IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.4122/2014 (MVC) BETWEEN` Mr. Charan Kumar R Ameen S/o Raghu Ameen Aged 25 years R/at Bangi House Jokatte Post Thokur Village Mangalore Taluk D.K. District-575 007. …APPELLANT (By Sri Ravishankar Shastry G, Advocate) AND 1. Mr. Shantosh Kumar S/o Balakrishna Salian Aged 25 years R/o Door No.2-117 Bangi House Jokatte Post Thokur Village Mangalore Taluk D.K. District-575 007.
2. National Insurance Company Limited 1st Floor, Emjay’s Complex Balmatta, Mangalore, D.K. Represented by its Branch Manager-575 001.
3. K.A. Venkatesh Babu S/o N Ashwatha Narayan Shetty Aged 57 years R/o Bhagavan Stores IOC Dealer, Pete Road Holenarasipur Hassan District-573 211.
4. Reliance General Insurance Company Limited Maximus Commercial Complex IV Floor, Light House Hill Road Hampanakatta Mangalore, D.K. -575 001, Represented by its Manager. …RESPONDENTS (By Sri Anup, Advocate for Sri B.C. Seetharama Rao, Advocate) This Miscellaneous First Appeal is filed under Section 173(1) of MVC Act 1988 against the Judgment and award dated: 03.12.2013 passed in MVC.No.104/2012 on the file of IV Additional District and Sessions Judge and Member, MACT, D.K., Mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Miscellaneous First Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT With the consent of Sri. Ravishankar Shastri learned Counsel appearing for appellant and Sri Anup, learned Counsel for respondent No.2, this appeal is taken up for final hearing, heard and disposed of by this judgment.
2. This appeal is preferred against the judgment and award dated 3.12.2013 passed in MVC No.104/2012 by the learned IV Additional District Judge and Member, MACT, D.K., Mangalore. Being not satisfied over the compensation of Rs.4,12,164.00, the appellant seeks enhancement of compensation for the injuries suffered by him in the road accident said to have occurred on 24.10.2011.
3. In order to avoid overlappings and confusion, the parties hereinafter shall be referred to in accordance with their respective rankings held by them before the tribunal.
4. Brief facts of the case are; that the petitioner is said to have suffered injuries in the road accident that occurred on 24.10.2011 at about 9.30 p.m., when he was pillion rider on the motor cycle bearing No.KA-19-EB-9367, which was being ridden on a very high speed and in a rash and negligent manner.
5. When the said motor cycle reached near IOC, it dashed against the back side of the tanker lorry bearing No.KA-12/4625 which was parked on the extreme side of the road, as a result of which the petitioner fell on the road and sustained injuries. He was shifted and admitted to A.J. Hospital, Mangalore as an inpatient, and was discharged on 12.11.2011, during which period he said to have spent Rs.2,00,000/- for medical and other incidental expenses and claims that he requires Rs.1,00,000/- for future treatment. His age was 23 years and was working as a fork lift operator under Geeth Enterprises, Padubidri, getting salary of Rs.7,000/- per month. Due to the accident, the petitioner lost the sight of his left eye. The case is said to have been registered in crime No.113/2011 against the rider of the motor cycle.
6. Since respondent Nos.1 and 3 did not appear before the tribunal, they were placed exparte.
7. Learned Counsel prays for dispensing notice to them. Therefore notices were dispensed.
8. Notice to respondent No.4 before this Court is also dispensed with.
9. Thereafter, on the basis of the material propositions asserted and denied by the parties, the tribunal framed the issues on the point of negligence, accident and entitlement of compensation for having suffered the grievous injuries.
10. Learned Counsel for appellant would submit that the petitioner suffered the loss of sight of his left eye. He is disabled in carrying on his regular activities which he was enjoying prior to accident. He further submits that there has been mismatch regarding the proportion and the ratio of the compensation granted.
11. He further submits that the disability has also affected the marriage prospects of the petitioner, who has become handicapped by virtue of loss of one eye sight and the other one 5% disability.
12. And, further submit that the case is registered against the rider of the motor cycle in Crime No.113/2011. The misfortune of the petitioner is that he sat on the motor cycle as a pillion rider and that it was due to the negligence of the rider, the accident had occurred. At the same time, due to no fault of the petitioner, who is the appellant herein, he suffered the injuries. The learned Counsel also submits that marriage prospects of the petitioner has been reduced and he has been known to the world as partly blind.
