IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO. 6125 OF 2015 (MV) BETWEEN Smt. Vanajakshmamma W/o Manjunatha Aged about 31 years R/At C/o Malleshwaiah Near Industrial Area Antharasanahalli Tumkur.
... Appellant (By Sri. Gopalkrishna N., Adv.) AND 1. M/s Alloy Tech Flat No.22E, 3rd Main 5th Cross, Attibele Industrial Area Anekal Taluk Bangalore District 562 107 Rep: by its Partner.
2. The United India Insurance Company Ltd., Branch Office, 1st Floor P B No.54, Jayadeva Complex 5th Floor, Opp: Hudson Circle B H Road, Tumkur Town Rep: by its Manager – 572 101.
... Respondents (By Sri. P. B. Raju, Adv. For Respondent No.2; Notice to Respondent No.1 is dispensed with) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 13.01.2015 passed in MVC No.1094/2012 on the file of the Principal Senior Civil Judge, MACT-X, Tumkur, 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 Though this appeal is listed for admission, with the consent of learned counsel for the parties, the appeal is heard for final disposal.
2. This appeal is preferred by the appellant/claimant against the judgment and award dated 13.01.2015 rendered by the Prl.Senior Civil Judge, MACT, Tumkur in MVC No.1094/2012 seeking enhancement of compensation.
The factual matrix of the appeal is as under:
3. It is stated in the claim petition that on 15.05.2012 the claimant was proceeding from the extreme left side of industrial road. When she was proceeding so in front of Mini Tech Factory, one mini lorry bearing registration No.KA-05-D-1952 came from back side in a rash and negligent manner and dashed against her. Due the said impact, she fell down and sustained grievous injuries. Therefore, she filed the claim petition before the Tribunal seeking compensation.
4. On service of notice, respondent No.1 did not entered appearance. Respondent No.2 insurer entered appearance, filed written statement denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings, the Tribunal framed the issues. In order to prove the claim, the claimant was examined as PW.1 and got examined the doctor as PW.2 and one more witness as PW.3 and got marked Exs.P1 to P264. On behalf of the respondent – insurer, RW.1 was examined and Ex.R1 was marked. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding compensation of Rs.2,55,600/- with interest @ 6% p.a. from the date of petition till realisation. Being not satisfied with the compensation awarded by the Tribunal, the appellant/claimant has preferred this appeal seeking enhancement of compensation, by urging various grounds.
6. Learned counsel for the appellant contends that the Tribunal has erred in not properly assessing the permanent physical disability and loss of earning capacity at higher than 10% considering the medical records and evidence of PW.2- Medical officer who treated the claimant and assessed the permanent disability at 25% with reference to the whole body. Further, it is contended that the compensation awarded by the Tribunal towards loss of amenities and pain and suffering is on lower side. The Tribunal has failed to consider the existing disabilities like difficulty to sit without support for long time, difficulty to do bending work and lift objects from ground, difficulty to walk long distance and etc. Further, the Tribunal has failed to consider that the claimant has sustained L1 vertebra fracture and crush injury to both thighs and has underwent surgery. The fracture sustained to L1 vertebra gives prolonged and permanent pain since it is the main backbone. Further, the Tribunal ought to have assessed the income of the claimant at higher rate instead of Rs.4,000/- p.m. considering the year of accident and avocation of the claimant as a daily wager and home maker. On all these grounds, learned counsel for the appellant prays for enhancement of the compensation by allowing the appeal.
7. Counter to the arguments advanced by learned counsel for the appellant, learned counsel for the respondent – insurer contends that the accident has not taken place due to negligence on the part of the driver of the offending mini lorry. There is violation of policy conditions and the insurer is not liable to indemnify the insured. It is further contended that the Tribunal, on appreciation of oral and documentary evidence on record, has rightly assessed the income of the petitioner and awarded just and fair compensation, and the same does not call for any interference and prays for dismissal of the appeal.
