1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.5097/2013 (MV)
BETWEEN:
SRI NAGARAJU,
S/O LATE PAPEGOWDA,
AGED ABOUT 65 YEARS,
R/AT # 2298, 2ND CROSS,
VINAYAKANAGARA,
MYSURU-570 001. ... APPELLANT
(BY SRI K.B.K. SWAMY, ADVOCATE)
AND:
1. SRI BASAVARAJU,
S/O NINGAIAH,
AGED ABOUT 26 YEARS,
DRIVER CUM OWNER OF VEHICLE
BEARING NO KA-09-EE-7759,
R/AT # 142, 4TH CROSS,
VIJAYANAGARA 3RD STAGE,
MYSURU-570 001.
2. UNITED INDIA INSURANCE CO. LTD.,
# PRINCE OF WALES ROAD,
NEAR BALLAL CIRCLE,
CHAMARAJAPURAM,
MYSURU-570 001.
POLICY BEARING NO:
078600/31/08/01/00004658. ... RESPONDENTS
(BY SRI JWALA KUMAR, ADVOCATE FOR R-2;
VIDE ORDER DATED 31.5.2018,
SERVICE OF NOTICE TO R-1 IS HELD SUFFICIENT)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.01.2013 PASSED
IN MVC.NO.374/2012 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-III, MACT, MYSURU, PARTLY ALLWOING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THROUGH 'VIDEO
CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Though this matter is listed for admission today, with the consent of both the learned counsel it is taken up for final disposal.
2. This appeal is filed challenging the judgment and award dated 31.01.2013 passed in M.V.C.No.374/2012 on the file of the Fast Track Court - III and Additional MACT, Mysore ('the Tribunal' for short) questioning the quantum of compensation.
3. The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.
4. The factual matrix of the case is that the petitioner met with an accident on 31.10.2008 and the accident in question was 3 caused due to rash and negligent driving of the driver of the Bajaj CT-100 bearing registration No.KA-09-EE-7759. As a result, he has sustained permanent disability. It is also his case that he was earning Rs.4,500/- per month working as a clerk in Janahitha Consumer Co-operative Stores, Mysore and also earning Rs.1,00,000/- out of his agricultural property. The claim petition was opposed by the respondents by filing the written statement. The claimant in support of his claim examined himself as P.W.1 and P.W.2 doctor and got marked the documents at Exs.P.1 to 27. The respondents did not choose to lead any evidence before the Tribunal. The Tribunal after considering both oral and documentary evidence placed on record awarded compensation of Rs.1,49,400/- with interest at the rate of 6% per annum from the date of petition till the date of deposit except on future loss of earning. Being aggrieved by the judgment and award of the Tribunal, the present appeal is filed before this Court.
5. The learned counsel for the appellant would vehemently contend that the Tribunal has committed an error in awarding meager compensation under all the heads. The learned counsel would contend that an amount of Rs.30,000/- 4 was awarded under the head medical expenses even though the claim was to the tune of Rs.1,40,321/-. The Tribunal disbelieving the medical bills which have been produced and without assigning any reason in paragraph No.17, awarded global compensation of Rs.30,000/- towards medical expenses.
6. The learned counsel would contend that incidental expenses of Rs.10,000/- was awarded even though the claimant was hospitalized thrice and he was an inpatient for more than 30 days. The Tribunal has committed an error in calculating future loss of income by taking the disability at 11%. Hence, it requires to re-visit and re-calculate the compensation.
7. Per contra, the learned counsel for respondent No.2 would contend that this is an accident of the year 2008 and the Tribunal has taken note of the nature of injuries and awarded just and reasonable compensation under the head pain and suffering. However, the learned counsel does not dispute with regard to not considering the medical expenses. The learned counsel would contend that on the other heads also, particularly insofar as loss of income is concerned total Rs.69,400/- has been awarded. The Tribunal ought not to have awarded any 5 compensation under the head future loss of income when the claimant continued with his job. Apart from that, an amount of Rs.10,000/- is awarded towards permanent disability and the same is not permissible.
8. Having heard the arguments of the learned counsel for the appellant and the learned counsel for respondent No.2, the point that arise for the consideration of this Court is:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation as contended?
