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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.4766 OF 2019 (MV)
BETWEEN:
SMT.LAKSHMAMMA
W/O.JAVAREGOWDA
AGED ABOUT 64 YEARS
R/AT DARASIHALLI VILLAGE
BAGUR HOBLI
CHANNARAYAPATTANA TALUK
HASSAN DISTRICT - 573 201 ... APPELLANT
(BY SRI RAJAMMA SOORYAMBAIL, ADVOCATE)
AND:
1. SRI NAGESH B.P.
S/O.PUTTARAJU
MAJOR
R/AT BYALADAKERE VILLAGE
KASABA HOBLI
CHANNARAYAPATNA TALUK
HASSAN DISTRICT - 573 201
2. THE MANAGER
UNITED INDIA INSURANCE CO.LT.
MADHU COMPLEX
MYSURU ROAD
CHANNARAYAPATNA TOWN & TALUK
HASSAN DISTRICT - 573 201 ... RESPONDENTS
(BY SRI L.SREEKANTA RAO, ADVOCATE FOR R-2;
R-1 IS SERVED AND UNREPRESENTED)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT,
1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 29.12.2018 PASSED IN MVC NO.1606/2017 BY IV
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ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSSAN
DISTRICT (SIT AT CHANNARAYAPATNA) AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant challenging the judgment and award passed by IV Additional District and Sessions Judge, Hassan District (sit at Channarayapatna) in MVC.No.1606/2017 dated 29.12.2018. This appeal is founded on the premise of inadequacy of compensation.
2. Though this matter is listed for admission, with consent of learned counsel on both sides, matter is taken up for final disposal.
3. Parties to the appeal shall be referred to as per their status before the tribunal.
4. Brief facts of the case is as under:
On 09.01.2017 at 12.00 noon, when the claimant was walking with her son at Bagur Moodanahalli Road, near garden land Murthy of Bagur Village, a motor cycle bearing registration KA-13-X-5369 ridden by its rider came in a rash and negligent manner so as to endanger human life -3- and safety, dashed against the claimant, due to which, she suffered injuries to her body and immediately she was shifted to NDRK Hospital, Hassan, where she was admitted as an inpatient and spent huge amount towards medicine and other incidental expenditure amounting more than Rs.1,50,000/-.
4.1. It is stated that prior to the date of accident, the claimant was hale and healthy and was aged 62 years and was doing agriculture and animal husbandry and earning Rs.25,000/- p.m. Due to the injuries sustained claimant, has suffered permanent physical disability. Hence, she preferred a claim petition seeking compensation for the injuries suffered by her before the tribunal.
4.2. After service of notice to respondents, they appeared before the tribunal and filed their statement of objections denying the claim made by the claimant. Respondent No.1-owner of the vehicle pleaded that since motor cycle was insured with second respondent, any liability fastened on him would have to be indemnified by respondent No.2 as he had a valid insurance policy and a valid driving licence as on date of accident, whereas respondent No.2 took up the plea that the accident had -4- occurred due to fault of the claimant. Therefore, she was negligent and it did not occur due to the rash and negligent riding of the motor cycle. It was further pleaded that rider of the motor cycle did not have valid and effective driving licence and was not wearing a helmet as on the date of occurrence of accident. It also denied the income of the claimant and further pleaded that a false case was registered in collusion with the owner of the motor cycle. On the basis of these pleadings, respondent No.2 sought for dismissal of claim petition. The tribunal framed relevant issues for consideration on the basis of pleadings of the parties.
4.3. In order to substantiate the issues and to establish her case, the claimant got herself examined as PW.1 and got marked the documents as per Exs.P1 to P16 in support of her case. On the contrary, the respondents have not stepped into the witness box and did not produce any document in support of their case.
4.4. On the basis of material evidence both oral and documentary, the tribunal awarded compensation of Rs.2,20,000/- with interest @ 9% p.a. -5-
5. Being dissatisfied with the amount of compensation awarded by the tribunal, the claimant is before this Court in this appeal seeking enhancement of compensation awarded by the tribunal.
6. It is the vehement contention of learned counsel for claimant that the tribunal has grossly erred in not appreciating the material evidence both oral and documentary and has passed the erroneous order without considering the relevant income which is pleaded by the claimant in the claim petition. He further contends that under all other heads, the tribunal has erred in awarding meager compensation and same requires enhancement. On the basis of these submissions, he seeks to allow the appeal and consequently, enhancement of compensation.
7. Per contra, learned counsel for respondent-Insurer vehemently contends that the tribunal has awarded just and reasonable compensation on the basis of material evidence both oral and documentary and all the aspects of the matter has been considered by the tribunal while awarding compensation and same does not warrant interference by this Court. He further contends that in view of the fact that no material evidence has been produced -6- regarding proof of income, the tribunal has rightly awarded the global compensation of Rs.25,000/- towards permanent disability, other incidental heads and loss of amenities. It is his contention that no material is placed before the Court which would warrant interference to enhance the income. He further contends that with regard to other compensation awarded under the other heads, the tribunal has rightly awarded just and reasonable compensation. Hence, no interference is warranted at the hands of this Court. On the basis of these submissions, he seeks for dismissal of the appeal.
8. Having heard the submissions of learned counsel for appellant-claimant and learned counsel for respondent- Insurer, the points that arise for consideration are:-
"(i) Whether the tribunal has erred in awarding meager compensation?
(ii) Whether there is any need to enhance the compensation awarded by the tribunal?"
