Karnataka High Court
M Ravindranath Kini vs Dr Reethu Vivek on 22 June, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.2779 OF 2015 (MV-I)
BETWEEN:
M. RAVINDRANATH KINI,
S/O LATE M. PADMANABHA KINI,
AGED ABOUT 46 YEARS,
R/O SAIBRAKATTE,
SHIRIYARA VILLAGE,
SAIBRAKATTE POST,
UDUPI TALUK
AND DISTRICT.
...APPELLANT
(BY SRI. PAVANA CHANDRA SHETTY H., ADV.)
AND:
1. DR. REETHU VIVEK,
W/O DR. VIVEK K.S.,
AGED ABOUT 39 YEARS,
R/O SOWPARNIKA HOUSE,
HANGLOOR VILLAGE,
HANGLOOR POST,
KUNDAPURA TALUK - 576 201.
2. DR. VIVEK,
S/O SRINIVASAYYA,
AGED ABOUT 50 YEARS,
2
R/O SOWPARNIKA HOUSE,
BANGALORE VILLAGE,
BANGALORE POST,
KUNDAPURA TALUK - 576 201.
3. RELIANCE GENERAL INSURANCE CO. LTD.,
MAXIMUS COMMERCIAL COMPLEX,
4TH FLOOR, HILL ROAD,
HAMPANAKATTE,
MANGALORE - 575 001.
REPRESENTED BY ITS
AUTHORIZED OFFICER.
...RESPONDENTS
(BY SRI.D.VIJAYA KUMAR, ADV. FOR R3;
NOTICE TO R1 AND R2 IS DISPENSED WITH
VIDE ORDER DATED 29.05.2018)
**************
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.12.2014
PASSED IN MVC NO.1172/2009 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, KUNDAPURA,
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
3
JUDGMENT
This appeal is filed by the claimant against the
Judgment and Award passed by the Court of Senior Civil
Judge and Addl. MACT at Kundapura, dated 02.12.2014,
in MVC No.1172/2009, seeking enhancement of
compensation.
2. Heard learned advocate appearing for the
appellant and learned advocate appearing for the
respondent No.3.
3. The driver and owner of the car in question i.e.
the first and second respondents in the claim petition
remained ex-parte before the Tribunal. Hence, notice to
them in this appeal is dispensed with by this Court at the
risk of the appellant.
4. Perused the records. The claim petition is filed
seeking compensation in respect of the injury sustained by
the claimant which according to the claimant is the result
of a motor vehicle accident dated 08.08.2009. The
accident is not in dispute. The liability of the insurer is also
not in dispute. The Tribunal has awarded total
compensation of Rs.3,22,270/- under the following heads:
HEADS AMOUNT
(in Rupees)
Pain and sufferings 50,000/-
Medical expenses 18,994/-
Loss of earning during 1,43,276/-
the laid-up period
Disability 70,000/-
Loss of amenities 25,000/-
Future medical expenses 15,000/-
Total 3,22,270/-
5. The claimant has suffered injuries namely
fracture of right fibula, fracture of left sixth rib and open
head injury with fracture of the left temporal bone. These
injuries are not in dispute.
6. The claimant was LIC Agent at the time of the
accident is also not in dispute. The records produced by
the claimant would indicate the income of the claimant is
around Rs.35,000/- per month. The Tribunal has taken the
income of the claimant at Rs.35,819/- on perusal of the
records relating to the commission paid to the claimant.
7. The claimant contends that he suffered an
injury to the ear and on account of this, there is a
reduction in the hearing ability of the left ear. In support
of his claim, the claimant has also produced certificates at
Exs.P24 and P25. Ex.P24 is the wound certificate issued
by the ENT Specialist - Dr Deviprasad D. of Kasturba
Hospital, Manipal. It reveals that the claimant requires
around Rs.35,000/- towards treatment for his injured ear.
Ex.P25 is the wound certificate issued by Ms. Archana G.,
ENT Specialist, Kasturba Hospital, Manipal and she opines
that the claimant is suffering from moderate sloping mixed
hearing loss. The learned counsel for the appellant would
contend that though the claimant has suffered the hearing
loss, the Tribunal has awarded just Rs.70,000/- under the
head of 'disability' and Rs.25,000/- under the head "loss
of amenities" which are on the lower side. It is urged that
the Tribunal is not justified in awarding Rs.15,000/-
towards "future medical expenses" though the doctor
opined that the claimant needs Rs.35,000/- towards future
treatment.
8. It is also the submission of the learned counsel
for the appellant that the Tribunal was not justified in
reducing the medical expenses incurred by the appellant
on the ground that the claimant is reimbursed under
medical policy. As such, he prays for the enhancement of
compensation.
