Karnataka High Court
Mr Praveen D' Souza vs The Oriental Insurance Co Ltd on 28 June, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:24064
MFA No. 1064 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 1064 OF 2014 (MV)
BETWEEN:
MR PRAVEEN D' SOUZA
S/O FRANCIS D SOUZA
AGED ABOUT 32 YEARS
R/A BERNOTTU HOUSE
SACHERIPETE POST
KARKALA TQ, UDUPI DISTRICT
PRESENTLY R/A HENRY COMPOUND
NEAR KULASHEKARA, MANGALORE TQ
...APPELLANT
(BY SRI. GURUPRASAD B R., ADVOCATE)
AND:
1. THE ORIENTAL INSURANCE CO. LTD.,
KRISHNAPRASAD BUILDING
Digitally signed
MAIN ROAD, PUTTUR D K - 574 201
by SUMITHRA R REPRSENTED BY ITS MANAGER.
Location: HIGH
COURT OF
KARNATAKA
2. SMT N. NAMRATHA PRABHU
W/O H N PRABHU
AGED ABOUT 48 YEARS
HOTEL VRANDAVAN
DHARMASTHALA
BELTHANGADY TALUK- 574 214, D K.
...RESPONDENTS
(BY SRI. T.K. VEDAMURTHY, ADVOCATE FOR R1)
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NC: 2024:KHC:24064
MFA No. 1064 of 2014
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.09.2013
PASSED IN MVC NO.5/2011 ON THE FILE OF THE II
ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-III, D.K.,
MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as 'MV Act' for brevity) by the appellant-claimant challenging the judgment and award dated 26.09.2013, passed in MVC No.5/2011, on the file of II Additional District Judge, Member, MACT-III, D.K., Mangalore, (hereinafter referred to as 'the Tribunal' for brevity) seeking enhancement of compensation.
Brief facts:
2. That on 29.05.2010 the petitioner along with others were proceeding from Dharmastala towards Tumkur in a Qualis car bearing registration No.KA-20-C-9997. The driver of the -3- NC: 2024:KHC:24064 MFA No. 1064 of 2014 said car was driving the same in high-speed and in a rash and negligent manner. When the car reached near B.M.Bypass road at Hassan at about 11.50 p.m. the driver of the car dashed the same to the lorry bearing registration No.KA-05-D-8664 which was parked on the extreme side of the road. Due to the impact the inmates of the car have sustained grievous injuries.
3. Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. Claimant was aged 29 years and was working as lineman at MESCOM at Dharmastala and was earning Rs.10,000/- per month. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,88,300/- along with interest at 6% per annum from the date of petition till its realisation. The Tribunal held respondent Nos.1 and 2 therein, jointly and severally liable to pay the compensation.
4. Heard arguments of the learned counsel for the appellant and perused the materials on record. -4-
NC: 2024:KHC:24064 MFA No. 1064 of 2014
5. The learned counsel for the appellant submitted that the quantum of compensation awarded under various heads is on lesser side. Therefore, seeks for enhancement of the compensation.
6. The compensation awarded by the Tribunal is as follows:
Pain And Suffering : Rs. 60,000/-
Hospitalisation, attendants charges, : Rs. 25,000/-
conveyance and other incidental
expenses
Medical expenses : Rs. 93,300/-
Loss of amenities and enjoyment of : Rs. 10,000/-
life
TOTAL : Rs. 1,88,300/-
7. From the medical records, it is proved that claimant sustained following injuries:
1. Bilateral black eye
2. Lacerated wound over left upper eyelid
3. Lacerated wound over left lower hip
4. Lacerated wound muscle deep over back of right wrist.
5. Fracture of shafts of both radius and ulna of right forearm at lower one third.-5-
NC: 2024:KHC:24064 MFA No. 1064 of 2014
6. Dislocation of left hip joint.
7. CT scan of head:
a) Fracture of left frontal bone
b) Fracture of left orbit
c) Fracture of nasal bone
d) Fracture of maxilla on both sides
e) Fracture of pterygoid plates on both sides.
