Karnataka High Court
Sri Ravinder vs The Regional Manager on 2 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24903
MFA No. 6352 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 6352 OF 2021 (MV-I)
BETWEEN:
SRI. RAVINDER
S/O SRI. SUBRAMANI D.K.,
AGED ABOUT 31 YEARS,
R/AT C/O CHANDRAKALA, 1ST MAIN,
1ST CROSS, VINAYAKANAGAR IAF POST,
BANGALURU - 560 063
...APPELLANT
(BY SRI. ANIL KUMAR M., ADVOCATE)
AND:
1. THE REGIONAL MANAGER
RELIANCE GENERAL INS CO. LTD.,
UNNATI ARCADE, 5/111 AND 6/112,
Digitally signed by
1ST FLOOR, 1ST BLOCK,
VEDAVATHI A K DR. RAJKUMAR ROAD,
Location: High (1ST MAIN ROAD),
Court of
Karnataka RAJAJINAGAR,
BENGALURU - 560 010.
2. MR. VENKATARAMAN.N.
S/O SRI. NARASIMHA IYER,
MAJOR, NO.25, DAMODAR MUDLLIAR STREET,
ULSOOR, BANGALORE NORTH,
BENGALURU - 560 008.
...RESPONDENTS
(BY SRI. HOLEBASAPPA C. BETSUR, ADVOCATE FOR R2;
VIDE ORDER DATED:19/7/2023, NOTICE TO R2 IS
DISPENSED WITH)
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NC: 2024:KHC:24903
MFA No. 6352 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 09.12.2019 PASSED IN MVC NO. 6048/2017
ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE
AND ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 09.12.2019 passed in MVC No.6048/2017 passed by the IX Additional Small Causes and Additional MACT., Bengaluru (SCCH-7), (for short hereinafter referred to as the 'Tribunal') seeking for enhancement of compensation.
2. Heard the arguments of learned counsel on both the sides.
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NC: 2024:KHC:24903 MFA No. 6352 of 2021
3. The ranks of the parties before the Tribunal is retained for the sake of convenience.
4. The case of the appellant/petitioner is that petitioner has filed the claim petition under Section 166 of I.M.V. Act for claiming compensation for the injury sustained by him in the road traffic accident occurred on 09.08.2017. It is alleged that on the said date at 10.15 a.m., when he was proceeding in a Motor Cycle bearing registration No.KA-04-HR-0267 on B.B. Road Service Road, Baglur, Bangalore near BSF, a lorry bearing registration No.KA-03-3474 came in a rash and negligent manner and dashed the petitioner. Due to which, he fell down and sustained grievous injuries. Immediately, he was taken to the Apurva Hospital, Bengaluru and was treated as an inpatient and he has suffered grievous injuries, communited left clavicle fracture, right distal radius fracture and right 2nd toe amputation. Due to the injuries suffered, he is unable to attend the job for almost 5 months and he is suffering from disability. Hence, prayed for compensation.
5. The respondent No.2 was placed an exparte. Respondent No.1-insurer has appeared and filed statement of -4- NC: 2024:KHC:24903 MFA No. 6352 of 2021 objections by denying the rash and negligent driving of the driver of the offending vehicle, age, occupation and income of the petitioner and also contended that the driver of the vehicle did not have valid and effective driving license at the time of driving the vehicle and has violated the terms and conditions of the policy. Hence, prays for dismissal of the petition.
6. Based upon the pleadings, the Tribunal framed the following issues:-
1. Whether the Petitioner proves that the accident occurred due to rash and negligent act of driver of Lorry bearing registration No.KA-03-3474 and in the said accident Petitioner sustained injuries?
2. Whether the Petitioner is entitled for compensation? if so, to what extent and from whom?
3. What Order or Award?
7. To prove the case, the petitioner himself was examined as PW-1 and also examined the Doctor as PW-2 and got marked 20 documents as Exs.P.1 to 20. The respondents have not lead any evidence nor got marked any documents. -5-
NC: 2024:KHC:24903 MFA No. 6352 of 2021
8. After hearing the arguments, Tribunal has answered issue No.1 in the Affirmative, issue No.2 in the Partly Affirmative and allowed the petition in-part by awarding compensation of Rs.2,84,116/- under various heads as under:
Particulars Amount
in Rs.
For pain and sufferings, mental 50,000/-
agony
Actual medical expenses 1,54,116/-
For Special diet and 10,000/-
Conveyance.
Loss of amenities 50,000/-
Future medical expenses. 20,000/-
Total 2,84,116/-
9. Being aggrieved by the judgment and award passed by the Tribunal, the claimant is before this Court.
10. Learned counsel for the appellant has contended that the petitioner has suffered communited left clavicle fracture, right distal radius fracture and right 2nd toe amputation. The Tribunal has not granted any compensation towards 'loss of income due to disability'. The Doctor has assessed 50% -6- NC: 2024:KHC:24903 MFA No. 6352 of 2021 disability to the whole body but the Tribunal has not awarded any compensation.
11. Compensation awarded by the tribunal under the head 'loss of amenities' is very meager and for future medical expenses he may require Rs.45,000/-. But the Tribunal has awarded only Rs.20,000/-, which is on the lower side. Even the compensation awarded under the head 'loss of income during laid up period' is also not just and proper even though he has got marked Ex.P.9 - letter issued by the employer. He has not attended the duty for 144 days. Hence, prays for enhancing the same.
