IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.8418 OF 2016 (MV) BETWEEN DEVARAJ @ DEVARAJU, S/O. POOJARI, 37 YEARS, R/O. CHIKKABYAGATHAVALLI VILLAGE, KASABA HOBLI, PADUVALAHIPPE POST, HOLENARASIPUR TALUK, HASSAN DISTRICT-573 201.
... APPELLANT (BY SMT. SHARADAMBA A.R., ADVOCATE) AND 1. NAGARAJ C.M., S/O. C.T. MARIGOWDA, MAJOR, R/O. CHIKKABYAGATHAVALLI VILLAGE, KASABA HOBLI, PADUVALAHIPPE POST, HOLENARASIPUR TALUK, HASSAN DISTRICT-573 201.
2. THE MANAGER, UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD., T.T.C. INDUSTRIAL AREA, MIDC, MAHAPE, MUMBAI, MAHARASTRA-400 710, INTER MADERI CODE 201150539665.
... RESPONDENTS (BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2; R1-NOTICE DISPENSED WITH V.C.O. DATED 20.03.2019) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.01.2016 PASSED IN MVC NO.1010/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MACT, HOLENARASIPUR, 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 injured-claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.1010/2014 on the file of the Senior Civil Judge and JMFC, Holenarasipura, wherein a total compensation of Rs.1,56,700/- with interest at 6% per annum has been awarded to the claimant for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for Respondent No.2-Insurance Company.
3. The facts of the case in brief are that on 15.03.2014 at about 7.00 a.m., when the appellant was walking by the left side of the road, the rider of a motor cycle bearing registration No.KA-13-EB-4160 by riding the said motor cycle in a rash and negligent manner dashed against him from the back side, as a result of which, he fell down and sustained severe injuries. He was immediately shifted to Hoysala Hospital, Hassan, wherein he took treatment as inpatient.
4. It is the case of the claimant that he was an agriculturist and earning a sum of Rs.8,000/- per month and on account of the accidental injuries, he has suffered permanent disability and he is not in a position to work as before and he has lost the earning capacity. A total compensation of Rs.5 Lakhs was sought by the claimant.
5. The Tribunal after considering the evidence and material on record, awarded a compensation of Rs.1,56,700/- with interest at 9% per annum from the date of petition till the date of deposit.
6. The learned counsel for the appellant- claimant would submit that the income taken by the Tribunal at Rs.4,500/- per month is on the lower side and the Tribunal has also not awarded adequate compensation under other heads. Accordingly, she seeks to enhance the compensation awarded by the Tribunal.
7. The learned counsel for respondent No.2- Insurance Company would submit that the Tribunal has awarded a just and reasonable compensation and no enhancement is called for. Accordingly, he seeks to dismiss the appeal.
8. According to the appellant, he was an agriculturist and having an income of Rs.8,000/- per month. The Tribunal has observed that the claimant has not produced any documentary evidence such as RTC extracts to show that he is having any landed property and therefore took the income of the appellant at Rs.4,500/- per month. The appellant was aged about 39 years at the time of accident. The accident has occurred in the year 2014. It cannot be said that the appellant was not having an income of Rs.8,000/- per month. Considering the facts and circumstances of the case, the income of the appellant for the purpose of calculating the loss of future income, is taken at Rs.8,000/- per month.
9. As per Ex.P3 - wound certificate and X-ray produced at Exs.C1 to C6, the appellant sustained fracture of shaft of left fibula distal 3rd. He was an inpatient from 15.03.2014 to 19.03.2014. He was treated surgically with ORIF to the fractured bone. PW2 – the Orthopedic surgeon has deposed that he has conducted surgery and fixed plates and screws. Again on 15.07.2017, he examined him and found that:
(1) There was a decrease of dorsi-flextion of left leg at 15 degree, (2) He is having difficulty to climb stairs and walk freely, (3) He is having difficulty to sit with cross-legged.
The permanent disability to the limb was assessed at 21%. Therefore, the total disability was considered as 7% to the whole body, which is just and proper. The appellant was aged about 39 years and the appropriate multiplier applicable to his age is 15. Hence, the appellant is entitled for a compensation of Rs.1,00,800/- (Rs.8,000/-x12x15x7/100) towards loss of future income on account of disability.
10. The compensation of Rs.25,000/- awarded towards pain and suffering is enhanced to Rs.35,000/-. A sum of Rs.5,000/- awarded towards traveling, conveyance and attendant’s charges is enhanced to Rs.15,000/- including nutritious food. Sum awarded towards loss of income during laid up period is enhanced from Rs.5,000/- to Rs.16000/-. The sum awarded towards loss of future amenities is enhanced from Rs.10,000/- to Rs.25,000/-.
11. PW2 has deposed that the petitioner needs one more surgery and the cost for the same would be around Rs.15,000/- to Rs.20,000/-. However, in the absence of any definite evidence with regard to the expenses towards the surgery, sum of Rs.10,000/- awarded by the Tribunal is just and proper. The medical expenses of Rs.45,000/- awarded by the Tribunal is based on the prescription and medical bills. The same is unaltered. In all, the claimant/appellant is entitled for a total compensation of Rs.2,46,800/- as against Rs.1,56,700/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 04.01.2016 passed by the Senior Civil Judge and JMFC, Holenarasipura in MVC No.1010/2014 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.2,46,800/- as against Rs.1,56,700/- 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 the entire amount within four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE snc