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2023 DIGILAW 735 (KAR)

Somashekhar Shirsi v. S. Narayana

2023-06-01

C M JOSHI

body2023
JUDGMENT : C M Joshi, J. This appeal arises out of the judgment and award dated 05.01.2017 passed in M.V.C.No.1818/2016 by the XXI Addl. Small Causes Judge and the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal). 2. The appellant was the petitioner before the Tribunal and he is seeking enhancement of compensation. 3. The petitioner contended that on 25.10.2015 at about 7.30 p.m., while he was crossing the service road at Rudrampet Ananthpura Town, the car owned by the respondent bearing registration No.AP-02-AC-7197 came in rash and negligent manner from his right side and dashed against him. The petitioner sustained head injury i.e., cerebral concussion and un-displaced incomplete chip fracture of right femoral medial condyle and he was inpatient for three days at Saveera Hospital, Ananthpura. While he was in the hospital, the police visited the hospital and took the statement and a case was registered, and ultimately, a charge sheet was filed against the driver of the car. The car was not covered with any insurance. The petitioner claimed adequate compensation in the matter. 4. On issuance of notice, the respondent-owner appeared and filed objections before the Tribunal contending that the accident was due to the negligence on the part of the petitioner and he tried to cross the road without seeing the vehicle coming from his right side. The other claims of the petitioner were denied by the respondent, infer alia the respondent contended that the same are exorbitant, imaginary and untenable. 5. On framing necessary issues, the petitioner was examined as PW-1 and the documents at Exs.P-1 to P-11 were marked in the evidence. The petitioner was neither cross-examined by the respondent nor any evidence was led on behalf of the respondent. 6. The Tribunal after hearing the arguments, allowed the petition in part and granted compensation under different heads as under: 1 Pain and sufferings Rs.25,000/- 2 Medical expenses Rs.57,490/- 3 Conveyance, nutritious food, loss of happiness, frustration and discomfort Rs. 10,000/- Total Rs.92,490/- 7. Aggrieved by the said judgment, the petitioner has approached this Court in this appeal. 8. I have heard the arguments of the learned Counsel for the appellant. Learned Counsel for the respondent has remained absent on two occasions despite the matter being posted for final hearing. The records of the Tribunal have been secured. 9. 10,000/- Total Rs.92,490/- 7. Aggrieved by the said judgment, the petitioner has approached this Court in this appeal. 8. I have heard the arguments of the learned Counsel for the appellant. Learned Counsel for the respondent has remained absent on two occasions despite the matter being posted for final hearing. The records of the Tribunal have been secured. 9. The case of the petitioner is that he was aged 68 years at the time of accident and that the Tribunal has not awarded any compensation under the head of loss of amenities in life due to the fracture to the right knee and that the loss caused to the petitioner on account of his cancellation of tour has not been considered by the Tribunal. Learned Counsel for the appellant also contended that the compensation for loss of income during laid up period and loss of amenities could have been granted by the Tribunal and as such the appellant is in appeal before this Court. 10. The respondent has not disputed the accident, but has contended that the accident was due to the negligence on the part of the petitioner. However, the respondent has noticed any evidence before the Tribunal to bring home his contention that there was contributory negligence on the part of the petitioner also. Therefore, this Court has considered the other contentions regarding the quantum of compensation. 11. Evidently, the petitioner has not produced any documentary evidence showing his income and that he had suffered any permanent disability. The Tribunal has awarded a sum of Rs.25,000/'- under the head 'pain and suffering' and a sum of Rs. 10,009/- towards conveyance, nutritious food, loss of happiness, frustration and discomfort, etc. It is relevant to note that the petitioner aged about 68 years had suffered fracture to the femoral medial condyle of the right leg and had suffered abrasions over the face. He was inpatient at Saveera Hospital and later on, he took treatment at K.C.General Hospital as may be seen from Ex.P-7 and thereafter, at Spandana Orthopedic Clinic and also underwent physiotherapy. Evidently, the treatment appears to be conservative in nature. Considering the nature of injuries suffered by the petitioner, I find that there is no reason to enhance the compensation under the head 'pain and suffering'. 12. The petitioner claims that he was a businessman, but there is no document to establish the same. Evidently, the treatment appears to be conservative in nature. Considering the nature of injuries suffered by the petitioner, I find that there is no reason to enhance the compensation under the head 'pain and suffering'. 12. The petitioner claims that he was a businessman, but there is no document to establish the same. Even then, it can safely be said that the petitioner was unable to move atleast for a period of two months owing to the injuries suffered by him at the age of 68 years. Therefore, it would be proper to award a sum of Rs.20,C00/- under the head Toss of income during laid up period'. 13. The records would reveal that the petitioner had to undergo physiotherapy from 10.06.2016 to 30.06.2016 at Padmashree Physiotherapy & Pain Relief Centre. The conveyance expenses in respect of his visit for physiotherapy should have been considered by the Tribunal while awarding compensation under the head of conveyance. Therefore, it would be proper to enhance compensation under the head of conveyance, nutrition, food, etc., to the extent of Rs. 15,000/-. 14. So far as loss of amenities due to the injuries suffered by him to the petitioner is concerned, the Tribunal has not awarded any compensation for the same. The petitioner is not entitled for any compensation under the head of loss of future earnings, and therefore, it would be proper to award a sum of Rs. 10,000/- under the head loss of amenities in life. 15. Learned Counsel appearing for the appellant submits that Ex.P-10 discloses that the petitioner had booked a tour package to Singapore and due to the accidental injuries, he had to cancel the same. Out of the amount paid by the petitioner for such tour, a sum of Rs.64,705/- was deducted as cancellation charges and as such, the petitioner is also entitled for the same. 16. Ex.P-10 discloses that he had booked the package tour which was to commence from 28.10.2015. The petitioner suffered the accident on 25.10.2015. Therefore, it is evident that the said loss is directly attributable to the injuries suffered by the petitioner in the accident. It is also pertinent to note that Ex.P-10 though not proved as required under law by examining the author, the same was not disputed by the respondent by way of cross-examination of PW-1. Therefore, it is evident that the said loss is directly attributable to the injuries suffered by the petitioner in the accident. It is also pertinent to note that Ex.P-10 though not proved as required under law by examining the author, the same was not disputed by the respondent by way of cross-examination of PW-1. It is not on record that the petitioner has tried to make unlawful gain by producing either fake documents or certificates. When the petitioner has deposed on oath that he has suffered loss to the extent of Rs.64,705/-, I find considerable force in the argument of the learned Counsel for the appellant and as such, petitioner is entitled for a sum of Rs.64,705/-. 17. The Tribunal has awarded a sum of Rs.57,490/-towards medical expenses and no interference is required in the same. 18. Therefore, the petitioner is entitled for compensation under different heads as under: 1 Pain and sufferings Rs.25,000/- 2 Loss of income during laid up period Rs.20,000/- 3 Medical expenses Rs.57,490/- 4 Conveyance, nutritious food, loss of happiness, frustration and discomfort Rs.15,000/- 5 Loss of amenities in life Rs.10,000/- 6 Loss suffered due to cancellation of package tour Rs.64,705/- Total Rs.1,92,195/- 19. For the aforesaid reasons, the appeal deserves to be allowed in part and hence, the following: ORDER The appeal is allowed in part. The petitioner is held entitled for an additional compensation of Rs.99,705/- in addition to what has been awarded by the Tribunal along with interest at the rate of 6% per annum from the date of petition till the date of deposit of the amount. In the event of such deposit, the entire amount is ordered to be released to the petitioner.