IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL M.F.A. NO.5102 OF 2010 (MV) BETWEEN:
V. Govindaraju S/o Venkateshappa, Aged about 41 years, R/at No.24, Kuvempunagar, Bengaluru District. …Appellant (By Sri. Pavana Chandra Shetty .H, Advocate) AND:
1. Madava Maheshwaram 1457, Jalavayuvihar, Kammanahalli Main Road, Levelli Road, Bengaluru – 560 084.
2. The Manager HDFC General Insurance Co. Ltd., Raman House, H.T. Parekh Marg, 169, Backbay, Reclamation, Mumbai. …Respondents (By Sri. D. Vijaya Kumar, Advocate for R-2 Notice to R-1 dispensed with vide order dated 29.03.2011) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 21.04.2010 passed in MVC No.5437/2007 on the file of I Additional SCJ & MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Admission this day, Court made the following:-
O R D E R The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by the Motor Accident Claims Tribunal, Bengaluru (SCCH-11) (hereinafter referred to as ‘the Tribunal’ for short) by order dated 21.04.2010 in MVC No.5437/2007.
2. Though this appeal was posted for admission, with the consent of the learned counsel appearing on behalf of both parties, it was heard finally.
3. The brief facts leading to the case are that, on 11.06.2007 at about 10.10 a.m., appellant- Sri. V. Govindaraju was going on the left side of the road at 3rd Cross edge, Channapatna, B.M. Road. At that time, a car bearing registration No.KA-03-MB-3770 came behind him from Mysuru in a high speed with rash and negligent manner and dashed against the claimant. As a result of the same, he fell down and sustained injuries including fracture.
4. Immediately after the accident, the claimant was shifted to General Hospital, Channapatna. After first aid, he was shifted to NIMHANS hospital and then to KIMS hospital and there he took treatment. It is the specific contention of the petitioner that because of the said injuries, he has suffered loss and as such, he has filed this case for claiming the compensation.
5. Though notice was served to respondent No.1 he was placed exparte. Respondent No.2-Insurance Company appeared and filed objections denying the contents of the petition. It is further contended that the petitioner himself has contributed to the said accident and as such, insurance company is not liable to pay compensation.
6. On the basis of the above pleadings, the Tribunal has framed the following issues:
1. Whether petitioner proves that he sustained grievous injuries in a road traffic accident on 11.06.2007, at 10.10 a.m. on 3rd Cross, Channapatna, B.M. Road, due to rash or negligent driving by the driver of car bearing No.KA-03-ME-3770?
2. Whether the petitioner is entitled to for compensation and if so, what amount and from whom?
3. What order?
7. In order to prove the case, petitioner himself got examined as PW.1 and got marked the documents at Ex.P.1 to Ex.P.16 and also got examined the Doctor as PW.2 and got marked the document at Ex.P.17 and another Doctor got examined as PW.3 for the purpose of assessing the disability.
8. After hearing the parties to the lis, the Tribunal awarded a compensation of Rs.90,400/-. Being aggrieved by the said order, the present appeal has been preferred.
9. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2.
10. It is the specific contention of Sri. H. Pavana Chandra Shetty, learned counsel for the appellant that the judgment and award passed by the Tribunal is contrary to law and facts. The Tribunal ought to have awarded just and proper compensation for pain and sufferings. He further contended that the compensation awarded under various heads is also on the lower side. He further contended that the petitioner was admitted in the hospital for more than 17 days and subsequently he has taken treatment and now he is also under treatment and as such, the amount awarded under the medical expenses is also on the lower side. He further contended that the Tribunal has not awarded any compensation for loss of future income and the doctor who has examined the claimant has issued disability certificate by saying that he has suffered 7% of disability to the whole body. This aspect has also not been considered by the Tribunal. He further contended that the amount of the compensation awarded on the head of conveyance, food, attendant charges and other incidental charges is also on the lower side. On these grounds, he prayed for enhancement of the compensation awarded by the Tribunal.
