IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4111/2013 Between:
Abdul Rehaman S/o Mohammed Aged about 24 years Mason R/at Bapunagar Mudigere, Mudigere Taluk Chikmagalur District – 577 132 ... Appellant (BY Sri. M.Rajashekar, Advocate) And:
1. Shivananda Appagiri S/o Beemappa Appagiri Aged about 30 years KSRTC Bus Driver Budge No.: 1153 Mudigere Depot Mudigere – 577 132 R/at Navalgunda Dharwad – 582 208.
2. The General Manager Karnataka State Road Trasport Corporation, Double Road Bengaluru Owner of KSRTC Bus bearing Reg.No.KA 13/F 1311 ... Respondents (Appeal against R1 is dismissed as per the order dated 27.07.2015. Sri. C.Chennegowda, Advocate for R2) This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 12.07.2012 passed in MVC.No.216/2011 on the file of the Presiding Officer, Fast Tract Court, MACT, Chikmagalur, Partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for Admission, this day, the Court delivered the following:
J U D G M E N T Though this appeal is listed for admission, the same is taken up for final disposal at the consent of both the learned counsel.
2. This appeal is directed against the judgment and award dated 12.07.2012 passed in MVC.No.216/2011, on the file of Motor Accident Claims Tribunal at Chikmagalur.
3. I have heard the learned counsel for the appellant and the learned counsel appearing for the respondent No.2.
4. The appellant is the injured. It is the case of the appellant that, on 09.01.2011, at about 10.30 a.m., while he was proceeding on Bajaj M 80 Motor cycle bearing registration No. KA 31/H 3874 towards Hoskere, at that time, near Eshwara Temple, the driver of the K.S.R.T.C. bearing registration No.KA 13F 1311 drove the said bus in a rash and negligent manner and dashed against his motor cycle. Due to the said impact, he sustained grievous injuries to his right leg and other parts of the body. Immediately he was shifted to MGM Hospital, Mudigere, after giving first aid treatment, he was shifted to MG Hospital, Chikmagalur.
5. It is the further case of the appellant that, he was aged about 22 years, working as a mason and was earning more than Rs.5,000/- per month. Due to the accident, he has suffered disability and he is not able to do any work.
6. The Tribunal has awarded a total compensation of Rs.1,37,900/- which is rounded off to Rs.1,38,000/- under the following heads:
` 1,37,900=00 ============= The same is rounded off to ` 1,38,000=00.
7. The contention of the learned counsel for the appellant is that the income taken by the Tribunal is on the lower side and also disability assessed to the whole body is also on the lower side. As per the evidence of the Doctor-PW.2, the disability is 27% but the Tribunal has taken disability at 10% without any justification. Accordingly, he seeks enhancement of the compensation awarded by the Tribunal.
8. Learned counsel appearing for respondent No.2 on the other hand justified the findings recorded by the Tribunal and seeks to dismiss the appeal.
9. According to the claimant, he was aged 22 years as on the date of accident and was working as mason. The Tribunal has taken his earning as Rs.4,000/- per month. Considering that the accident occurred in the year 2011, it is just and reasonable to take the notional income of the appellant as Rs.5,500/- per month. The appropriate multiplier is ‘18’.
10. The evidence of Doctor-PW.2 goes to show that the injured had sustained multiple abrasions over right ankle joint and fracture of right femur and he gave first aid treatment and then he referred the claimant to MG Hospital, Chikmagalur for higher treatment. He underwent surgery in MG Hospital, Chikmagalur, wherein he was admitted for about 15 days. Thereafter, he was taken to MGM Hospital, Mudigere for treatment of pain and stiffness of hip and right knee joint. The X-ray showed the implant in-situ mal-union femur at fracture site with exuberant cellus. The clinical examination revealed that the patient had restricted movement at hip and knee joint and the patient had difficulty to run, squat, to sit with cross legs and to perform routine work. It is stated that the movement at the knee joint is restricted to 20% and the total disability was assessed at 27% to the whole body.
11. Considering the aforesaid evidence of the Doctor, though the whole body disability cannot be taken at 27%, however, the disability taken by the Tribunal at 10% is on the lower side. Hence, the total disability may be taken at 20% to the whole body. Accordingly, the appellant is entitled for a sum of Rs.2,37,600/- (5,500X12X18X20/100) towards loss of future income. The total compensation awarded for Pain and Suffering is enhanced from Rs.20,000 to Rs.30,000/-, Attendant Charges, Food and Nourishment Charges and Traveling expenses are enhanced from Rs.5,000/- to Rs.10,000/-, The compensation awarded under the head of Loss of Earnings is enhanced from Rs.8,000/- to Rs.11,000/-. The compensation awarded under other heads are unaltered. Hence, the appellant is entitled for a total compensation of Rs.3,07,100/- which is rounded off to Rs.3,07,000/- as against Rs.1,38,000/- awarded by the Tribunal. The break up is as under:
Loss of future income : ` 2,37,600 =00
` 3,07,100=00 ============= 12. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 12.07.2012 passed in MVC.No.216/2011 by the MACT, Chikmagalur is hereby modified. The appellant is awarded a total compensation of Rs.3,07,000/- with interest @ 6% per annum from the date of petition till the date of realization.
Respondent No. 2 is liable to pay the compensation.
Respondent No.2 shall deposit the compensation amount within a period of four weeks from the date of receipt of copy of the judgment.
Sd/- JUDGE NR/-