9. Having heard the respective learned counsel and on perusal of the records, the injured has been examined as P.W.1 and got marked the wound certificate as Ex.P.7, medical bills as Ex.P.8, three discharge summaries as Ex.P.9, pay certificate as Ex.P.12, OPD bills as Ex.P.13, RTC as Ex.P.14, ryot and plot weighment slip as Ex.P.15 to show that he was growing sugarcane. Apart from that, VA certificate is marked as Ex.P.16. The case sheet is marked as Exs.P.17 and 18 to show that he was an inpatient and discharge card is marked as Ex.P.22. The OPD bills and medical bills are marked as Exs.P.24 to 26. Having considered the material placed before the Court, it is not 6 in dispute that he was admitted thrice in the hospital and took treatment. The wound certificate issued by Kamakshi Hospital discloses that he has sustained fracture of lateral condyle on left tibia. In paragraph No.16 of the judgment, period of hospitalization is also discussed by the Tribunal. However, the Tribunal failed to take note of the nature of injuries and also period of treatment while awarding the compensation under the head pain and suffering and only an amount of Rs.30,000/- was awarded and the same has to be enhanced. The accident was taken place in 2008, hence an amount of Rs.40,000/- is awarded as against Rs.30,000/- under the head pain and suffering.
10. The Tribunal while considering the medical expenses awarded global compensation of Rs.30,000/- inspite the medical bills are produced to the extent of Rs.1,40,321/- and the three discharge bills are also produced by Kamakshi Hospital which comes to Rs.44,690/-. Apart from that, medical bills are produced in respect of three admissions and the same has also not been considered by the Tribunal. The Tribunal while considering the medical bills awarded global compensation without even discussing in respect of the medical bills. Hence, it requires interference of this Court. On perusal of the medical 7 bills it is to the tune of Rs.1,40,321/-. Hence, an amount of Rs.1,40,321/- is awarded as against Rs.30,000/- under the head medical expenses.
11. The Tribunal while calculating the loss of income during laid up period awarded an amount of Rs.10,000/-. The Tribunal taking the income of Rs.5,000/- per month awarded an amount of Rs.59,400/- towards future loss of income. Here is a case where the claimant is an employee and in support of his claim he has produced Ex.P.12 pay certificate which discloses that he was earning Rs.4,500/- per month. The claimant has also produced other documents of RTC as Ex.P.14 and also ryot and plot weighment slip as Ex.P.15 to show that he was growing sugarcane. VA certificate is produced as Ex.P.16. Having taken note of these documents also apart from his salary the Tribunal ought to have considered the loss of income at Rs.7,000/- per month. But the Tribunal has taken note of the future loss of income considering the evidence of the doctor P.W.2. The approach of the Tribunal is erroneous when he has continued the job and no document is placed before the Tribunal that he had discontinued job and ought not to have considered the disability and instead of disability ought to have awarded compensation 8 under the head loss of amenities. Having taken note of that the claimant was an inpatient for a period of 25 days thrice from 2008 to 2012 and took treatment in interval period, I am of the opinion that considering nature of injury, loss of income for the laid up period should be taken for four months. Taking the monthly income at Rs.7,000/-, loss of income during laid up period comes to Rs.28,000/- (Rs.7,000/- x 4).
12. The Tribunal has awarded an amount of Rs.10,000/- under the head permanent disability and I have already pointed out that the when the claimant has continued the job, the Tribunal ought not to have awarded any compensation under the head permanent disability and ought to have awarded under loss of amenities. Having taken note of the evidence deposed by P.W.2, the claimant has to suffer the disability throughout his life. Hence, it is appropriate to award an amount of Rs.25,000/- under the head loss of amenities.
13. The Tribunal has awarded an amount of Rs.10,000/- under the head incidental expenses and I have already pointed out that the claimant was admitted thrice in the hospital and took treatment more than 25 days. When such being the case, 9 the Tribunal ought to have considered the same taking note of the period of treatment. Hence, It is appropriate to award an amount of Rs.20,000/- under the head incidental expenses including food and nourishment, conveyance and other incidental expenses.
14. In all, the claimant is entitled to a compensation of Rs.2,53,321/- as against Rs.1,49,400/-.
15. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 31.01.2013 passed in
M.V.C.No.374/2012 is modified granting
compensation of Rs.2,53,321/- as against
Rs.1,49,400/- with interest at 6% per annum from the date of petition till deposit.
(iii) The respondent No.2 is directed to pay the compensation amount with interest within eight weeks from today.10
(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.
Sd/-
JUDGE MD