12. Per-contra, learned counsel for the respondents has objected the appeal contending that there is no loss of future income due to disability and the petitioner is the Central Government Employee and he has resumed the job from January, 2018 and continued his work and there is no loss of income. The Tribunal has considered all the aspects and granted compensation towards pain and suffering. Even though the petitioner has obtained medical reimbursement from his employer but he has claimed Rs,1,54,116/- the same was already deposited by the respondents. Therefore, it is -7- NC: 2024:KHC:24903 MFA No. 6352 of 2021 contended that there is no need to enhance any compensation. He has also contended that the author of the Ex.P-9 is not being examined. Therefore, the Tribunal has rightly considered the document and not awarded any compensation towards 'loss of income during laid up period'. Hence, prays for dismissing the appeal.
13. Having heard the arguments, perused the records the point that arises for consideration is:-
Whether the appellant is entitled for enhancement of compensation. If so, to what extent?
14. On perusal of record, the accident occurred on 09.08.2017 due to the rash and negligent driving of the lorry by its driver is not in dispute. Due to which, the petitioner sustained grievous injury. Exs.P-1 to 6 are the police documents regarding accident and Ex.P-7 is the Wound Certificate, which reveals that due to the accident, the petitioner has suffered injuries, which are grievous in nature. He was said to be admitted in the hospital for 6 days and has taken treatment as an inpatient.
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NC: 2024:KHC:24903 MFA No. 6352 of 2021
15. With regard to the income, the claimant was earning Rs.30,000/- per month as per Ex.P-8 - pay slip and he is a Central Government Employee and after leave period, he has resumed to his service from January, 2018. Such being the case, there is no loss of future income due to the disability. However, the petitioner has suffered grievous injuries such as communited left clavicle fracture and he has undergone surgery. Later the implants were removed. K-wire fixation was done to right distal Radius of petitioner and K-wire is not yet removed. However, he requires future medical treatment.
16. Learned counsel for the appellant submits that petitioner has not claimed reimbursement of medical expenses. However, if the appellant/petitioner being a Government employee normally, he is entitled for the reimbursement for the medical expenses upon the original documents are produced. Here, there is no rebuttal evidence by the respondents' side to show that he has claimed any medical expenditure from his employer. Such being the case, the Tribunal has rightly granted Rs.1,54,116/- towards medical expenses. -9-
NC: 2024:KHC:24903 MFA No. 6352 of 2021
17. In so far as pain and sufferings and mental agony, the Tribunal has awarded Rs.50,000/- and Rs.10,000/- towards special diet and conveyance. Hence, it requires no interference. However, the loss of amenities have been granted at Rs.50,000/-. The petitioner being Government employee and Mechanic, he has lost one of the finger on the right foot. Such being the case, it has to be properly compensated for loss of finger. Therefore, I proceed to award Rs.50,000/- towards the loss of finger.
18. With regard to the 'future medical expenses' Rs.20,000/- awarded by the tribunal is on the lesser side. Whereas, the petitioner may require Rs.45,000/- for the purpose of removing K-wire, which is yet to be removed and until it is properly united, it cannot be removed. Therefore, petitioner may require another amount of Rs.20,000/- towards 'future medical expenses'. Hence, it is just and proper to award a sum of Rs.40,000/- towards future medical expenses instead of Rs.20,000/- awarded by the Tribunal.
19. With regard to the 'loss of income during laid up period', the petitioner has produced Ex.P.9 - letter issued by his
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NC: 2024:KHC:24903 MFA No. 6352 of 2021 employer, wherein it is stated that he has applied leave and joined duty on 01.01.2018. He has remained absent and applied leave without pay from 09.08.2017 to 31.12.2017 i.e., 144 days which reveals that the petitioner was under medical leave without pay. Such being the case, the Court is required to grant compensation under the head 'loss of income during laid up period'. It is also pertinent to note that while awarding compensation under the head 'loss of income during laid up period', the actual income of the petitioner has to be considered. Such being the case, the petitioner has produced a document at Ex.P.9, which proves that he was a Central Government Employee and the Air Force Department has issued certificate. Such being the case, disbelieving the certificate issued by the Department is not correct. Therefore, the petitioner is entitled for 5 months laid up period by considering the income of the petitioner at Rs.30,000/- per month. Hence, petitioner is entitled for an amount of Rs.1,50,000/- (30,000 x 5) under the head 'loss of income during laid up period'.
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NC: 2024:KHC:24903 MFA No. 6352 of 2021
20. Accordingly, the appellant is entitled for compensation as under.
Particulars Amount
in Rs.
Pain and sufferings, mental 50,000/-
agony
Medical expenses 1,54,116/-
For Special diet and 10,000/-
Conveyance.
Loss of amenities 50,000/-
Future medical expenses. 40,000/-
Loss of finger 50,000/-
Loss of income during laid up 1,50,000/-
period
Total 5,04,116/-
Rounded off to 5,04,200/-
25. Accordingly, I pass the following:
ORDER i. Appeal is allowed in-part. ii. The judgment and award dated 09.12.2019 passed in MVC No.6048/2017 by IX Addl. Small Causes and Addl. MACT, Bengaluru (SCCH-7) is modified;
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NC: 2024:KHC:24903 MFA No. 6352 of 2021 iii. The appellant/claimant is entitled to a sum of Rs.5,04,200/- as against Rs.2,84,116/- together with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization, iv. The entire enhanced amount is ordered to be released to the petitioner.
v. Respondent No.1 is directed to deposit the award amount excluding future medical expenses within a period of 60 days from the date of receipt of copy of this judgment. vi. Registry is directed to return the Trial Court records to the Tribunal along with certified copy of the order passed by this Court forthwith without any delay.
Sd/-
JUDGE VS List No.: 1 Sl No.: 54 CT:SK