
... RESPONDENTS (BY SRI.N.D. JAYADEVAPPA,ADVOCATE FOR R1;
R2-NOTICE HELD SUFFICIENT VIDE COURT ORDER DATED 02.07.2018) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.06.2015 PASSED IN MVC NO.1417/2014 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BENGALURU, AWARDING COMPENSATION OF RS.4,89,193/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN COURT. (FUTURE MEDICAL EXPENSES OF RS.20,000/- WILL NOT CARRY INTEREST) IN MFA NO.124/2016 BETWEEN MANJUNATH, S/O. CHANNAPPA, AGED ABOUT 57 YEARS, R/O. NO.898, 50TH CROSS, KUMARASWAMY LAYOUT, BENGALURU, PIN-560 078. ... APPELLANT (BY SRI.JAYADEVAPPA N.D., ADVOCATE) AND 1. R. BALASUBRAMANIAN, S/O. LATE RANGASWAMY, AGED ABOUT 34 YEARS, R/AT NO.107, 2ND MAIN ROAD, BHCS LAYOUT, UTTARAHALLI, BENAGLURU.
PIN-560 056.
2. UNITED INDIA INSURANCE CO. LTD., NO.40/3, GEETHA MANSION, K.G. ROAD, BENAGLURU, PIN-560 009.
... RESPONDENTS (BY SRI.K. SURESH,ADVOCATE FOR R2;
R1-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 27.02.2018) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.06.2015 PASSED IN MVC NO.1417/2014 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, 28TH ACMM, MACT, BENAGLURU, PARLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’S ARE COMING ON FOR FURTHER HEARING,THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT MFA No.7161 of 2015 is filed by the Insurance Company and MFA No.124 of 2016 is filed by the claimant. Both the appeals are directed against the judgment and award dated 05.06.2015 passed in MVC No.1417/2017 by the MACT, Bangalore, wherein a total compensation of Rs.4,89,193/- has been awarded to the claimant for the injuries sustained by him in a road traffic accident.
2. The facts of the case in brief are as follows:
On 14.12.2013, at about 7.15 p.m., the claimant was proceeding on his TVS XL moped bearing registration No.KA-05-HM-5372, near JHBCS Layout, 2nd Main Road, Kumaraswamy Layout, Bangalore. That time, the drive of i10 car bearing registration No.KA- 01-MD-2754 by driving the said car in a rash and negligent manner, dashed against the claimants moped. Due to the impact, the claimant sustained grievous injuries.
3. It is the case of the claimant that he took treatment as an in-patient for about 7 days and he was also advised regular follow up treatment and in view of the accidental injuries, he suffered permanent disability etc.
4. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.4,89,193/- with interest at 6% per annum under the following heads:
Injury pain and sufferings Rs.50,000-00 Loss of earning during Laid up period Rs.18,000-00 Medical expenses Rs.2,58,813-00 Loss of future earnings Rs.1,10,880-00 Loss of amenities Rs.20,000-00 Conveyance, nourishment, Food and attendant charges Rs.11,500-00 Future medical expenses Rs.20,000-00 Total Rs.4,89,193-00 5. The learned counsel for the claimant would contend that the claimant was working as a Secretary at Snooker Point, Kaderenahalli Circle, Bengaluru and according to the salary certificate, marked as Ex.P-8, he was earning a sum of Rs.34,800/-. He has suffered permanent disability to an extent of 16% to the whole body and therefore, the compensation of Rs.1,10,880/- awarded towards ‘loss of future income due to disability’ by assessing the income at Rs.6,000/- per month is on the lower side. It is his contention that the claimant is not able to do any work due to the disability suffered by him and he has lost the capacity to earn. He would also contend that the compensation awarded under all other heads are not commensurate with the injuries sustained and accordingly seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. The learned counsel appearing for the Insurance Company vehemently contended that the accident was solely on account of the rash and negligent riding by the claimant himself as he was riding his moped in a high speed and dashed against the car. He would place reliance on the spot sketch Ex.P-5 to contend that the claimant-injured without observing the traffic rules dashed against the car which was traveling from West to East. Therefore, he submits that the finding recorded by the Tribunal that the driver of the car was rash and negligent is not proper.
7. The learned counsel would further contend that the claimant has not lost his job as per his own evidence and therefore, even if there is any disability, there is no loss of future earnings. He also contends that there is no proof with regard to the payment of medical expenses by the claimant and therefore awarding compensation towards medical expenses without there being any evidence for having paid the said amount is not justified and accordingly he seeks to allow the appeal filed by the Insurance Company and to dismiss the appeal filed by the claimant.
8. The following points arise for consideration:
1. Whether the appellant has proved that he sustained injuries in the road traffic accident occurred on 14.12.2013 at about 7.15 p.m. owing to the rash and negligent driving by the driver of the offending car bearing Regn. No.KA-01/MD- 2754 or whether there is contributory negligence on the part of the appellant?
2. Whether the Tribunal was justified in awarding a sum of Rs.2,58,813/- towards medical expenses?
3. Whether the total compensation awarded by the Tribunal deserves any modification?
9. It is the case of the appellant that on 14.12.2013 at about 7.15 p.m. while he was proceeding on his TVS XL moped bearing Regn. No.KA- 05/HM-5372 on JHBCS Layout, 2nd Main Road, Kumaraswamy Layout, Bengaluru, at that time, the car bearing Regn. No.KA-01/MD 2754 driven by its driver in a rash and negligent manner dashed against the moped and, in the process, he sustained grievous injuries.
