Karnataka High Court
Sri.Nagaraju S/O Late Papegowda vs Sri Basavaraju on 27 May, 2021
Author: H.P.Sandesh
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
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/-
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
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
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
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
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,
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.
(iv) The Registry is directed to transmit the records
to the concerned Tribunal, forthwith.
Sd/-
JUDGE
MD
