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2020 DIGILAW 1120 (KAR)

Rajani P v. B. S. Kumar

2020-06-18

B.VEERAPPA, M.I.ARUN

body2020
JUDGMENT B. Veerappa, J. - This appeal is filed by the appellant/claimant seeking enhancement of compensation against the judgment and award dated 24.03.2016 made in M.V.C.No.2185/2012 on the file of XII Additional Small Causes Judge and Member, M.A.C.T., (SCCH-8), Bengaluru, ('Tribunal' for short) awarding total compensation of Rs.11,31,647/- with 8% interest from the date of claim petition till the date of realization. 2. It is the case of the claimant that on 04.02.2012 at about 4.30 p.m., she was proceeding in her Scooty bearing No.AP-24-P-6203 at Kariyappa road and OVH road junction from North to South direction slowly and cautiously by observing all traffic rules and regulation, the rider of the Honda Activa bearing No.KA-05-HP-1316 came from OVH road side i.e., from East to West direction with high speed in a rash and negligent manner dashed against her vehicle, due to the said accident, she fell down and sustained grievous injuries. Immediately, she was shifted to K.R. Hospital, Bengaluru, wherein she took treatment as inpatient for a period of 2 days. Later she was shifted to Bhagwan Mahaveer Jain Hospital, she took treatment as an inpatient and discharged from the said hospital. Again she was admitted to Rajalakshmi Multispeciality Hospital, Bengaluru and took treatment as an inpatient by spending a sum of Rs.3,00,000/- towards her treatment. 3. It is further case of the claimant that prior to the accident, she was hale and healthy working as a Doctor at Gunasheela Surgical and Maternity Hospital, Bengaluru by drawing monthly salary of Rs.30,000/-. Due to accidental injuries, she could not do the work as before. The jurisdictional police registered a case in Crime No.8/2012 for the offences punishable under the provisions of Sections 279 and 337 of IPC against the rider of the offending vehicle. The 1st respondent being the owner and the 2nd respondent being the insurer of the offending vehicle are jointly and severally liable to pay compensation. Hence, sought for compensation of Rs.70,00,000/- in the claim petition. 4. In response to the notice issued, the 1st respondent - owner of the offending vehicle filed written statement by denying the claim averments and contended that the petition is not maintainable in law or on facts and that the appellant/claimant was proceeding in Scooty slowly and cautiously by observing all traffic rules and regulations and other averments are denied and sought to reject the claim petition. 5. 5. The 2nd respondent being the insurer of the offending vehicle filed written statement and denied the averments made in the claim petition and contended, that the petition is not maintainable and further contended that the jurisdictional police have not complied the mandatory provisions of Sections 134 (C) and 158 (6) of the M.V. Act and denied the age, avocation, income of the claimant and further contended that the claimant has falsely implicated the vehicle in order to get the compensation. The rider of the offending vehicle was not holding valid and effective driving license. The 1st respondent has entrusted the vehicle to the person who was not holding valid and effective driving licensed. Therefore, he sought to dismiss the claim petition. 6. Based on the aforesaid pleadings, the Tribunal framed the following issues:- "1. Whether the petitioner proves that she has sustained grievous injuries as mentioned in Wound certificate, in a road traffic accident on 04.02.2012 at about 4.30 p.m., Kariyappa road and OVH road junction, Basavanagudi, Bangalore, due to the rash and negligent riding of the rider of the Honda Activa bearing No.KA-05-HP-1316? 2. Whether petitioner is entitled for any compensation? 3. What Order or Award?" 7. In order to prove her case, the claimant examined herself as PW-1 and got examined five more witnesses on her behalf as PW-2 to PW-6 and got marked, the documents as Exs.P.1 to P.35. The 1st respondent examined himself as RW-1 and 2nd respondent has got examined its Deputy Manager as RW-4 and got examined three more witnesses as RW-2, RW-3 and RW-5 and got marked the documents as Ex.R.1 to R.6. 8. The Tribunal considering both oral and documentary evidence on record has recorded a finding that the claimant has sustained grievous injuries as mentioned in wound certificate at Ex.P.5 in a road traffic accident occurred on 04.02.2012 due to rash and negligent riding of the rider of the Honda Activa bearing No.KA-05-HP-1316 and the claimant is entitled to compensation. Accordingly, the Tribunal by the impugned judgment and award has awarded total compensation of Rs.11,31,647/- with interest at the rate of 8% p.a. from the date of the claim petition till its realization. Hence, present appeal is filed by the claimant for enhancement of compensation. 9. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the Tribunal in favour of the claimant. 10. Hence, present appeal is filed by the claimant for enhancement of compensation. 9. The Insurance Company has not filed any appeal against the impugned judgment and award passed by the Tribunal in favour of the claimant. 