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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2021
PRESENT
THE HON’BLE MRS. JUSTICE S. SUJATHA AND
THE HON’BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.No.10131/2018 (MV)
BETWEEN:
A. NAGARAJ S/O. LATE ANANTH H.K. NOW AGED ABOUT 38 YEARS R/AT NO.29, PLOT NO.A3 KRISHNA LEELA APARTMENT 8TH MAIN, MALLESHWARAM BENGALURU - 560 073.
...APPELLANT
[BY SRI. T.C. SATHISH KUMAR, ADVOCATE (PHYSICAL HEARING)]
AND:
A. AMBAREESH S/O. ANJINAPPA HINDU, MAJOR R/O. KADUSONNAPPANAHALLI BIDARAHALLI HOBLI KANNUR POST BENGALURU EAST - 562 149.
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
RGIC. 20, EAST WING 5TH FLOOR
CENTENARY BUILDING
M.G. ROAD
BENGALURU - 560 001. ...RESPONDENTS
[BY SRI. B. PRADEEP, ADVOCATE FOR SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R2 (PHYSICAL HEARING) VIDE ORDER DATED 12.04.2021, NOTICE TO R1 IS DISPENSED WITH]
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 01.08.2018 PASSED IN MVC NO.666/2017 ON THE FILE OF THE XXI ACMM, AND XXIII ASCJ, MACT, BENGALURU (SCCH-25), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:
J U D G M E N T
Challenging the judgment and award dated 01.08.2018 passed in MVC No.666/2017 by the XXI A.C.M.M. & XXIII Addl. Small Causes Judge & MACT, (hereinafter referred to as ‘Tribunal’), Bengaluru, the appellant filed this appeal u/s 173 of the Motor Vehicles Act, 1988, seeking enhancement of compensation.
Though this appeal is listed for admission, with the consent of both parties, it is taken up for final disposal.
The brief facts as stated are that claimant was proceeding in cab bearing registration no.KA-05-AF-2848 on
3 Hare Krishna road on 02.07.2017, at 3.30 a.m., near Shivananda junction, a tipper lorry bearing registration No.KA-50-4428 driven by its driver in rash and negligent manner dashed against the cab. On account of the accident, claimant sustained grievous injuries. He was shifted to Columbia Asia Hospital, Yeshwanthapura, for treatment. Despite treatment, he suffered permanent physical disability and consequent loss of earning capacity. Hence, he filed the claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘Act’) against owner and insurer of tipper lorry.
In response to summons, respondents no.1 - and 2, owner and insurer respectively entered appearance and filed separate written statements.
Respondent No.1 denied occurrence of accident on account of negligence of driver of Tipper Lorry, but stated that it was insured with respondent No.1 and policy was in force at the time of accident, hence sought for fastening of liability if any, on respondent No.2 - insurer.
Respondent no.2 admitted issuance of policy, subject to terms and conditions and contended that as driver was not
4 holding valid and effective driving licence at the time of accident, there was violation of terms and policy. It further contended that accident was occurred due to negligence of driver of cab in which claimant was traveling. Hence, owner and insurer of cab were necessary parties to the petition. It was further contended that petition was bad for non-compliance of Sections 134(c) and 158(6) of the Act. Hence sought for dismissal of petition.
Based on above pleadings, following issues were framed: 1. Whether the Claimant proves that, the has sustained injuries on account of road traffic accident took place near Shivananda Junction, Harekrishna Road, Bengaluru, due to rash and negligent driving of the driver of the Tipper Lorry bearing Reg.No.KA-50-4428 dated 02.07.2016 at about 00.30 a.m., as alleged in the petition? 2. Whether the Claimant is entitled for Compensation? If so, what is the quantum? From whom payable? 3. What order or award?
In order to establish his case, claimant examined himself as PW1. The medical record keeper at Columbia Hospital
5 was examined as PW2 and Dr.S.U. Shivaprakash was examined as PW3. Exs.P.1 to P.25 were marked. On behalf of respondents, one witness was examined as RW1 and copy of the insurance policy was marked as Ex.R.1.
On consideration, tribunal answered issue no.1 in affirmative; issue no.2 partly in affirmative and issue no.3 by allowing the claim petition in part, awarding compensation of Rs.3,41,200/- against owner and insurer of offending vehicle. Not satisfied with quantum of compensation, claimant is in appeal.
Shri. T.C. Sathishkumar, learned counsel for claimant- appellant submitted that the award passed by the tribunal was not in consonance with facts of the case and evidence on record. The assessment of compensation was not commensurate to the injuries sustained. It was specifically contended that as on date of accident, claimant was 37 years of age, working as Vice- President of Goldman Sachs Services Pvt. Ltd., and earning Rs.30,00,000/- per annum. Due to permanent physical disability sustained, he was unable to attend his work and lost earning
6 capacity. It was further contended that claimant had sustained grievous injuries like “Crush injury of the right thigh - Glubeal muscles, soft tissue swelling over left ankle joint and foot right fracture, Right leg Rhabdmyolysis, Fracture of left lateral 3rd clavicle, Hematoma over left side posterior parietal scalp”
However, tribunal awarded meager sum of Rs.80,0000/- towards ‘pain and suffering’. It was further contended that though disability assessed by PW3 was to an extent of 41%, the tribunal awarded a meager amount of Rs.20,000/- towards ‘loss of amenities’. It was submitted that the tribunal did not award adequate amount towards ‘loss of income during period of treatment’ and towards ‘incidental charges’.
