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.9382 OF 2017 (MV) BETWEEN MR. CHENNAKESHAVA, S/O. MANJAPPA, AGED ABOUT 23 YEARS, R/O. HINDLEKOPPA, KANLE POST, TALUKA SAGAR, DISTRICT SHIVAMOGGA-577 201.
... APPELLANT (BY SRI. PRUTHVI WODEYAR, ADVOCATE) AND 1. SRI. TOHID, S/O. ABDUL KHUDDUS, AGED ABOUT 26 YEARS, R/O. ULLURU, TALUKA SAGAR, SHIVAMOGGA-577 201.
2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., GOVINDA KRUPA, J.C. ROAD, SAGAR-577 401.
... RESPONDENTS (BY SRI. P.B. RAJU, ADVOCATE FOR R2; R1-SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.06.2017 PASSED IN MVC NO.139/2017 ON THE FILE OF THE V ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. MACT SHIVAMOGGA SITTING AT SAGAR, 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.
The claimant/appellant in this appeal is seeking enhancement of compensation awarded by the Tribunal, wherein a total compensation of Rs.1,37,000/- has been awarded for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing on both sides.
3. The brief facts of the case are that on 20.10.2016 at about 6.30 p.m., the appellant was proceeding in a Hero Honda Passion bearing registration No.KA-15-W-6576 as a pillion rider. Near Jambagaru Sabhabhavan, Sagar Town, in front of building under construction, the rider of the said motor cycle suddenly applied break on a heap of mud, due to which, the motor bike skidded, as a result of which, the appellant fell down and sustained grievous injuries. The appellant was shifted to the Government Hospital, Sagar and after the first aid treatment, he was shifted to Nanjappa Hospital, Shivamogga for higher treatment. He was an inpatient in the said hospital for five days.
4. Before the Tribunal, a total compensation of Rs.16,20,000/- was sought. The Tribunal after considering the evidence and material on record, awarded a compensation of Rs.1,37,000/- with interest at 6% per annum from the date of petition till the date of realization.
5. The learned counsel appearing for the appellant would submit that the total compensation awarded by the Tribunal is not commensurate with the injuries sustained by him. He further submits that the appellant has suffered permanent disability. However, no compensation has been awarded under said head. Accordingly, seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. On the other hand, the learned counsel appearing for the Insurance Company submits that the Tribunal has considered the entire evidence and material on record and awarded a just and reasonable compensation. He submits that there is no permanent disability suffered by the appellant and the doctor has not stated anything about the permanent disability as such the question of awarding any compensation under said head does not arise. Accordingly, he seeks to dismiss the appeal.
7. The accident in question involving the motor bike bearing registration No.KA-15-W-6576 which was insured with the 2nd respondent / Insurance Company is not in dispute. In the said accident, the appellant sustained the following injuries:
(i) Fracture shaft right femur (ii) Abrasion left foot 1 x 1 cm., The discharge summary discloses that he was admitted to Nanjappa Hospital, Shvamogga. He was an inpatient from 20.10.2016 to 24.10.2016.
8. The appellant was a mason and according to him, he was earning a sum of Rs.15,000/- per month. However, there is no convincing evidence with regard to the income of the appellant. The Tribunal has taken the notional income of the claimant at Rs.6,000/- per month and has awarded a sum of Rs.18,000/- towards loss of income during laid up period. Considering the avocation of the appellant as well as the year of accident, the compensation awarded under said head is enhanced to Rs.30,000/-.
9. The appellant has sustained one fracture and another simple injury. Considering the same and also considering that he was operated and implants were placed, a sum of Rs.30,000/- is awarded under the head pain and suffering as against Rs.20,000/- awarded by the Tribunal. The compensation of Rs.44,000/- towards medical expenses awarded by the Tribunal is just and proper. PW2 is the doctor who has stated that on 21.10.2016, a surgery was conducted. The appellant has undergone closed reduction and ILN fixation on 21.10.2016. The doctor has deposed that the appellant may require a sum of Rs.20,000/- for removal of implants. The said amount has been awarded by the Tribunal. Considering the facts and circumstances of the case, the total sum awarded under the head attendant charges, nourishment, diet and conveyance is enhanced from Rs.20,000/- to Rs.35,000/- and the compensation of Rs.15,000/- awarded towards loss of amenities is enhanced to Rs.30,000/-. Though, it is the contention of the learned counsel for the appellant that due to the accidental injuries, the appellant has suffered permanent disability, however, the evidence of PW2 is silent about the same. It cannot be said that the appellant has suffered permanent disability. Therefore, the Tribunal was justified in not awarding any compensation under the said head. Hence, the appellant is entitled for a total compensation of Rs.1,89,000/- as against Rs.1,37,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 29.06.2017 passed by the V Addl. District and Sessions Judge and Addl. MACT, Shivamogga, sitting at Sagar in MVC No.139/2017 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.1,89,000/- as against Rs.1,37,000/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit entire amount within four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE snc