13. Learned Counsel for respondent-insurance company would submit that the income of the petitioner is not diminished in any manner and he is performing the activities which he was doing earlier to accident though he is total blind. Thus, the learned Counsel submits that the judgment and award passed by the tribunal does not suffer from any infirmities or exaggeration. Hence, he has supported the judgment.
14. In order to prove the case, the petitioner got examined himself as P.W.1, Dr. Ajay Kudva as P.W.2, Mr. Ganesh as P.W.3 and Mr. Megharaj as P.W.4 and got marked Exs.P.1 to P.17 including the copies of FIR, Complaint, wound certificate, spot mahazar, spot sketch, IMV Report, Charge Sheet, medical bills etc. On the side of the respondents, no witness has been examined. However, the respondent got marked the documents at Exs.R.1 and R.2 – insurance policies.
15. The Doctor (P.W.2) has assessed the disability of the whole body at 40% and 5% to another eye. Learned Counsel for the petitioner would submit that the loss of sight of his left eye is considered for the purpose of disability at item No.25 of the Schedule-I to the Employee’s Compensation Act, 1923, wherein it provides loss of one eye without complications, the other being normal.
16. In the contextual circumstances prevailing in the case and the materials produced by the petitioner and the disability suffered by him, the tribunal considered the notional income of the petitioner at Rs.5,000/- per month though the petitioner has claimed his income at Rs.8,000/- per month. However, the learned Counsel for the respondent would submit that the salary of the petitioner has been taken on the higher side for the notional income. But the learned Counsel for the appellant would submit it is not exorbitant and the petitioner needs compensation for further treatment also.
17. In the overall circumstances, for the purpose of the case and keeping the just compensation in mind, it is to be noted that loss of ‘sight’ for one eye by itself is recognized as grievous under section 320 of Indian Penal Code, but the second eye also disabled by 5%. There are many openings/opportunities or avenues like police, defence. In case of infection or injury over the affected person will become total blind. this Court is of the opinion that the notional income of the petitioner considered by the tribunal at Rs.5,000/- per month is just and proper and it deserves to be confirmed.
18. Insofar as the disability is concerned, the tribunal has assessed the disability of the whole body at 20%. The vital part of the body i.e. the left eye sight is lost. Therefore, the finding of the tribunal holding 20% disability to whole body is liable to be ignored Under the circumstances, 40% disability to the whole body will definitely serve to reach the just compensation. Thus except considering the disability percentage, this Court finds absolutely no circumstances to interfere with the grant of compensation made by the learned MACT which is as under:
Pain and Agony : Rs. 50,000-00 Medical Expenses : Rs.1,08,164-00 Attendance Charges : Rs. 3,000-00 Nutrition, Traveling & Incidental Charges. : Rs. 5,000-00 Loss of Earnings during The period of treatment : Rs. 15,000-00 Loss of future earnings : Rs.2,16,000-00 Loss of Amenities : Rs. 15,000-00 TOTAL : Rs.4,12,164-00 19. With all equations for this case may be taken from angles, but the final figures for income it requires Rs.6000/- as a consolidated sum.
20. As observed, on considering the disability at 40% for the total body, the variation in respect of loss of future earnings would become Rs.4,32,000/- (5,000x12x18x40%). To that extent, the judgment and award passed by the tribunal is liable to be interfered to which the compensation towards loss of future earnings is modified by enhancing the compensation to Rs.2,16,000/-. Thus concluding, the comprehensive assessment of compensation for the accident and injury, loss of sight of his left eye, the notional income for assessing the disability, just compensation in the matter would be as under:
Pain and Agony : Rs. 50,000-00 Medical Expenses : Rs.1,08,164-00 Attendance Charges : Rs. 3,000-00 Nutrition, Traveling & Incidental Charges. : Rs. 5,000-00 Loss of Earnings during The period of treatment : Rs. 15,000-00 Loss of future earnings : Rs.4,32,000-00 Loss of Amenities : Rs. 15,000-00 TOTAL : Rs.6,28,164-00 21. Accordingly, the appeal is allowed in part.
The judgment and award passed by learned member MACT dated 03.12.2013 granting Rs.4,12,164/- as compensation is hereby set aside and modified to enhance the same to Rs.6,28,164/- The enhanced compensation of Rs.2,16,000/- together with same rate of interest as granted in the award earlier as stood till date.
Sd/- JUDGE Cs/-