IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4025/2013 (MV) Between:
Anil Raj Gowda S/o Basavaraj Aged about 32 years Agriculturist R/at Magaduru Village Siddapura Taluk Present R/at Vinoba Nagar Sagar Town – 577 401. ... Appellant (By Smt. Vijaya.M.N., Advocate) And:
1. Nandish S/o Mallappa Gowda Aged about 41 years Saiduru Village Sagar Taluk – 577 401 Rider of Hero Honda Fashion Bike bearing Reg.No.KA 31/J 8673.
2. Swami B.Gowda S/o Basavaraj, Major R/at Kalluru, Kavachuru Village Siddapura Taluk – 581 355 Owner of Hero Honda Fashion Bike bearing Reg.No. KA 31/J 8673.
3. The Divisional Manager United India Insurance Company Limited Modi Complex, Hosapete Road Sirsi – 581 401 U.K.District. ... Respondents (By Sri. K.S.Lakshminarasappa, Advocate for Sri. B.C.Seetharama Rao, Advocate for R3) This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 29.01.2013 passed in MVC.No.33/2012 on the file of the Senior Civil Judge and JMFC, Member, Additional MACT, Sagar, 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 with the consent of both the learned counsel.
2. I have heard the learned counsel for the appellant and learned counsel appearing for the respondent No.3/Insurance Company.
3. This appeal is filed by the claimant seeking enhancement of compensation, wherein, the Court of Senior Civil Judge and J.M.F.C., and the Additional Motor Accidents Claims Tribunal at Sagar in M.V.C.No.33/2012 has awarded a sum of Rs.1,69,525/- to the appellant/claimant for the injuries sustained by him in a road traffic accident that occurred on 13.06.2010.
4. It is the case of the appellant that, on 13.06.2010, at about 9.30 a.m., while he was proceeding in front of the shop of one Pandu at Kanase Village on Sagar-Siddapura Road, the rider of Hero Honda Passion Bike bearing Reg.No.KA-15/J-8673, came in a rash and negligent manner and dashed to the appellant, due to which the appellant sustained injuries to his right thigh, right side of the face, lips and other parts of the body. Immediately after the accident, he was shifted to Community Health Care Centre, Siddapura, wherein he got first aid treatment. Thereafter, he was shifted to T.S.S.Hospital, Sirsi, wherein he was an inpatient for a period of 10 days and also took treatment as on outpatient for about two months.
5. It is the further case of the appellant that he was aged about 32 years as on the date of accident and he was doing agriculture and dairy farming. Due to the accident he suffered permanent disability and lost the capacity to earn. A total compensation of Rs.6,85,000/- was sought by the claimant before the Tribunal.
6. Before the Tribunal the appellant got himself examined as PW.1 and two more witnesses have been examined. 13 documents were marked as Ex.P1 to P13. The claim petition was contested by the respondent/Insurance Company. However, no evidence was let in by the respondent/Insurance Company.
7. The Tribunal by considering the oral and documentary evidence has awarded a total compensation of Rs.1,69,525/- along with future interest at the rate of 9% p.a. excluding the amount awarded towards future medical expenses. Being aggrieved by the inadequacy of compensation awarded by the Tribunal, the present appeal has been filed.
8. Learned counsel for the appellant contends that the income taken by the Tribunal and the compensation awarded under all the heads are on the lower side. Accordingly, he seeks to enhance the compensation.
9. Per contra, the learned counsel appearing for the Insurance Company would justify the compensation awarded contending that it is just and reasonable and no interference is called for.
10. The Tribunal has taken the income of the appellant at Rs.3,000/- per month. According to the appellant, he was doing agricultural work and also doing dairy farming. Apart from his oral evidence, there is no other evidence adduced to substantiate that the appellant was earning Rs.10,000/- per month. However, considering that the accident occurred in the year 2010, I deem it proper to take the notional income of the appellant at Rs.5,500/- per month.
11. According to PW.3 -Dr.Madhukeshwar G.V, the appellant has suffered permanent disability to an extent of 19% to the right lower limb. The disability taken at 6% to the whole body is just and proper. The appellant being aged about 32 years, the appropriate multiplier is ‘16’. Therefore, the appellant is entitled for a total compensation of Rs.63,360/- (5,500X12X16X6%) towards loss of future income as against Rs.34,560/- awarded by the Tribunal.
12. The wound certificate is marked as Ex.P10. It reveals that the appellant sustained 1) swelling over right thigh, 2) swelling over right jaw, 3) cut lacerated wound over lower lip. On diagnosis it was found that the patient has suffered, a) fracture shaft femur right, b) fracture mandible right alveolar. PW.2 is the treated Doctor and PW.3 is an Orthopedic Surgeon. According to the medical evidence, the appellant has sustained fracture of mandible and fracture of right femur. In view of the evidence on record and injury sustained by the appellant, the compensation awarded towards pain and suffering and mental agony is on the lower side. Accordingly the same is enhanced from Rs.25,000/- to Rs.50,000/-. The compensation awarded towards conveyance, special diet and attendant charges is enhanced from Rs.8,000/- to Rs.12,000/-. The amount awarded towards loss of earning during treatment period is enhanced from Rs.12,000/- to Rs.22,000/-. The amount awarded towards loss of amenity is enhanced from Rs.10,000/- to Rs.15,000/-. The compensation awarded towards medical expenses and future medical expenses are just and reasonable. Therefore, the appellant is entitled for a total compensation of Rs.2,42,325/- as against Rs.1,69,525/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 29.01.2013 passed by the Court of Senior Civil Judge and J.M.F.C., and the Additional Motor Accidents Claims Tribunal at Sagar in M.V.C.No.33/2012 is hereby modified.
The appellant is awarded a total compensation of Rs.2,42,325/- with interest @ 6% per annum from the date of petition till the date of realization as against Rs.1,69,525/- awarded by the Tribunal.
Respondent No. 3 is liable to pay the compensation and shall deposit the entire amount within a period of four weeks from the date of receipt of a copy of the judgment.
Sd/- JUDGE NR/-