9. I am of the considered opinion that on consideration of entire material placed before the Court both oral and documentary, the claimant is entitled for marginal indulgence for enhancement of compensation for the reasons mentioned hereinbelow:
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(a) It is not in dispute that on 09.01.2017 at 12.00 noon, when the claimant was walking with her son at Bagur Moodanahalli Road, near garden land Murthy of Bagur Village, a motor cycle bearing registration KA-13-X-5369 ridden by its rider in a rash and negligent manner and dashed against the claimant. Due to which, the claimant sustained injuries and incurred the expenditure for treatment and to establish and prove this fact, the claimant has got examined herself and produced documents as per Exs.P1 to P9. These are the Police records in which the complaint-FIR and chargesheet has been laid as against rider of the motor cycle. These Police records are not in dispute and the same has not been challenged either by the rider of the motor cycle or respondents herein. Hence, it can be safely concluded that there is rashness and negligent driving by the rider of motor cycle leading to the accident, due to which, the claimant sustained tenderness and swelling over right parietal region scalp, contusion over right eye brow and CT scans dated 09.01.2017 and 11.01.2017 evidences left temporal parietal lobe, right frontal lobe, acute sub dural hematoma and left parietal lobe.
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(b) Now the point that arise for further consideration would be what should be the income to be taken for awarding compensation. Admittedly, no documentary evidence has been placed to show the proof of income by the claimant either before the tribunal or before this Court. In the absence of any such material, the Courts are left with no option to make a guess work Admittedly, in the present case on hand, no material has been placed before the Court to show that the claimant has suffered disability on account of accident. Hence, the tribunal has awarded Rs.25,000/- towards permanent disability, other incidental heads and loss of amenities etc.
(c) In the absence any material to the effect that the claimant has suffered disability, the tribunal has not awarded any compensation under the head of loss of future earning capacity. However, it is stated that the claimant was inpatient from 09.01.2017 to 17.01.2017 and to establish this fact, no discharge summary has been produced by the claimant. Apart from producing the medical bills and prescription, no material documents are produced to prove the fact of claimant having been admitted in the Hospital. Hence, the tribunal has awarded -9- Rs.25,000/- towards permanent disability, other incidental heads and loss of amenities etc. I am of the opinion that this amount is on the lower side and calls for interference of this Court for the reason that though the claimant may have not produced documentary evidence of being inpatient in the Hospital, the fact remains that she has suffered tenderness and swelling over right parietal region scalp, contusion over right eye brow and CT scan dated 09.01.2017 and 11.01.2017 evidences left temporal parietal lobe, right frontal lobe, acute sub dural hematoma and left parietal lobe. Under these circumstances, I deem it appropriate to award compensation of Rs.50,000/- under this head as against Rs.25,000/- awarded by the tribunal.
(d) Towards loss of pain and suffering, the tribunal has awarded Rs.30,000/-. In view of the fact that the claimant has suffered tenderness and swelling over right parietal region scalp, contusion over right eye brow and CT scan dated 09.01.2017 and 11.01.2017 evidences left temporal parietal lobe, right frontal lobe, acute sub dural hematoma and left parietal lobe and was inpatient 09.01.2017 to 17.01.2017, I deem it appropriate to award
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Rs.50,000/- under the head of pain and suffering as against Rs.30,000/- awarded by the tribunal.
(e) The tribunal has awarded Rs.25,000/- under the head of loss of income during laid up period, which calls for interference and in view of taking the notional income at Rs.11,000/- for the accident of the year 2017, I deem it appropriate to award Rs.33,000/- (Rs.11,000/- x 3) under the head of loss of income during laid up period as against Rs.25,000/- awarded by the tribunal.
(f) Towards medical expenses, the tribunal has awarded Rs.1,15,000/-. I do not find any reason to interfere with the same as it has been awarded as per actual bills as Exs.P10 and P11.
(g) Towards attendant charges, the tribunal has awarded Rs.25,000/-. I do not find any reason to interfere with the same and the same is retained.
(h) Towards loss of amenities, the tribunal has not awarded any specific amount, but has awarded a global amount of Rs.25,000/- along with disabilities and other incidental heads as stated above, which in my opinion an error committed by the tribunal. Hence, I deem it
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appropriate to award Rs.25,000/- under the head of loss of amenities.
(i) In view of the discussions made above and on the basis of the submissions of learned counsel, the claimant deserves enhancement of compensation as stated in the table below:
Heads Awarded by the Awarded by
tribunal this Court
(in Rs.) (in Rs.)
Pain and Suffering 30,000-00 50,000-00
Medical expenses 1,15,000-00 1,15,000-00
Permanent disability
and other incidental 25,000-00 50,000-00
heads loss of
amenities etc.
Attendant charges 25,000-00 25,000-00
Loss of income during 25,000-00 33,000-00
laid up period
Loss of amenities - 25,000-00
TOTAL 2,20,000-00 2,98,000-00
For the aforesaid reasons, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award passed by IV Additional District and Sessions Judge, Hassan District (sit at Channarayapatna) in MVC.No.1606/2017 dated 29.12.2018 is modified.
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iii) The claimant is entitled for total compensation of Rs.2,98,000/- as against Rs.2,20,000/- awarded by the tribunal;
iv) All other terms and conditions stipulated by the tribunal is not disturbed and is left intact;
v) The insurer shall pay the enhanced compensation amount with interest @ 6% before the tribunal within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/-
JUDGE LB