IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.935 OF 2018 (MV) BETWEEN ANWAR BASHA @ M.D. ANWAR BASHA, S/O. DAWOOD SAB, AGED ABOUT 52 YEARS, OCC: PRESENTLY NIL, R/O. NO.4/80, BASVARAJAPET, DAVANGERE-577 001.
... APPELLANT (BY SMT. SARITHA KULKARNI, ADVOCATE) AND 1. BASVANTHACHARI @ BASAVANTHACHAR, S/O. ESHWARACHAR, AGE : MAJOR, OCC: CARPENTER, R/O. NO.1151/27, 2ND MAIN, SWAMI VIVEKANANDA BADAVANE, DAVANAGERE-577 004.
2. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, MELAGIRI PLAZA, OPP: JJM MEDICAL COLLEGE, DAVANAGERE-577 004.
... RESPONDENTS (BY SRI. R. RAJAGOPALAN, ADV. FOR R-2, NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED 07.06.2018) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.10.2017 PASSED IN MVC NO.743/2014 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND MACT, VII AT DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both sides.
2. The injured-claimant has preferred this appeal, seeking enhancement of compensation awarded by the Tribunal in MVC No.743/2014 on the file of the Court of III Addl. Senior Civil Judge and VII Addl. MACT, Davanagere, wherein a total compensation of Rs.1,75,000/- has been awarded for the injuries sustained by him in a road traffic accident.
3. It is the case of the appellant that on 03.04.2014, he along with respondent No.1 went to Akki Alur Village of Hanagal Taluk, Haveri District on Hero Splendor Pro Motor cycle bearing registration No.KA-17/EM-1319 to purchase wood for manufacture of furnitures. When they were moving towards Akki Alur Village, the said motor cycle met with an accident on account of the rash and negligent riding by respondent no.1, due to which and the appellant sustained injuries. Immediately he was shifted to District Hospital at Haveri and after first aid treatment, he was shifted to Bapuji Hospital Davanagere. He took treatment as inpatient in the said hospital from 03.04.2014 to 25.04.2014.
4. It is the further case of the appellant that due to the accidental injuries, he has suffered permanent disability and he has lost the capacity to earn. The Tribunal after considering the evidence and material on record, awarded a compensation of Rs.1,75,000/- with interest at 8% per annum from the date of petition till its realization.
5. Seeking enhancement of compensation, the learned counsel for the appellant submitted that the injured-appellant was a carpenter and was also dealing in timber business and he was having an income of Rs.20,000/- per month. It is submitted that on account of the accidental injuries, he has suffered 43% permanent disability to the right lower limb. Therefore, the disability taken by the Tribunal at 10% is not proper. The Learned counsel submits that the total compensation awarded by the Tribunal is inadequate and accordingly, seeks to enhance the compensation.
6. On the other hand, the learned counsel appearing for respondent No.2-Insurance Company would justify the total compensation awarded by the Tribunal contending that the same is just and reasonable and no enhancement is called for. Accordingly, seeks to dismiss the appeal.
7. The fact that the appellant sustained injuries in a road traffic accident involving the motor cycle bearing registration No.KA-17-EM-1319 which was insured with the 2nd respondent herein is not in dispute.
8. According to the appellant, he was a carpenter and also doing timber business and earning a sum of Rs.20,000/- per month. However apart from the interested oral testimony of PW1, there is no other convincing material on record to hold that the appellant was having an income of Rs.20,000/- per month. The Tribunal has taken the income of the appellant at Rs.5,000/- per month, which is on the lower side. However, considering the facts and circumstances of the case and also that the accident has occurred in the year 2014, the notional income of the appellant is taken at Rs.8,500/- per month.
9. The appellant has sustained injuries over his right leg and suffered fracture of 1/3rd shaft of right tibia. He has taken treatment as an inpatient from 03.04.2014 to 25.04.2014. The medical evidence disclose that he had undergone surgery to the right tibia i.e., he was operated for segmental fracture of right tibia by ORIF with IMIL nail with screws. PW2 has assessed the disability of the appellant over right lower limb to an extent of 43%. The evidence of PW2 goes to show that there is malunion of both legs. The appellant finds difficult in doing day to day routine work. Considering the same, I am of the view that the total disability to the whole body can be taken at 15% as against 10% taken by the Tribunal.
10. The appellant was aged about 48 years at the time of accident. The appropriate multiplier applicable to his age is 13. Therefore, the appellant is entitled for a sum of Rs.1,98,900/- (Rs.8,500x12x13x15/100) towards future loss of income due to disability as against Rs.78,000/- awarded by the Tribunal. The compensation awarded towards pain and suffering is enhanced from Rs.20,000/- to Rs.30,000/-. The compensation awarded towards loss of amenities is enhanced from Rs.20,000/- to Rs.35,000/-. The tribunal has awarded a sum of Rs.11,500/- towards loss of income during laid up period, the same is enhanced to Rs.25,500/-. The Tribunal has not awarded any compensation towards food, nourishment, conveyance and attendant charges. Hence, a total sum of Rs.10,000/- is awarded under the said heads. The medical expenses of Rs.45,330/- awarded by the Tribunal is just and proper. In all, the claimant is entitled for a total compensation of Rs.3,44,730/- which is rounded off to Rs.3,45,000/- as against Rs.1,75,000/- awarded by the Tribunal. Accordingly, I pass the following :
ORDER The appeal is allowed in part.
The judgment and award dated 04.10.2017 passed in MVC No.743/2014 on the file of the III Addl. Senior Civil Judge and VII Addl. MACT, Davanagere is hereby modified.
The appellant is entitled for a total compensation of Rs.3,45,000/- as against Rs.1,75,000/- awarded by the Tribunal.
The enhanced compensation shall carry interest as per the Order passed by the Tribunal.
Respondent No.2- Insurance Company shall deposit the compensation amount within a period of two weeks from the date of the receipt of a copy of this judgment.
The appellant is permitted to withdraw the entire amount along with interest.
snc Sd/- JUDGE