9. The learned counsel for the insurer
Sri. D. Vijaya Kumar, would raise the following
contentions:
(a) There is no nexus between the accident and the
reduction of hearing claimed by the claimant. The claimant
has not taken any treatment under the ENT Specialist for
his alleged injury to the ear. The compensation awarded
by the Tribunal itself is on the higher side since the
Tribunal has awarded Rs.50,000/- towards pain and
suffering, Rs.1,43,276/- towards the loss of income during
the laid-up period, Rs.70,000/- towards disability and
Rs.25,000/- towards loss of amenities and another sum of
Rs.15,000/- towards future medical expenses. He would
further urge that because the accident took place during
the year 2009, compensation awarded is on the higher
side.
(b) It is further urged that the award of total
compensation of Rs.3,22,270/- itself is on the higher side
as the value of the Rupee in the year 2009 was much
higher and as such, the claimant is not entitled to any
enhancement of compensation.
(c) The Exs.P24 and P25 produced by the claimant
are the would certificates issued by the doctors after filing
the claim petition and it is clear that only to claim higher
compensation the same is produced for which the claimant
is not entitled.
10. This Court after hearing the contentions raised
on behalf of the insurer finds that there is no dispute over
the fact that the claimant has suffered an injury to his left
temporal bone, fracture of the right fibula and fracture of
the left sixth rib on account of the accident occurred on
08.08.2009. By the impugned Judgment and Order it is
clear that Tribunal has not awarded any compensation
towards future loss of income. The Tribunal has awarded
an amount of Rs.1,43,276/- treating the monthly income
of the claimant at Rs.35,819/-. The Tribunal has taken the
loss of income for the laid-up period of four months which
is not supported by any evidence. Under the
circumstances, though the insurer has not preferred any
appeal, this Court is of the opinion that the compensation
awarded under the head 'loss of income during the laid-up
period' is to be considered only for three months as
against four months and the same would come to
Rs.1,07,457/-.
11. The records would reveal that the claimant was
consistently visiting the ENT Department of Kasturba
Hospital, Manipal since 2009 ever since the date of the
accident and the medical records would reveal that
claimant was complaining about a reduction in hearing
capacity after the accident. The wound certificate Ex.P25
though was issued after filing of the claim petition, it
cannot be said that the certificate is issued only to claim
higher compensation. The doctor though has not indicated
any disability, has indicated that there is a reduction in
hearing capacity. As such, this Court is of the opinion that
the claimant's hearing capacity is affected on account of
the accident.
12. Under the above circumstances, this Court is of
the view that the compensation under the head "disability"
awarded at Rs.70,000/- need not be disturbed,
nevertheless, compensation awarded under the head "pain
and sufferings" at Rs.50,000/- has to be enhanced by
another Rs.25,000/-. Further, the compensation awarded
towards "loss of amenities" also needs to be enhanced by
Rs.10,000/-. In addition to that, the doctor's certificate at
Ex.P24 reveals that the claimant needs Rs.35,000/-
towards "future medical expenses". There is no
justification for reducing the compensation awarded under
the said head which is at Rs.15,000/-. Accordingly, this
Court is of the opinion that compensation for future
medical expenses has to be enhanced to Rs.35,000/- on
the evidence of the doctor's certificate.
13. Learned advocate for the appellant would
submit that no compensation is awarded under the head of
"conveyance, incidental charges, food and special diet".
Considering the fact that the claimant was an in-patient for
six days in the Hospital, this Court would find that
Rs.10,000/- can be awarded under the said head.
14. For the foregoing reasons, the appellant-
claimant would be entitled to compensation as follows:
HEADS AMOUNT
(in Rupees)
Pain and sufferings 75,000/-
Medical expenses 18,994/-
Loss of earning during 1,07,457/-
the laid-up period
Disability 70,000/-
Loss of amenities 35,000/-
Future medical expenses 35,000/-
conveyance, incidental 10,000/-
charges, food and
special diet
Total 3,51,451/-
Accordingly, the appeal is allowed in part.
The claimant in MVC No.1172/2009 is held entitled
to total compensation of Rs.3,51,451/- as against the sum
of Rs.3,22,270/- awarded by the Tribunal, with interest at
the rate of 6% p.a. (excluding the amount awarded
towards 'future medical expenses') from the date of claim
petition till the date of deposit in the Tribunal. All other
findings of the Judgment and award of the Tribunal shall
remain intact.
The Judgment dated 02.12.2014 in MVC
No.1172/2009 passed by the Court of Senior Civil Judge
and Addl. MACT at Kundapura is modified to the extent
indicated above.
Return the concerned records to the Tribunal
forthwith, to draw the modified Award.
Sd/-
JUDGE
sac*