On the other hand, Shri. P Pradeep, Advocate for Sri. H.N. Keshava Prashant, learned counsel for respondent- Insurer, supported the award and opposed enhancement. It was contended that claimant was working as Vice-President in a private company and admittedly, continued in service. Therefore, no loss of earning was occasioned to justify claim petition. It was submitted that on an overall consideration, the award was adequate and opposed for enhancement.
7 13. From the above submissions, occurrence of the accident, involving the insured vehicle, due to rash and negligent driving of its driver, claimant sustaining grievous injuries and permanent physical disability are not in dispute. Issuance of the insurance policy and its validity as on date of accident are also not in dispute. The insurer has not preferred appeal. Therefore, liability of insurer to pay compensation is also not in dispute. The claimant is seeking for enhancement. Therefore, the only point that arise for our consideration is: “Whether claimant is entitled for enhancement of compensation as sought for?”
Based on police investigation records, viz., FIR, complaint, charge sheet, spot sketch, spot panchanama, Motor Vehicle Inspector’s report and MLC intimation marked as Exs.P.1 to P.4, P21 and Ex.P.22 respectively, the tribunal has held that accident occurred due to rash and negligent driving by driver of insured vehicle. The insurer has not disputed its liability by filing appeal.
In so far as quantum of compensation, claimant has produced his pay-slip and income tax statements as per Exs.P.12, P.14 and P.15 respectively. As per Ex.P.12, monthly income of
8 claimant was 1,17,213/-. But, admittedly, claimant continued in service. Therefore, there is no loss of earning. Hence, he would not be entitled for compensation towards same. But, claimant would be entitled to compensation under other heads. As per Ex.P.5 - wound certificate, claimant sustained following injuries: (1) Fracture of the clavical left side (lateral third), (2) Crush injury of the right thigh - Glubeal muscles, (3) Hemotoma over left side posterior parietal scalp, (4) Soft tissue swelling left ankle joint and foot right fracture and (5) Right leg rhabdmyolysis.
The claimant has also produced treatment records from Columbia Asia Hospital, Yeshwanthpur, where he took inpatient treatment from 02.07.2016 to 29.07.2016. He underwent fasciotomy and skin grafting. Considering the same, award of Rs.80,000/- towards ‘pain and suffering’ would be adequate. Though claimant produced medical bills for more than Rs.5,19,000/-, it was elicited during his cross-examination that he was reimbursed a sum of Rs.4,19,000/- through medical insurance. The tribunal awarded sum of Rs.1,03,984/- remaining amount spent towards ‘medical expenses’. Therefore, there is
9 complete reimbursement. Hence, there is no scope for enhancement.
Considering period of inpatient treatment, tribunal has awarded a sum of Rs.1,17,213/- towards ‘loss of income during laid-up period’. Claimant sustained fractures. Apart from inpatient period, he would require some time for recuperation. It would be reasonable to consider two months for the same. Though, it is contended that he had availed leave for the said period, but, claimant has lost leave standing to his credit, which he could have encashed or used for some other purposes. Therefore, he would be entitled to compensation for the said period. Thus, a sum of Rs.2,34,426/- (Rs.1,17,213/- X 2), is awarded.
As per evidence of PW3, claimant sustained permanent physical disability to an extent of 41% to whole body. Though, he may not be entitled to compensation towards functional disability, but entitled to compensation towards ‘loss of amenities’ on substantial terms. Considering the age of claimant and nature of permanent physical disability, sustained, it would
10 be just and reasonable to award a sum of Rs.1,50,000/- towards ‘loss of amenities’.
The claimant has taken inpatient treatment for a period of 27 days. Thereafter, he was confined to wheel chair and crutches for some time during which he would have engaged attendant. Therefore, award of Rs.20,000/- towards ‘attendant and other incidental charges’ would be grossly inadequate. In our considered opinion, it would be just and proper to award a sum of Rs.50,000/- instead.
Thus, claimant is entitled to reassessed compensation as under 1. Pain and suffering Rs.80,000/- 2. Medical expenses Rs.1,03,984/- 3. Loss of future income Rs.2,34,426/- 4. Loss of amenities Rs.1,50,000/- 5. Incidental charges Rs.50,000/- Total Rs. 6,18,410/-
Accordingly, claimant is entitled for reassessed compensation of Rs.6,18,410/- as against Rs.3,41,200/-. The point for consideration is answered partly in the affirmative as above.
11 21. Hence the following : ORDER i) The appeal is allowed in part. ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.6,18,410/- (Rupees six lakhs eighteen thousand four hundred and ten only) as against Rs.3,41,197/- with interest at the rate of 6% per annum from the date of petition till its realization without disturbing the rate of interest of 8% awarded on 3,41,197/- by the tribunal from the date of the petition till its realization. iii) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact. iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order. v) The modified compensation amount shall be disbursed in terms of the order of the Tribunal. vi) Draw modified award accordingly.
12 vii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.
Sd/- JUDGE
Sd/- JUDGE
Psg*