8. Keeping in view the arguments advanced by the learned counsel for the appellant and so also learned counsel for the respondent-insurance company stated supra, it is relevant to state that there is no dispute with regard to the injuries sustained by the appellant in a road traffic accident. Appellant who was examined as PW.1, in her evidence has stated that due to the actionable negligence of the driver of Mini lorry bearing Reg.No.KA- 05-D-1952, the accident has occurred and she has sustained grievous injuries. In order to substantiate her claim she has produced Ex.P1- FIR, Ex.P2 – charge sheet, Ex.P3 – wound certificate which reflects that she has sustained open wound on left thigh, open wound on lateral aspect of right thigh, multiple abrasion over left hand and leg, L1 compression fracture. As per the opinion of the Doctor, injury No.5 i.e., L1 compression fracture is grievous in nature. Ex.P6 is the discharge card issued by Siddhartha Hospital which shows that the claimant has taken treatment as inpatient from 15.05.2012 to 22.07.2012 wherein she has been treated for the L1 vertebra compression fracture as well as crush injury to both thigh region. Ex.P257 is the case sheet of Siddhartha Hospital. Ex.P259 is the x-ray. Exs.P12 to P118 are medical bills. Exs.P119 to 256 are the medical prescriptions.
9. PW.1 in her evidence has deposed that she was an employee at Myco Factory working as daily wager. She has produced her wage slip for the month of October 2011 at Ex.P9. The Tribunal by considering her avocation as a daily wager has taken the notional income at Rs.4,000/- per month and awarded Rs.24,000/- under the head loss of income during laid up period for a period of six months. But having regard to the year of accident as 2012 and in the absence of proof of income and according to the guidelines and illustrations of the lok adalath chart, the monthly income taken by the Tribunal is on the lower side and the same is enhanced to Rs.7,000/- p.m. Accordingly, the compensation under the head loss of income during laid up period is enhanced by another sum of Rs.18,000/-.
10. For the purpose of disability the claimant has led the evidence of PW.2, the treated doctor who has stated that after examination on 3.4.2014 the claimant was complaining of persistent low back pain, difficulty to do household manual work and thereby he has assessed disability at 50% to the spine and 25% to the whole body. But the Tribunal has taken disability at 10%. The same appears to be on lower side. The Tribunal ought to have noticed that the claimant had suffered fracture to the L1 compression fracture and claimant being a lady aged 28 years, definitely it leads to some physical disability and leads to discomfort as well as difficulty in discharging the work. Having regard to the evidence of the doctor and the nature of the injuries suffered, the disability is to be taken at 16%. Accordingly, the compensation under the head loss of income due to permanent disability would be Rs.2,28,480/-(Rs.7000 x 12 x 17 x 16%) as against Rs.81,600/- awarded by the Tribunal.
11. In sofar as the compensation awarded under discomfort, loss of amenities and unhappiness, the Tribunal has awarded Rs.20,000/- which is on lower side and the same is enhanced by another sum of Rs.15,000/-
having regard to the nature of injuries suffered by the claimant. Further, an additional sum of Rs.15,000/- is awarded towards future medical expenses keeping in view the evidence of Doctor and the documents available on record. However, the compensation awarded by the Tribunal under the other heads is just and reasonable and does not call for interference.
12. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Particulars Compensation awarded by MACT Compensation by this Court
Conveyance charges Food and nourishment charges 10,000 10,000 10,000 10,000 Attendant charges 10,000 10,000
Future medical expenses 10,000 25,000 Total 2,55,600 4,50,480 Thus, in all the claimant is entitled to a sum of Rs.4,50,480/- as against Rs.2,55,600/- awarded by the Tribunal, and the enhanced compensation would be Rs.1,94,880/-. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.1,94,880/- with interest @ 6% p.a. from the date of petition till realisation.
The impugned judgment and award rendered by the Tribunal in MVC No.1094/2012 is modified accordingly.
Respondent-insurer shall deposit the enhanced compensation with interest before the Tribunal within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, 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 DKB