IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.7125 OF 2014 [MV] BETWEEN CHELUVARAJU, S/O. CHELUVACHAR, AGED ABOUT 43 YEARS, R/O. SUNKATHONNUR VILLAGE, MELUKOTE HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT-571 434.
... APPELLANT (BY SRI. NATARAJU T., ADVOCATE) AND 1. DHARMARAJU, S/O. PUTTAMANJEGOWDA, AGE: MAJOR, R/O. BEERASHETTYHALLI VILLAGE, PANDAVAPRUA TOWN AND TALUK, MANDYA DISTRICT-571 434.
2. THE MANAGER, CHOLAMANDALAM M.S.
GENERAL INSURANCE COMPANY LIMITED, SARASWATHIPURAM, MYSORE-570 008.
3. RAMACHANDRA, S/O. EREGOWDA, NO.21, HEGGADAHALLI VILLAGE, PANDAVAPURA TALUK, MANDYA DISTRICT-571 434.
4. THE MANAGER, THE ICICI LAMBARD GENERAL INSURANCE CO LTD, MYTHRI ARCADE, KANTHARAJA URS ROAD, MYSORE-570 001.
(BY SRI. B. PRADEEP, ADVOCATE FOR R2, ... RESPONDENTS R1 SERVICE OF NOTICE IS DISPENSED WITH AS PER THE ORDER DATED 26.02.2015) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.04.2014 PASSED IN MVC NO.99/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, PANDAVAPURA, PARTLY ALLOWING THE CLAIM PETITION 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 at the consent of the learned counsel for both the parties.
2. I have heard the learned counsel appearing on both sides.
3. It is the case of the claimant that on 15.01.2011 at about 2.45 p.m., when he was traveling in a auto rickshaw bearing registration No.KA-11-4924 from Pandavapura to Sunkathonnur and when he reached near KSRTC bus depot at Pandavapura, a tractor and trailer bearing registration No.KA-11-T- 9077 and T-9078 driven by its driver in a rash and negligent manner came from the opposite direction and dashed to the auto rickshaw, due to which, he sustained injuries. Immediately after the accident, he was admitted to K.R. Hospital, Mysore, wherein he took treatment as an in-patient from 15.01.2011 to 19.02.2011. It is the further case of the claimant that, he was working as a carpenter and earning a sum of Rs.8,000/- per month and on account of the accident, he sustained permanent disability and he is not able to work as before.
4. A total compensation of Rs.9,60,000/- was sought by the appellant before the Tribunal. The claimant was examined as PW1 and the doctor was examined as PW2, Exs.P-1 to P-52 were got marked. The claim petition was contested by the respondent- Insurance Company. RW1 was examined and Exs.R-1 and R-2 were marked on behalf of the respondents.
6. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.2,57,033/- with interest at 6% per annum from the date of petition till the date of deposit. The compensation was awarded under the following heads:
Pain, shock and agony Rs.40,000-00 Medical expenses Rs.20,453-00 Food, diet, Nourishment Conveyance and other Incidental expenses Rs.17,000-00 Future Expenses Rs.5,000-00 Loss of income during treatment period Rs.13,500-00 Loss of income due to Permanent disability Rs.1,36,080-00 Disappointment and discomfort & loss of amenities Rs.25,000-00 Total Rs.2,57,033-00 7. The learned counsel for the appellant would contend that the Tribunal has erred in taking Rs.4,500/- per month as the income of the appellant and the percentage of disability which is taken at 18% to the whole body is also on the lower side. He would contend that the compensation awarded under various heads is not just and reasonable. Accordingly, he seeks to enhance the compensation awarded by the Tribunal.
8. Per contra, the learned counsel appearing for Respondent No.2-Insurance Company submits that the compensation awarded is based on the evidence and material on record. The doctor has assessed the percentage of disability to the limbs and therefore the Tribunal has rightly come to the conclusion that the disability suffered is 18% to the whole body. He submits that there are no good grounds to interfere with the award passed by the Tribunal in this appeal and accordingly, he seeks to dismiss the appeal.
9. The accident in question involving the offending tractor and trailer bearing registration No.KA-11-T-9077 and T-9078 and the actionable negligence on the part of the driver of the said vehicle is not in dispute. It is also not disputed that the said vehicle was insured with the 2nd respondent.
10. According to the appellant, he was aged about 40 years and working as a carpenter and earning a sum of Rs.8,000/- per month. Apart from his oral evidence, there is nothing on record to establish the actual income of the claimant. However, taking into consideration that the accident occurred in the year 2011, I am of the view that the notional income of the appellant could be taken as Rs.6,500/- per month.
11. According to the doctor-PW2, disability of the appellant is permanent in nature. He has stated that there is a disability of 43% towards right leg and 33% to the left leg. However, the doctor has not stated the disability with regard to the whole body as well as the functional disability. The appellant has sustained fracture in both legs. POP was applied and treatment was given. Surgery was conducted to the right leg and interlock rod was fixed to the fractured bone. Surgery was done to the left leg plates and screws were fixed. According to the medical evidence, the bones were reduced to 4 grade instead of 5 grade, the movement in ankles of both legs has been reduced, the movement of right leg ankle reduced from 160 degree instead of 110 degree, right ankle leg 25 degree restricted instead of 35 degree and restricted to 35 degree instead of 55 degree. Considering the said evidence on record, the functional disability can be assessed approximately at 20% to the whole body.
12. The appellant was aged about 40 years at the time of the accident, the appropriate multiplier applicable is 14. Therefore, the appellant is entitled for a total compensation of Rs.2,18,400/-
(Rs.6,500x12x14x20/100) towards loss of income due to permanent disability.
12. Considering the nature of injuries and disability suffered and the treatment taken by the appellant, the compensation awarded under the head ‘pain, shock and agony’ is enhanced from Rs.40,000/- to Rs.50,000/-. The appellant was an inpatient for about 34 days and the compensation awarded under the head ‘food, nourishment, conveyance and attendant and other incidental charges’ is enhanced from Rs.17,000/- to Rs.20,000/-. Considering the loss of income during the treatment period and reasonable subsequent period, a sum of Rs.26,000/- is awarded as against Rs.13,500/- awarded by the Tribunal.
13. The Tribunal has awarded a sum of Rs.25,000/- towards ‘disappointment, discomfort and loss of amenities’. The same is enhanced to Rs.35,000/-.
14. The compensation awarded under the head ‘medical expenses and future medical expenses’ is unaltered. Hence, the appellant is entitled for a total compensation of Rs.3,74,853/- as against Rs.2,57,033/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 02.04.2014 passed by the Senior Civil Judge and JMFC, Pandavapura in MVC No.99/2011 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.3,74,853/- as against Rs.2,57,033/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till the date of deposit.
The 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