IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.10492 OF 2012 (MV) BETWEEN D.V. KUMARASWAMY, S/O. VENATEGOWDA @ VENKATAPPA, AGED ABOUT 42 YEARS, R/O. P. DASAPURA VILLAGE, KASABA HOBLI, CHANNARAYAPTANA TALUK, HASSAN DISTRICT-573 116.
... APPELLANT (BY SRI. HALESHA R.G., ADVOCATE) AND 1. SURESH G.R., S/O. RANGEGOWDA, AGED ABOUT 37 YEARS, R/O. GOVINAKERE VILLAGE, BAGURU HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573 116.
2. UNITED INDIA INSURANCE CO. LTD., VENKATESHWARA BUILDING, B.M.ROAD, HASSAN-573 201.
... RESPONDENTS (BY SRI. JWALA KUMAR, ADVOCATE FOR R2;
R1-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 28.05.2018) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.07.2012 PASSED IN MVC NO.5/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITON FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
This appeal is filed by the injured-claimant seeking enhancement of compensation awarded by the Tribunal, wherein a total compensation of Rs.1,38,000/- has been awarded for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant-claimant and the Respondent No.2- Insurance Company.
3. The facts of the case in brief are that on 28.10.2009, at about 5.00 a.m., when the appellant was waiting for the bus along with his brother-in-law at T. Dasapura Gate, he met with an accident due to the rash and negligent riding by the rider of a motor cycle bearing registration No.KA-13-V-91, on accout of which, he sustained grievous injuries and took treatment in Hemavathi Hospital, Hassan as an inpatient for a period of 20 days.
4. The Tribunal awarded a total compensation of Rs.1,38,000/- with interest at 6% per annum under the following heads :
Pain and sufferings Rs.30,000-00 Medical expenses Rs.60,000-00 Loss of income during the period of treatment Rs.18,000-00 Loss of amenities Rs.10,000-00 Future medical expenses Rs.20,000-00 Total Rs.1,38,000-00 5. It is the submission of the learned counsel for the appellant that the appellant-claimant was earning a sum of Rs.15,000/- per month from agriculture and as a driver and owner of APE auto. However, the Tribunal has taken a meager income of Rs.6,000/- per month. He further submits that the doctor has assessed the functional disability to an extent of 32% to his right leg. However, no compensation has been awarded by the Tribunal towards loss of earning due to disability. Therefore, he seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. It is no doubt true that the appellant has produced Ex.P-13 i.e., vehicle registration letter to show that he owned an auto rickshaw cab bearing registration No.KA-13-A-2061, driving license has been marked as Ex.P-14 to show that he was authorized to drive an auto rickshaw cab. However, there is no definite evidence to show the exact income of the appellant. In that view of the matter, the Tribunal has taken the income of the appellant as Rs.200/- per day i.e., Rs.6,000/- per month, which cannot be said to be erroneous.
7. According to medical evidence, the appellant has sustained sub trochanteric fracture of right femur. PW2 is an orthopedic surgeon, who treated the injured-appellant. He has deposed that the appellant was admitted in the hospital on 28.10.2009 as an inpatient. He has assessed the disability to the right lower limb, loss of restriction of movement in relation to right lower limb at 6%. He has stated that loss of restriction of movement in relation to right lower limb is 6.6%, total disability in relation to the mobility component is 19%. He has assessed the total disability to the lower limb at 32% which is the functional disability. The Tribunal though considered the said evidence, has not granted any compensation under the head ‘loss of earning due to disability’.
8. The appellant was aged about 43 years as per the documents at Exs.P-14 and 62. Therefore, the appropriate multiplier applicable to his age is ‘14’. Considering the disability to the whole body at 10%, the appellant is entitled for a compensation of Rs.1,00,800/- (Rs.6,000x12x14x10/100) under the head ‘loss of earning due to disability’.
9. The compensation awarded under the head ‘loss of amenities’ is enhanced from Rs.10,000/- to Rs.25,000/-. The compensation awarded towards pain and suffering, medical expenses, loss of income during the period of treatment and future medical expenses are maintained. Therefore, the appellant is entitled for an additional compensation of Rs.1,15,800/- in addition to what has been awarded by the Tribunal. Hence, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award passed by the Tribunal dated 04.07.2012 passed in MVC No.5/2010 by the Presiding Officer, Fast Track Court, Channarayapatna is hereby modified.
The appellant-claimant is entitled for an additional compensation of Rs.1,15,800/- in addition to what has been awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of the receipt of the copy of this judgment.
Sd/- JUDGE snc