10. We have heard the learned counsel for the parties to the lis. 11. Smt. Sharadamba A.R., learned counsel for the claimant has vehemently contended that the Tribunal has proceeded to award only a sum of Rs.11,31,647/- with interest at the rate of 8% p.a. from the date of claim petition till its realization by ignoring both oral and documentary evidence on record. Therefore, the compensation awarded by the Tribunal requires interference of this Court and enhance the compensation. She would further contend that the claimant has examined the Doctor as PW-2, who has stated on oath that the claimant has sustained the fracture of tibial plateau with extension to diaphysial, popliteal artery injury, tibial nerve injury and common peroneal nerve injury. He further stated on oath that she was hospitalized at Rajalakshmi Hospital for closure of raw area in left leg and was inpatient till 06.03.2012. Later she was treated at BGS Global Hospital, Bengaluru and at Apollo Hospital, Hyderabad, for tibial nerve, common peroneal nerve and sural nerve. She has been continuing treatment with Neurologist and Physiotherapist and found the following difficulties:- "a) Difficulty in walk. b) Difficulty to squat or sit cross leg. c) Difficulty to stand on affected limb. d) Difficulty to stand on bear foot and buming foot." Therefore, she would contend that though the doctor has opined that the claimant has suffered 39% disability to the whole body, the Tribunal has taken only 12% disability to the whole body, which is on the lower side. Therefore, it requires further enhancement. 12. She further contended that the Tribunal while awarding compensation has awarded only Rs.60,000/- towards pain and sufferings and the same is on the lower side. She would further contend that the Tribunal has erred in considering three months bed rest while awarding the compensation towards loss of income during laid up period and the same has to be enhanced as the doctor has stated on oath that the claimant requires further treatment and till today, the claimant is taking treatment. She would further contend that the Tribunal has erred in considering three months bed rest while awarding the compensation towards loss of income during laid up period and the same has to be enhanced as the doctor has stated on oath that the claimant requires further treatment and till today, the claimant is taking treatment. She would further contend that taking into consideration the entire material on record, the loss of amenities, food and nourishment and attendant charges, awarded by the Tribunal is on the lower side as well as further medical expenses. Hence, she sought to allow the appeal. 13. Per contra, Sri. B.A.Ramakrishna, learned counsel for the respondent No.2 has contended that the impugned judgment and award passed by the Tribunal is justified. He would further contend that the Tribunal taking into consideration of income/salary of the claimant has taken income at Rs.30,000/- p.m. and considering the age, the multiplier is taken at 16' and awarded total compensation of Rs.6,91,200/- towards loss of future earning, which is just and proper. He would further contend that PW-2 is not a treated Doctor and though he has stated on oath that the claimant has suffered 39% disability to the whole body, the Tribunal is justified by taking 12% disability to the whole body. He would further contend that the Tribunal considering all oral and documentary evidence in proper perspective has proceeded to pass an award, which is just and proper. The same cannot be interfered by this Court. Therefore, he ought to dismiss the appeal. 14. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present appeal is : "Whether the claimant has made out a prima facie case for enhancement of compensation in the facts and circumstances of the present case?" 15. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. 16. It is undisputed fact that on account of rash and negligent riding by the rider of the offending Honda Activa bearing No.KA-05-HP-1316, the claimant has sustained the injury as per Wound Certificate Ex.P5 as under:- "1. 16. It is undisputed fact that on account of rash and negligent riding by the rider of the offending Honda Activa bearing No.KA-05-HP-1316, the claimant has sustained the injury as per Wound Certificate Ex.P5 as under:- "1. Injury to the left knee with fracture both bones with lower limb ALI class II b." The jurisdictional police have registered a case against the driver of the offending vehicle in Crime No.08/2012 for the offences punishable under the provisions of Sections 279 and 337 of IPC. The same is evidenced by the material documents marked at Exs.P.1 to P.4 and P.6 respectively, which are issued by the officials during the course of their regular employment. It is also not in dispute that due to the accident, the claimant being a Doctor who is aged about 33 years has lost her future prospects and hence, she claims compensation of Rs.70,00,000/-. 17. It is also not in dispute that the claimant was working as a Doctor at Gunasheela Surgical and Maternity Hospital, Bengaluru and she was drawing a sum of Rs.30,000/- p.m. as per Ex.P.13 - salary certificate issued by the concerned hospital. It is also not in dispute that as on the date of the accident, offending vehicle was insured with the 2nd respondent - Insurance Company and the policy was in force as on the date of accident. 18. The claimant who is examined as PW-1 has stated on oath that she was hale and healthy and was working as a Doctor at Gunasheela Surgical and Maternity Hospital, Bengaluru and was earning a sum of Rs.30,000/- p.m. and stated that due to accidental injuries, she could not do any work as before, she is under bed rest and became permanent disable and she could not move and lost her earning capacity. She further stated that she has to suffer throughout her life and lost her avocation due to accidental injuries and her ambition to become a famous Surgeon became only a dream and inspite of best treatment, she could not come to normal life. She further contends that she cannot walk without walker and she is using wheel chair to move from one place to another place. She further contends that she cannot walk without walker and she is using wheel chair to move from one place to another place. Her left leg has become fully disfigured and not in a normal shape or looks normal, there is swelling in left leg, left foot-drop and there is loss of sensation of left leg below knee and there is no movements of left leg below knee, muscle wasting and she is unable to do any work due to the accidental fractures and injuries. 