10. Ex.P1 is the FIR and Ex.P6 is the copy of the charge sheet. FIR has been registered against the driver of the car. Perusal of the FIR goes to show that the accident took place at a junction near JHBCS Layout, 2nd Main Road. Charge sheet at Ex.P6 goes to show that after completing the investigation, the same was filed against the driver of the car. The charge sheet material reveals that after completion of investigation, the Investigating Officer confirmed the rash and negligent driving by the driver of the car. The Tribunal has observed that if at all, the accident was not due to the negligence of the driver of the car, he could have intimated to the police by lodging the complaint. On the other hand, he pleaded guilty.
11. Perusal of the sketch marked at Ex.P5 goes to show that the car was moving from west to east and moped was moving from south to north and the accident had taken place at a junction. The moped had almost crossed the road towards Subrahmanyapura. The impact of the accident goes to show that there is negligence on the part of the driver of the car in question. On an overall appreciation of the oral and documentary evidence on record, the Tribunal was justified in holding that the accident was on account of the rash and negligent driving by the driver of the car. Accordingly, point No.1 is answered.
12. According to the claimant, he was working as Secretary at Snookers Point and earning a sum of Rs.34,800/- p.m. The salary certificate is marked as Ex.P8. The accident has occurred on 14.12.2013. The salary certificate was issued on 1.4.2013. The appellant has not examined any person, who has issued the said salary certificate to speak about his income so as to corroborate his evidence. According to him, apart from the said income, he was having an additional income of Rs.8,000/- to Rs.10,000/- by doing part time job. However, there is no evidence even with regard to the same. The Tribunal has assessed the income of the appellant at Rs.6,000/-
p.m. and after assessing the disability to an extent of 14% to the whole body, applying the multiplier 11, has awarded a sum of Rs.1,10,880/- towards loss of future income due to disability.
13. The appellant has been examined himself as PW1. In the cross-examination, he has stated that he is not doing any work. However, he admits that he has not been removed from service. The appellant has failed to establish that he is unable to do his work on account of the injuries suffered by him, on the other hand, it is his own admission that he has not been removed from service. There is no document to show that he was removed from the service and it cannot be said that the appellant has lost his job and that there is future loss of income. However, it is to be seen that according to PW2, the appellant has suffered disability to an extent of 14% to the whole body. Looking at Ex.P7 – wound certificate, Ex.P9 – discharge summary and Ex.P17 – IP records, the same reveal that he has suffered distal end radius fracture left wrist and tibial condyle fracture left knee. He has undergone ORIF with LCP T plate and screws fracture left proximal tibia and CRIF with K wires and below elbow plaster cast for left distal radius. He was discharged with the advice of follow up treatment. Considering the same, a sum of Rs.1,00,000/- is awarded as against Rs.1,10,880/- towards loss of future income due to disability and loss of amenities.
14. Ex.P10 is the three medical bills amounting to Rs.23,844/-. Ex.P12 is IP bill of Manipal Hospital for Rs.1,02,581/-. Further, thirty medical bills including ambulance charges to the tune of Rs.1,40,745/- is marked as Ex.P13. The Tribunal after observing that the bills at Sl.Nos.4, 10 and 22 pertain to ambulance charges and bill at Sl.No.30 pertains to paper publication charges, has not awarded the said sum as indicated therein and awarded a total compensation of Rs.2,58,813/- towards medical expenses.
15. The contention of the learned counsel for the Insurance Company that there is no proof with regard to the payment towards such medical bills and the appellant has not proved that it is he who has paid the medical bills, cannot be accepted. The medical bills have been produced by the appellant and there is nothing elicited in the cross-examination of the appellant so as to disprove the same. It is also not the case of the Insurance Company that any organization has incurred the medical expanses borne by the appellant. The respondent has failed to establish that the appellant/claimant is not entitled for the medical expenses.
16. The Tribunal has awarded a sum of Rs.20,000/- towards loss of amenities. The compensation awarded under the said head is enhanced from Rs.20,000/- to Rs.30,000/-, in view of the injuries sustained and the disability suffered by the appellant.
17. The compensation awarded under all other heads are just and reasonable and does not call for interference. Hence, the appellant is entitled for a total compensation of Rs.4,88,313/- as against the compensation of Rs.4,89,193/- awarded by the Tribunal. The points No.2 and 3 are answered in the affirmative. Accordingly, I pass the following:
ORDER MFA No.7161/2015 filed by the Insurance Company is allowed in part.
MFA No.124/2016 filed by the claimant is hereby dismissed.
The judgment and award dated 05.06.2015 passed in MVC No.1417/2014 on the file of the II Additional Small Causes Judge & XXVIII ACMM, MACT, Bengaluru, is hereby modified.
Appellant is entitled for total compensation of Rs.4,88,313/- as against Rs.4,89,193/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization (future medical expenses of Rs.20,000/- will not carry interest).
The amount in deposit shall be transmitted to the Tribunal.
The Insurance Company shall deposit the entire amount within a period of four weeks from the date of receipt of copy of this judgment.
On deposit, 75% of the amount shall be released to the appellant and the remaining 25% shall be invested in fixed deposit in any nationalized or scheduled bank for a period of three years.
Sd/- JUDGE Snc/Bkm