IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR M.F.A. No.3193/2018 (MV) BETWEEN:
DONALD WILFY D’SOUZA S/O. LAWRENECE D’SOUZA AGED ABOUT 43 YEARS, R/AT H.NO.1-30, KULEDU HOUSE, KURKALU VILLAGE, SUBHASH NAGARA, UDUPI TALUK & DISTRICT – 576 101. ... APPELLANT (BY SRI SRIKANTH N.V., ADVOCATE FOR SRI SACHIN B.S., ADVOCATE) AND:
1. SUDHAKARA SHETTY S/O. KANTTAPPA SHETTY AGED ABOUT 43 YEARS, R/AT NARSI SADANA, MALLUR VILLAGE, UDUPI TALUK & DISTRICT – 576 101.
2. THE UNITED INDIA INSURANCE CO. LTD., REP. BY ITS DIVI. MANAGER, JEWEL PLAZA, MARUTHI VITHIKA ROAD, UDUPI – 576 101. ... RESPONDENTS (BY SRI RAVISH BENNI, ADVOCATE FOR R-2; R-1 - SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.02.2018 PASSED IN MVC NO.1107/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, & ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Even though this appeal is listed for admission, with the consent of learned counsel for the Appellant and respondents, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant against the judgment and award rendered by the Tribunal in MVC No.1107/2016 dated 15.2.2018 wherein the Tribunal has awarded compensation in a sum of Rs.1,83,088/- with interest at 7% p.a. Being aggrieved by the inadequacy of quantum of compensation awarded by the Tribunal. This appeal is filed.
3. The facts of the case is as follows:-
That on 9.3.2016 at 10.30 am near Reshma Bar and Restaurant on H.H. 66, Udyavara village, Udupi, where the petitioner is said to be injured was driving Auto rickshaw bearing Reg. No.KA – 20D-2004 from Udyavara side towards Katapady in a slow and cautious manner. At that time, the car bearing Reg No.KA 20Z 3021 driven by its driver from Udupi towards Mangalore in a rash and negligent manner, dashed against the auto rickshaw. As a result of the accident, the appellant sustained simple as well as grievous injuries. The appellant was taken to Government Hospital and admitted as inpatient from 9.3.2016 to 12.03.2016. During that period, X rays were taken and expertise treatments were given. The appellant has spent considerable amount for the purpose of food, nourishment, attendant, conveyance and other incidental expenses. The appellant as a auto rickshaw driver, earning Rs.15,000/- p.m. On account of the accidental injuries, the appellant was unable to do the driving work and also suffered loss of income for a period of 6 days. On this ground, the appellant has sought for compensation in the claim petition from the respondents.
On service of notice, the first respondent has filed written statement and contended that it is due to the negligence on the part of the car driver, the accident has taken place. According to first respondent, it is due to the negligence of the appellant himself the accident has taken place and also denied the amount spent for the purpose of food, nourishment, conveyance, medical expenses and other incidental expenses. Hence prayed to dismiss the petition.
The second respondent has also filed written statement and contended to the negligence of the car driver the accident took place and negligence of the appellant himself the accident has taken place. The income avocation, loss of income loss of future income as calculated by the appellant has been denied and sought for dismissal of the petition.
Based upon the pleadings, the tribunal has framed the issues as stated in the judgment and award and on behalf of appellant – PW1 appellant himself and PW2 Dr. Harish R. Nayak has been examined and marked documents as Ex P1 to Ex.P14. There is no evidence led on behalf of the respondents.
However, the Tribunal considering the evidence of PW1 has awarded a total compensation of Rs.1,83,088/- payable by the respondents jointly and severally with interest at 7% p.a. from the date of petition till the date of payment.
4. The learned counsel for the appellant contended that the injured appellant was driving autorickshaw and he was earning Rs.15,000/- p.m. On account of the accidental injuries, the appellant was unable to drive the vehicle as he was driving earlier and also suffered loss of income for a period of 6 days where he has been admitted in the hospital as inpatient. The Tribunal has erroneous awarded a compensation towards paid and suffering at Rs.25,000/- which is on the lower side. Even the compensation awarded in respect of loss of future income is also found to be on the lower side. It is stated that the appellant has sustained collar bone fracture. But however according to the evidence of PW2, the petitioner has sustained disability towards both upper limbs. The disability is not based upon the calculation. Therefore the Tribunal has notional income of Rs.9000/- p.m. and 8% disability, which is on the lower side. Therefore, the compensation is liable to be enhanced in all the heads by the Tribunal.
5. Per contra the learned counsel for the Insurance Company submitted that the Tribunal considering Ex.P2- wound certificate, Ex.P3- spot mahazar and Ex.P6 sketch and MV report and Doctor certificate and Ex.P11-disability certificate, has suitable awarded a total compensation of Rs.1,83,088/- with interest at 7% p.a. from the date of petition till the date of realization. The petitioner was driver of the autorickshaw and earning Rs.15,000/- p.m.. There is no proof to seek enhancement of compensation under all the heads awarded by the Tribunal. Therefore, seeks dismissal of the appeal.
6. I have heard the learned counsel for both the parties. The occurrence of the accident, place of the accident and negligence on the part of the driver of the vehicle are not in dispute. The accident has occurred at 10.30 a.m. as reflected in the claim petition. In this appeal, the wound certificate reveals that the appellant sustained injuries. There is no dispute that I.O has conducted spot mahazar as per Ex.P3 and marked sketch as per Ex,.P6. These are the documentary evidence which reveals that injured has been treated by PW2. But in this appeal, re-appreciation of evidence is required in respect of evidence of PW1 and PW2 relating to the compensation. The Tribunal has awarded has only Rs.25,000/- Therefore, it is required to be enhanced by Rs.10,000/-. Similarly the loss of income awarded by the Tribunal is Rs.1,20,960/-. The tribunal has taken Rs.9000/- p.m. It ought to have taken Rs.9500/- per month as the accident as occurred in the year 2016. Considering the price of index and eyar of accident, the income is taken at Rs.9500/- p.m. Keeping in view of the income of the injured the driver, a sum of Rs.1,27,680/- (Rs.9500(income) x 12(months) x 14 (multiplier) x 8%(disability) /100) Hence I am inclined to award another sum of Rs.6720/-/- to the aforesaid amount. Towards medical expenses awarded by the Tribunal is just and proper. It does not require enhancement. Towards conveyance, food and nourishment, another sum of Rs.12,000/- is added. Regarding loss of amenities Rs.10,000/- is added and towards loss of income during laid up period is added Rs.9000/- . In all appellants are entitled for a total compensation of Rs. 2,30,800/- in place of Rs.1,83,088/- . The appeal is partly allowed. The appellant is entitled for enhanced amount of compensation of Rs.47,720/- with interest at 7% p.a. from the date of petition till the date of payment.
SD/- JUDGE nm