19. In the cross-examination of PW-2 - Doctor, who is examined on behalf of the claimant stated on oath that the that the fracture is united and recently examined the claimant and found the following difficulties:- a) Difficult to walk b) Difficult to squat or sit in the cross leg c) Difficult to stand on affected limb d) Difficult to stand on her bare foot and boomping foot. 20. It is also not in dispute that the finding of fact recorded by the Tribunal that due to rash and negligent riding of the rider of the offending vehicle, the claimant has sustained fractures and became permanently disabled. The Doctor - PW-2 has stated, on oath that the claimant has suffered 39% of disability to the whole body, permanently is not in dispute. The Insurance Company has not disputed the fact that the offending vehicle was insured and the policy was in force and a criminal case was registered against the rider of the offending vehicle. The fact remains that the appellant - claimant is a young aged about 33 years and was working as a Doctor, has to suffer throughout her life. The Tribunal considering the salary certificate as per Ex.P.13 has taken the income of the claimant at Rs.30,000/- p.m. and has taken 12% disability to the whole body, which is contrary to the evidence of PW-2 - Doctor, who has stated that the claimant has suffered 39% of disability to the whole body. The Tribunal ought to have considered the young age, income, avocation and the nature of injuries suffered by the claimant while considering the disability to whole body. The Tribunal has erred in taking 12% disability to the whole body. The Tribunal ought to have considered the young age, income, avocation and the nature of injuries suffered by the claimant while considering the disability to whole body. The Tribunal has erred in taking 12% disability to the whole body. Hence, we are of the considered opinion that the disability suffered by the claimant has to be reassessed at 25% to the whole body taking into consideration of the oral evidence of PW.1 to PW.6 and material documents Exs.P.1 to P.10. 21. The Tribunal has proceeded to award only a sum of Rs.60,000/- towards pain and suffering. Taking into consideration the young age, avocation and fracture sustained, and the evidence of PW.1 and PW.2, Ex.P.5, Ex.P.7 to Ex.P.9 medical records, we are of the considered opinion that Rs.60,000/- towards pain and sufferings is on the lower side. Hence, it is enhanced by another sum of Rs.40,000/- in addition to Rs.60,000/-. 22. The Tribunal has awarded a sum of Rs.90,000/- towards loss of income during laid up period by considering loss of income for a period of three months taking into consideration the income of the claimant at Rs.30,000 per month as per Ex.P.13. The Tribunal ought to have taken loss of income for a period of four months instead of three months in view the fact that the claimant has taken treatment at various hospitals stated in her evidence as PW.1. Therefore, a sum of Rs.1,20,000/- is awarded towards loss of income during laid up period instead of Rs.90,000 awarded by the Tribunal. 23. Taking into consideration the income of the claimant at Rs.30,000/- p.m., 25% disability to the whole body permanently and considering her age as 33 years, in view of the dictum of the Hon'ble Apex Court in the case Sarla Verma and others -v- Delhi Transport Corporation and another, (2009) AIR SC 3104 , the multiplier would be 16'. Hence, total compensation of Rs.14,40,000/- (30,000/- x 12 x 16 x 25/100) would be awarded towards loss of future earning. 24. The Tribunal considering the entire material on record has awarded a sum of Rs.63,400/- towards loss of amenities, conveyance, food and nourishment and attendant charges etc., which is on the lower side. Hence, further sum of Rs.27,000/- is awarded towards loss of amenities, conveyance, food and nourishment and attendant charges. 25. The Tribunal has awarded a sum of Rs.15,000/- towards future medical expenses. Hence, further sum of Rs.27,000/- is awarded towards loss of amenities, conveyance, food and nourishment and attendant charges. 25. The Tribunal has awarded a sum of Rs.15,000/- towards future medical expenses. Taking into consideration the evidence of PW-2 - Doctor and other material documents, a further sum of Rs.10,000/- is awarded towards future medical expenses. 26. On re-assessing the entire material on record, we are of the considered opinion that claimant is entitled for compensation under the following heads as under:- Sl. No. Heads of compensation Amount Rs. Ps 1. Pain and sufferings 1,00,000/- 2. Loss of income during laid up period of four months 1,20,000/- 3. Medical Bills as per the award of the Tribunal 2,12,047/- 4. Loss of future earning 14,40,000/- 5 Loss of amenities, conveyance, food and nourishment and attendant charges 1,02,953/- 6. Future medical expenses 25,000/- Total 20,00,000/- 27. For the reasons stated above, the point raised in the present appeal is answered in the Affirmative holding that the claimant has made out a prima facie case for further enhancement of the compensation. 28. In view of the above, the appeal is allowed in part. The judgment and award dated 24.03.2016 made in MVC No.2185/2012 on the file of XII Additional Small Causes Judge and Member, MACT, Bengaluru, is modified. The claimant is entitled for total compensation of Rs.20,00,000/- with interest at the rate of 8% per annum from the date of petition till the date of realization as against Rs.11,31,647/- with interest awarded by the Tribunal. The enhanced compensation is Rs.8,68,353 with 8% interest per annum from the date of the petition till the date of realisation. Ordered accordingly.