11. Per contra, Sri. D. Vijaya Kumar, learned counsel appearing for respondent No.2 vehemently argued and contended by substantiating the judgment and award passed by the Tribunal he further contended that the judgment and award which has been passed is just and proper and admittedly the claimant is working as a court employee and as such, he has not sustained any loss of income and even the compensation awarded by the Tribunal towards loss of income is on higher side. On these grounds, he prayed for dismissal of the appeal.
12. I have gone through the judgment and award of the trial Court and I have also perused the original records, which have been secured from the trial Court. On careful perusal of the records, it is found that there is no dispute with regard to the vehicle involved in the accident and the said vehicle has been insured with respondent No.2 – Insurance Company and the policy was in force as on the date of accident. The only question which has been raised before this Court is, whether the compensation awarded by the Tribunal is just and proper?
13. On perusal of records, the appellant- claimant has sustained the following injuries:
1. Fracture on left clavicle, 2. Fracture on 3, 4 and 5th ribs 3. Severe head injury, right fronto temporal region haemorregic joint 14. As could be seen from the records, there is a permanent disability and now that he is often getting pain in the left upper limb, there is deformity of left clavicle and there is restriction of joint movements of the left shoulder and difficulty to lift heavy objects using left upper limb.
15. As could be seen from the report at Ex.P.7- Discharge Summary, it shows that the petitioner was inpatient from 15.09.2009 to 20.09.2009 and he has sustained fracture of clavicle as well as fracture of 3, 4 and 5 ribs. By taking into consideration the injuries sustained and other aspects, the Tribunal has awarded the compensation on various heads as mentioned below:
1. Pain and sufferings : Rs.25,000.00 2. Loss of happiness and future amenities : Rs.25,000.00 3. Loss of income during the treatment period : Rs.9,400.00 4. Incidental charges : Rs.6,000.00 5. Medical expenses : Rs.25,000.00 Total : Rs.90,400.00 16. Learned counsel for the appellant would contend that the Doctor who has been examined before the Tribunal has deposed that the petitioner is suffering from permanent disability of 21% to the particular limb and 7% to the whole body.
17. As could be seen from the records, the petitioner is working as a Court staff and his service has been continued and no records have been produced to show that because of the said 7% of disability his income will be affected in future. Under the facts and circumstances of the case, I feel that appellant-claimant is not entitled for any loss of future income under the said head.
18. However, as could be seen from the records, the petitioner has suffered the fracture of clavicle as well as fracture of 3, 4 and 5th ribs and he has been hospitalized for a period of 17 days and in that event he might have suffered some pain. In this context, the compensation awarded by the Tribunal appears to be on the lower side and it requires to be enhanced. In that light, Appellant-claimant is entitled to an amount of Rs.40,000/- for pain and suffering. As could be seen from the records, the appellant-claimant has taken the treatment for a period of 17 days and thereafter he might have also taken rest for a minimum period of 1 ½ to 2 months and in that event, attendants might have attended to the appellant. In that light, he is also entitled for an amount of Rs.10,000/- for attendant and other incidental charges. Insofar as the compensation awarded under the loss of happiness and future amenities and loss of income during the period of treatment, medical expenses and other incidental charges the Tribunal after considering material on records has rightly come to the conclusion and do not require any interference.
19. Keeping in view of the above facts and circumstances, the appellant-claimant is entitled to an additional compensation of Rs.25,000/- with 6% interest.
Accordingly, I proceed to pass the following ORDER i) The appeal is partly allowed.
ii) The judgment and award passed by the Tribunal in MVC No.5437/2007 is modified as indicated above.
iii) The appellant-claimant is entitled to a total compensation of Rs.1,15,400/- with interest at 6% per annum from the date of petition till realization. Since, already the Tribunal has awarded Rs.90,400/-, after deducting the same the appellant-claimant is entitled to additional compensation of Rs.25,000/- with interest at 6% per annum.
iv) Respondent No.2 – Insurance Company is directed to deposit the compensation awarded by the Tribunal as well as the enhanced compensation awarded by this Court within a period of six months from the date of receipt of certified copy of this order.
Registry is directed to draw the award and send back the lower Court records forthwith.
Sd/- JUDGE MBM