IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.915 OF 2014 (MV) BETWEEN G.R. RAVIKUMAR, S/O. RAMEGOWDA, AGED ABOUT 34 YEARS, R/O. BHARATH RESTAURANT, GOWADARAHALLI, BALAGANCHII POST, HIREESAVE HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573 201. ... APPELLANT (BY SRI. Y.N. PAVAN KUMAR, ADVOCATE) AND 1. BIJU JOSEPH S/O. JOSEPH, AGED ABOUT 45 YEARS, R/O. KOONANANICKAL HOUSE, VOZHITHALA POST, THODUPUZHA, IDUKKI DISTRICT, KERALA-685 583.
2. THE NATIONAL INSURANCE CO. LTD, BRANCH OFFICE, 1ST FLOOR, PULLIMOTTI, SHOPPING ARCADE, THODUPUZHA, IDUKKI DISTRICT, KERALA-685 583. ... RESPONDENTS (BY SRI. K.S. LAKSHMINARASAPPA FOR SRI. B.C. SEETHARAMA RAO, ADVOCATES FOR R2, R1 SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.03.2013 PASSED IN MVC NO.811/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, KUNIGAL, 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 The injured-claimant in this appeal is seeking enhancement of compensation awarded by the Tribunal in MVC No.811/2010 on the file of the Court of Senior Civil Judge and JMFC and Additional MACT, Kunigal, wherein a total compensation of Rs.1,56,000/- has been awarded for the injuries sustained by the appellant 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. It is the case of the appellant/claimant that on 21.04.2010 at about 12.30 p.m. while he was traveling in a Tata Sumo bearing Registration No.KA- 04-A-9543 at C.T. Palya Cross, NH-48, B.M. Road, Kunigal Taluk, one Innova bearing registration No.KL- 5-Y-1660 driven by its driver in a rash and negligent manner, dashed against the Tata Sumo and on account of the said accident, he sustained grievous injuries and shifted to City Health Centre and thereafter shifted to Mathrushree Hospital, Nelamangala.
4. It is his further case that due to the accident, he suffered permanent disability and lost his earning capacity as he is unable to attend to his regular work. A total compensation of Rs.15 Lakhs was sought before the Tribunal.
5. The appellant got himself examined as PW-1 and the doctor as PW-2, Exs.P1 to P-19 were marked. On behalf of the respondent, no evidence was let in.
6. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.1,56,000/- with interest at 6% per annum from the date of petition till its deposit.
7. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel appearing for the appellant would contend that the appellant was running a bar and restaurant and due to the accident, he has suffered permanent disability to an extent of 40% to the left hip and he is unable to do his regular work and therefore the Tribunal was not justified in not awarding any compensation towards ‘loss of future income’. It is his further submission that the compensation awarded under the other heads are also on the lower side and accordingly seeks to enhance the compensation awarded by the Tribunal.
8. Per contra, the learned counsel appearing for the respondent No.2– Insurance Company would contend that the injuries sustained by the appellant and the disability suffered has not resulted in any loss of income as there is no occupational disability. The alleged disability is not a functional disability and therefore, the Tribunal was justified in not awarding any compensation under the head ‘loss of future income’. He further contends that the compensation awarded is just and reasonable in the facts and circumstances of the case and accordingly, seeks to dismiss the appeal.
9. The accident in question involving the offending car bearing registration No.KL-5-Y-1660 and the actionable negligence on the part of the driver of the said car is not in dispute. Respondent No.2 is the Insurer of the said vehicle.
10. The Tribunal while awarding the compensation, fixed the liability on the Insurer- Respondent No.2 herein. It is the contention of the learned counsel for the appellant that according to the doctor – PW2, the claimant has suffered disability to an extent of 40% to the left hip and the disability to the whole body is at 13%. He would submit that the appellant cannot walk briskly and squat and he is not able to attend to his regular work and hence he is entitled for reasonable compensation towards ‘loss of future income’.
11. According to the Wound certificate – Ex.P4, the appellant has suffered three fracture injuries out of which, two fractures i.e., fracture of left radial styloid in left forearm and fracture of right acetabulam of the right hip bone, which was later clarified as left acetabulam. The evidence of the doctor discloses that there was difficulty for the appellant in squatting- sitting crossly, difficulty in climbing and running. According to PW-2, there was 40% disability to the left hip and 13% to the whole body. He has also stated that the appellant needs to undergo two more surgeries i.e., (1) scar excision costing Rs.16,000/- and (2) implants removal costing Rs.30,000/-.
12. The Tribunal having considered the material on record, noticed that the fractured bone of the petitioner have well united and further observing that there is no occupational disability held that it is not possible to believe that the appellant has suffered 40% disability to the left hip. The Tribunal has also observed that there is no actual fall in the income of the appellant since the income tax returns as per Exs.P11 and 12 revealed that there has been an increase in the income of the appellant.
13. Though it is not established that there is no fall of income or there is no loss of income due to disability, however, the fact remains that the appellant has suffered disability to an extent of 40% to his left hip which is about 13% to the whole body. There is nothing elicited in the cross-examination of PW-2 to disbelieve the same. The Tribunal is not justified in refusing to grant any compensation for the said disability suffered by the appellant. The concept of just compensation obviously suggest application of fair and equitable principle of reasonable approach on the part of the Tribunal and courts.
14. The Hon’ble Apex Court in the case of GOVIND YADAV VS. NEW INDIA INSURANCE COMPANY LIMITED reported in (2011) 10 SCC 683, at para 18 has held that:
“In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Company Ltd. (supra) and Raj Kumar v. Ajay Kumar (supra) must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”
15. Considering the nature of injuries and the disability suffered by the appellant and keeping in view the medical evidence and also the decision noted supra, I am of the view that the appellant is entitled for a just and reasonable compensation towards the disability suffered by him. The compensation awarded by the Tribunal towards loss of amenities is also on the lower side. In view of the same, I deem it appropriate to award a global compensation of Rs.1,50,000/- in addition to what has been awarded by the Tribunal. The compensation awarded under other heads are undisturbed.
16. For the foregoing reasons, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 08.03.2013 passed by the Senior Civil Judge and JMFC and Addl. MACT, Kunigal in MVC No.811/2010 is hereby modified.
The appellant is entitled for an enhanced compensation of Rs.1,50,000/- 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 its realization.
The Respondent No.2-Insurance Company shall deposit the compensation amount within four weeks from the date of receipt of the copy of this Order.
snc Sd/- JUDGE