IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.10775/2010 (MV) BETWEEN:
B C ASHOKA S/O CHANNAIAH AGED ABOUT 24 YEARS R/AT BELUR VILLAGE KOTHATHI HOBLI MANDYA TALUK AND DISTRICT.
(BY SRI K L SREENIVAS, ADVOCATE) AND:
1. GANGAPPA S/O RANGAPPA AGE:MAJOR, MALLATHAHALLI BANGALORE – 560 056.
2. THE DIVISIONAL MANAGER ..APPELLANT THE ORIENTAL INSURANCE CO. LTD., D O –II, OPP. FIRE BRIGADE 1ST MAIN, SARASWATHIPURAM MYSORE- 570 001.
..RESPONDENTS (BY SRI C.R RAVISHANKAR, ADVCOATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DATED:19.02.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.08.2010 PASSED IN MVC No.622/2008 ON THE FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.) & MACT, MANDYA, 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 the appeal is listed for `Admission’, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. Appeal is directed against the Judgment and award dated 31.08.2010 passed in MVC No.622/2008 by the Principal Civil Judge (Sr.Dn) and MACT, Mandya.
3. The proceedings before the Tribunal came to be initiated because of the road traffic accident on 29.06.2008 when the claimant was riding the motorcycle bearing registration No.KA-11-R-6677 and Saroja was pillion rider. They were proceeding from their village towards Mandya. Near sugar factory circle when the petitioner was proceeding near private bus stand driver of motorcycle bearing registration No.KA—02-ED-4030 ridden in a rash and negligent manner hit the motorcycle on which the claimant was riding from the back side because of which petitioner fell and sustained injuries. Immediately he was taken to Government hospital, Mandya. They found two bones in right leg fractured and he was hospitalized in Apollo Hospital for 15 days and spent Rs.50,000/- towards medical treatment. Rods and screws were inserted. He states that he was paying Rs.200/- per day to the attendant as he had appointed attendant to attend him. After discharge he was also under treatment as well. So for all incidental effect and pain he sought for compensation of Rs.5,80,000/-. The insurance company disputed the claim of the petitioner. Accident is not disputed nor the injuries suffered by the petitioner. The core issue between the parties is regarding quantum of compensation. The age of the petitioner being 22 years, avocation agriculturist, percentage of disability to the limb is 35% as spoken by the doctor and disability considered by the Tribunal at 20% and the break up of compensation granted by the Tribunal is as under:
DESCRIPTION AMOUNT Loss of future income Rs.1,29,600.00 Pain and suffering Rs. 10,000.00 Medical expenses Rs. 85,000.00 Loss of income during treatment period from 29.06.2008 to 17.07.2008 Rs. 1,800.00 Food and nourishment Rs. 5,000.00 Attendant charges Rs. 1,800.00 Loss of amenities Rs. 5,000.00 Future medical expenses Rs. 5,000.00 Total Rs.2,43,200.00 4. Learned counsel for appellant-petitioner submits that earlier rods and screws which were inserted in leg of the petitioner were removed but subsequent to the Judgment. In this connection, he has filed an application under Order 41 Rule 27(1)(aa)(b) of CPC seeking leave of the court to produce additional documents and the same was resisted by the respondent-insurance company.
5. Learned counsel for respondent-insurance company Sri Ravi Shankar would submit that neither the claim nor additional claim are maintainable and that petitioner is not entitled for enhancement of compensation under any heads. He prays to reject the appeal and application as well.
6. Insofar as application is concerned it seeks an opportunity to produce documents and deserves to be allowed. Thus, I.A.1/2018 is considered and allowed. This court peruses the said document which is a copy of discharge summary wherein it is stated that petitioner got removed the rods that were inserted inside leg at Apollo BGS Hospital, Mysuru at an expense of Rs.28,042/-. In over all context and circumstances of the case, I find that it is just and proper to include the medical expenses of Rs.28,042/- into main break up under the head medical expenses. In this connection learned counsel Sri Ravi Shankar would submit that Tribunal has already granted Rs.5,000/- towards future medical expenses and same has to be deducted. It is necessary to observe this is not ending door for future medical expenses and Rs.5,000/- need not be deducted. Further accident is stated to be of the year 2008 and petitioner has claimed that he had paid Rs.200/- per day to the attendant and he was earning Rs.100/- per day. I find it is just and proper to consider the income at Rs.150/- per day in which event the disability of 20% would make the count.
Rs.150x30= 4,500x20% =900x12x18=1,94,400 Less: granted by Tribunal =1,29,600 Rs.64,800 Thus, the compensation that should have been granted under the head `loss of future income’ is Rs.1,94,400/- as against compensation granted by Tribunal.
7. In the circumstances petitioner is entitled for an enhancement in compensation to the extent of Rs.92,842/- ( Rs.64,800+Rs.28,042/- towards future medical expenses). However, petitioner is not entitled for interest on Rs.28,042/-. In the over all circumstances of the case the just and fair compensation is arrived at resulting in enhancement of Rs.92,842/-.
8. Learned Member erred in assessing compensation which deserves enhancement. To the said extent Judgment and award deserves to be modified as stated above.
Hence, I pass the following:
ORDER Appeal is partly allowed. Judgment and award dated 31.08.2010 passed in MVC No.622/2008 is modified by enhancing the compensation amount by Rs.92,842/- with interest at 6% p.a. on the amount of Rs.64,800/- (excluding Rs.28,042/- towards future medical expenses).
Respondent-insurance company is directed to deposit the enhanced compensation amount with interest within four weeks from the date of receipt of the certified copy of this order.
SBN Sd/- JUDGE