IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER 2017 BEFORE THE HON’BLE MR.JUSTICE B. SREENIVASE GOWDA MFA No. 3746 OF 2012 (MV) BETWEEN:
THIMMEGOWDA, S/O LATE THIMMEGOWDA, AGED ABOUT 51 YEARS, R/O YELECHANAKANAHALLI VILLAGE, KOTHATLU HOBALI, MANDYA TALUK, MANDYA DISTRICT. …APPELLANT (BY SRI. G.M. ANANDA, ADV.) AND:
1. THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., NO. 1576, 1ST FLOOR, V.V. ROAD, MANDYA CITY, MANDYA 571401.
2. SHANKARE GOWDA G.B. S/O BOREGOWDA, NO. 237-B, GORAVANAHALLI VILLAGE, MADDUR TALUK, MANDYA DISTRICT 571 401. …RESPONDENTS (BY SRI. VEDHUKUMAR, ADV. FOR R2.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.03.2011 PASSED IN MVC NO. 524/2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN.) AND CJM, MACT, MANDYA, 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 : -
JUDGMENT This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 16.5.2008 due to rash and negligent driving of the offending Herohonda Motor Cycle bearing registration No.KA-11/R-3005 by its rider and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view, that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. As per Ex.P-6 wound certificate, Ex.P11 - Discharge card of MIMS Hospital, Ex.P12 - Discharge card of BGS Appollo Hospital, Mysore, and Ex.P13 – Old case sheet of MIMS Hospital, the claimant had sustained fracture of both bones of both legs. Injuries sustained and treatment underwent by him are evident from Exs.C1 to C3 viz., Inpatient file, out patient file and Two O.P. Slips with new X-ray and corroborated by the oral evidence of the claimant and Doctor xamind as PWs.1 and 2 respectively. The claimant was operated on 24.5.2008, closed IMIL nailing was done. He was discharged on 20.06.2008 with PTB POP cast and advised not to bear weight on left lower limb for 6 weeks and to attend follow up after 6 weeks. POP was removed after 6 weeks and physiotherapy was advised. During 3rd month he had infected implants which was treated after doing culture sensitivity test thereafter he was treated at Apollo BGS Hospital, Mysore from 10.03.2009 to 16.3.2009. Surgery was done on 12.3.2009 infected implant was removed sequestrectomy was done. Doctor has opined fracture of left leg 1/3rd is grievous in nature.
7. Considering the nature of injuries sustained and duration of treatment underwent by the claimant, a sum of Rs.50,000/- is awarded towards ‘pain and suffering’ as against Rs.30,000/- awarded by the Tribunal.
8. The claimant has produced medical bills for Rs.69,627/- for the treatment taken at MIMS and ( * xxxxxxx ) for the treatment taken at BGS Apollo Hospital, Mysore, on two different occasions. In all medical bills for a sum of *Rs.70,000/- are produced by the claimant. Hence a sum of *Rs.70,000/- is awarded towards medical expenses. He was treated as inpatient for 31 days on two occasions i.e., from * deleted vide court order dated:05.04.2018 * corrected vide court order dated:05.04.2018 16.5.2008 to 11.6.2008 at MIMS Hospital, Mandya and from 10.3.2009 to 16.3.2009 at BGS Apollo Hospital Mysore. Considering the duration of treatment a sum of Rs.20,000/- is awarded towards incidental expenses, such as conveyance, food, diet, nourishment and attendant charges as against Rs.17,500/- awarded by the Tribunal.
9. The claimant claims that he was doing agricultural and sericulture operation and was earning a sum of Rs.8,000/- per month, but the same is not substantiated by adducing co-gent evidence. In the absence of proof of income considering his age as 45 years, year of accident as 2008 and his avocation as agriculturist his income could be assessed at Rs.4,500/- per month as against Rs.3,500/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 10 months and therefore a sum of Rs.45,000/- is awarded towards ‘loss of income during laid up period’ as against Rs.15,500/- awarded by the Tribunal.
10. The claimant is aged about 48 years at the time of accident, and the multiplier applicable to his age group is 13. His income is assessed at Rs.4,500/- per month. Doctor has stated in his evidence that claimant has suffered disability of 40% to the left limb and 13% to the whole body. Therefore, the ‘loss of future income’ works out to Rs.91,260/- (Rs.4,500 x 12 x 13 x 13/100) and it is awarded as against Rs.54,600/- awarded by the Tribunal.
11. Considering the nature of injuries, sustained by the claimant disability stated by the claimant and an amount of discomfort and unhappiness he has to undergo in his future life a sum of Rs.25,000/- is awarded towards ‘Loss of amenities’.
12. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
Pain and suffering 50,000/-
Medical Expenses *70,000/-
Incidental expenses 20,000/-
Loss of income during laid up period 45,000/-
Loss of amenities 25,000/-
Loss of future income 91,260/-
13. Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified * corrected vide court order dated: 05.04.2018 to the extent stated herein above. The claimant is entitled for an additional compensation of *Rs.1,13,660/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
14. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 70% of the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank for a period of 3 years and with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.
15. The Tribunal while releasing 30% of the amount is also directed to issue the fixed deposit receipt, so as to enable the claimant to withdraw the deposit amount on * corrected vide court order dated:05.04.2018 its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
No order as to costs.
Sd/- JUDGE NG* CT: pgg*