8. The claimant is a lineman working under MESCOM. It is the evidence that vision of the claimant has impaired to the extent of 40% also claimant submitted suffered several fractural injuries as stated above. The claimant continued the same job though he sustained injuries and his right eye is impaired. Therefore there is no possibility as regards loss of earning capacity, as claimant continued the same job in the same capacity and getting same salary. Loss of amenities is found to be lesser side. Claimant suffered 40% disability apart from suffering several fractural injuries. Therefore compensation of Rs.75,000/- is awarded towards loss of amenities. Considering the disability suffered compensation awarded towards pain and suffering is just compensation.
9. The Tribunal has awarded a sum of Rs.25,000/- towards 'Incidental Expenses'. Considering the fact that the -6- NC: 2024:KHC:24064 MFA No. 1064 of 2014 appellant was admitted in the hospital as inpatient for eleven days, therefore, he must have spent considerable amount towards transportation, conveyance, food, nourishment, physiotherapy etc. Therefore, a sum of Rs.50,000/- is awarded towards 'Incidental Expenses'.
10. The claimant was constrained to take bed rest for four months without going to work. Therefore claimant was constrained to apply earned leave and thus applying earned leave making the claimant deprived of getting encashment of earned leave. Medical records prove that the claimant was inpatient for 11 days and constrained to take bed rest for four months. Therefore claimant would have suffered loss of income for the laid up period. Claimant being lineman working in MESCOM was earning Rs.10,936/- per month. For calculating earned leave the monthly salary is divided by 30 days then it comes to Rs.333/- and for four months i.e., 120 days it comes to Rs.39,960/-.
11. The Tribunal has erred in not awarding any compensation towards 'Future Medical Expenses'. PW-2 Doctor has deposed that the appellant has to undergo one more -7- NC: 2024:KHC:24064 MFA No. 1064 of 2014 surgery in future for removal of implants, which would cost about Rs.40,000/-. Therefore a sum of Rs.30,000/- is awarded towards future medical expenses.
12. The claimant is a Bachelor and certainly his marriage prospects are hampered. Therefore a sum of Rs.1,00,000/- is awarded towards `loss of marriage prospects'.
13. The Tribunal has awarded a sum of Rs.93,300/- towards 'Medical Expenses', which is as per the medical bills and receipts produced and hence kept in tact.
14. Hence, the appellant is entitled for a total enhanced compensation with 6% p.a. interest, under various heads as follows:
Description Amount 1. Pain and Suffering Rs.60,000/- 2. Hospitalisation, attendants Rs.50,000/- charges, conveyance and other incidental expenses 3. Medical Expenses Rs.93,300/- 4. Loss of amenities and Rs.75,000/- enjoyment of life 5. Loss of income during laid Rs.39,960/- up period (EL) Rs.10,000/12 =333x120 6. Loss of marriage Rs.1,00,000/- -8- NC: 2024:KHC:24064 MFA No. 1064 of 2014 prospects 7. Future medical expenses Rs. 30,000/- Total Rs.4,48,260/- Less: Awarded by the Rs.1,88,300/- Tribunal Enhanced compensation Rs.2,59,960/- 15. Therefore, the appellant is awarded a total
compensation of Rs.4,48,260/- as against the compensation awarded by the Tribunal at Rs.1,88,300/-. Hence, the appellant is entitled for an additional compensation of Rs.2,59,960/- (Rs.4,48,260 - Rs.1,88,300), along with interest at 6% per annum from the date of filing of the petition till deposit.
16. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated 26.09.2013, passed in MVC No.5/2011, on the file of Motor Accident Claims Tribunal-III and II Additional District Judge, D.K., Mangaluru, is modified to an extent that the appellant - claimant is entitled for an additional compensation of Rs.2,59,960/- (Rupees Two Lakhs -9- NC: 2024:KHC:24064 MFA No. 1064 of 2014 Fifty Nine Thousand Nine Hundred Sixty Only), along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.
iii. The amount in deposit shall be transferred to the Tribunal forthwith.
iv. 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.
v. Draw award accordingly.
Sd/-
JUDGE
SBN
List No.: 1 Sl No.: 19