IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.9217 OF 2017 (MV) BETWEEN:
ASHWATHAPPA S/O LATE VENKATARAVANAPPA, AGED ABOUT 54 YEARS, R/AT NO.177, GANGASANDRA II BLOCK, A.K. COLONY, GOURIBIDANUR TALUK, CHIKKABALLAPUR DISTRICT. ... APPELLANT (BY SRI.SHRIPAD V SHASTRI, ADV. ) AND:
1. SMT.GANGARATHNAMMA W/O. PALASANDRA BABANNA, R/A GANGASANDRA, GOURIBIDNUR TALUK, CHIKKABALLAPUR DISTRICT.
2. IFFCO TOKIO GENERAL INSURANCE CO.LTD., NO.141, V FLOOR, SHANTHI TOWERS, EAST OF NGEF LAYOUT, KASTURI NAGAR, BENGALURU - 43. ... RESPONDENTS (BY SRI.E I SANMATHI, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH V/O DTD:28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.06.2017 PASSED IN MVC NO.1635/2016 ON THE FILE OF THE 22ND ADDL. SMALL CAUSES JUDGE & 22 A.C.M.M. AND MEMBER M.A.C.T., BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Notice to respondent No.1 dispensed with. Memo is taken on record.
For the injuries suffered in the road traffic accident that took place on 27th March 2015 the appellant made claim petition before the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate and Motor Accident Claims Tribunal, Bengaluru. The Tribunal, by its judgment and award dated 22nd June 2107 passed in MVC No.1635 of 2016 awarded compensation of Rs.2,08,917/-. Being not satisfied with the compensation, the appellant is before this Court in this appeal.
2. The learned counsel appearing for the appellant submits that due to the injuries suffered in the accident, the appellant is not able to attend to his work normally and he cannot earn as he was earning earlier. He further submits that though the appellant has claimed that he was earning Rs.15,000/- per month, the Tribunal has disbelieved the same and taken the monthly income at Rs.5,000/- per month which is an error. Hence, the learned counsel prays for allowing the appeal and suitably enhance the compensation.
3. Per contra, the learned counsel appearing for the respondent-Insurer submits that the Tribunal, after considering the oral and documentary evidence, has awarded just and proper compensation and the same does not call for any interference in this appeal. Hence, he prays for dismissal of the appeal.
4. The accident is not in dispute and the injuries suffered in the accident is also not in dispute. In the cases where there the claimant cannot prove his income, the courts should assess the notional income by taking note of relevant factors like place of residence, number of dependents, cost of living prevalent then, etc. This court, with relevance to the year of accident of the year 2015, assess the monthly income at Rs.9,000/- per month. Accordingly, it is assessed. Hence, the calculation would be Rs.9,000/- x 12 x 9 x 17% comes to Rs.1,64,240/-, the same is awarded in place of Rs.91,800/- awarded by the Tribunal. Since the monthly is taken at Rs.9,000/- the compensation amount under the head loss of income during laid up period comes to Rs.36,000/-. Hence, the same is awarded in lieu of Rs.20,000/- awarded by the Tribunal.
5. The appellant has suffered fracture of both tibia and fibula of right leg; lacerated wound 2 inch x ½ inch right leg; abrasion size 4 x 3 cm over right femur, of which fracture of both bones of right leg is a grievous injury. Considering the age of the appellant and also the hardship, I am inclined to award another Rs.20,000/- under the head pain and suffering. Further, the appellant has to suffer the hardship for the rest of his life and considering the said facture, I am inclined to award another Rs.10,000/- towards loss of amenities. The appellant has undergone surgery with internal fixation. For removal of implants he needs to be hospitalised again. The Tribunal has not awarded any amount for future medical expenses. In that view of the matter, I am inclined to award Rs.20,000/- towards future medical expenses. Accordingly, the enhanced compensation would be to the tune of Rs.1,39,440/-. Further, instead of awarding interest to the enhanced amount, I am of the opinion that suffice it would if a global amount of Rs.1,65,000/- is awarded in the interests of justice. Accordingly, Rs.1,65,000/- global compensation is awarded in addition to what has been awarded by the Tribunal In the result, appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn