IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 4358 OF 2013 (MV) BETWEEN Smt. Gangamma W/o Hanumantharayappa Aged about 41 Years Residing at Mangalavada Village & P.O. Nidagallu Hobli Pavagada Taluk Tumkur District.
(By Sri. P. Shivakumar, Advocate) AND ... Appellant 1. ICICI Lombard General Insurance Co. Ltd. No.89, 2nd Floor SVR Complex Madivala, Hosur Road Bangalore-560 068 Rep. By It's Manager.
2. Sri. M. C. Lakshmana Gowda S/o Channarama Gowda M. G. Residing at No. 570, 4th Cross Mahalakshmi Layout Bangalore-560 086.
... Respondents (By Sri. B. Pradeep, Adv. For Respondent No.1; Sri. S. V. Prakash, Adv For Respondent No.2) This MFA is filed under section 173(1) of MV Act against the judgment and award dated 20.02.2013 passed in MVC No.2851/2012 on the file of the XIII Additional Small Cause Judge and Member, MACT, Court of Small Causes, Bengaluru, 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, with the consent of learned counsel on both sides, the matter is taken up for final disposal.
2. This appeal is preferred by the appellant/claimant against the judgment and award dated 20.02.2013 rendered by the MACT, Bangalore in MVC No.2851/2012 seeking enhancement of the compensation.
The factual matrix of the appeal is as under:
3. It is stated in the claim petition that on 1.4.2012 at about 2.00 p.m. the petitioner along with others was sitting on a concrete slab on Tumkur Bangalore – NH-4 service road, near Subhashnagar, Nelamangala Town, and at that time a maruthi car bearing No.KA-02 MF 3316 came from Sondekoppa circle in a rash and negligent manner and dashed against them. Due to the said impact the petitioner sustained grievous injuries. Immediately, after the accident the petitioner was shifted to Harsha hospital, Nelamangala wherein she took treatment and thereafter she was shifted to Krishna Nursing Home and was admitted as an inpatient for 3 weeks. It is contended that she has sustained fracture of femur and fracture of humerus, type III compound fracture of left leg, comminuted segmental fracture of right humerus and underwent surgery and undergone amputation of the left leg and discharged with an advise to take follow up treatment. She has contended that she has spent Rs.3 lakhs towards medical expenses, food, nourishment and conveyance. On these grounds, the claim petition was filed before the Tribunal seeking compensation.
4. On service of notice, respondents no.1 and 2 entered appearance and filed written statements denying the petition averments.
5. Based upon the pleadings, the Tribunal framed the issues. In order to prove the claim, the appellant was examined as PW.2 and got examined three more witnesses as PW.4 to PW.6 and got marked documents as per Exs.P1 to P47. Respondents examined two witnesses as RW.1 and RW.2 and got marked Exs.R1 to R7. The Tribunal after hearing arguments of learned counsel on both sides, passed the impugned judgment, awarding total compensation of Rs.11,37,425/- with interest @ 6% p.a. on Rs.9,87,425/- (excluding future medical expenses) from the date of petition till deposit. Being not satisfied with the compensation awarded by the Tribunal, the appellant/claimant has preferred this appeal seeking enhancement of compensation, by urging various grounds.
6. Learned counsel for the appellant contends that the Tribunal has erred in not assessing the disability properly while calculating the loss of future earnings. The appellant has underwent amputation of left leg and due to the amputation of left leg and fracture of right humerus, she cannot work and thereby has suffered 100% of loss of earning capacity. Hence, the compensation under this head deserves to be enhanced. Further, it is contended that the Tribunal has awarded less compensation under the head pain and sufferings and food, conveyance and attendant charges and the same needs to be enhanced. The amount awarded towards future medical expenses also needs to be enhanced. It is pertinent to note that the doctor who examined as PW.6 has clearly deposed that the appellant needs Rs.3,50,000/- for orthrotic desises, Rs.15,000/- for annual maintenance and Rs.25,000/- for removal of implants. It is contended that the compensation awarded by the Tribunal is highly disproportionate and accordingly, needs to be enhanced. On all these grounds, learned counsel for the appellant prays for allowing the appeal.
7. Counter to the arguments advanced by learned counsel for the appellant, learned counsel for the respondent – insurer contends that the accident has not occurred due to rash and negligent driving of the offending vehicle and disputes the involvement of the vehicle itself. It is contended that in order to get the compensation, the vehicle in question is falsely implicated and that the petitioner has sustained injury due to involvement of unknown vehicle. The accident has taken place due to contributory negligence on the part of the petitioner also. It is further contended that the Tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the petitioner and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. Keeping in view the arguments advanced by the learned counsel for the appellant and so also learned counsel for the respondents stated supra, it is relevant to state that there is no dispute about the injuries sustained by the appellant in a road traffic accident. Ex.P11 is the wound certificate which reveals that the appellant has sustained avulsion of skin below knee contusion, Type III compound fracture left leg, crush of the mot muscles of left leg, comminuted segmental fracture of right humerus and lacerated wound on left cheek. Ex.P.14 is the discharge summary which reveals that appellant was admitted to the Hospital on 3.4.2012 and discharged on 23.4.2012. Ex.P.30 is the authorisation letter, Ex.P.31 is the case sheet, Ex.P.32 is x-ray, Ex.P.32 is the CT scan, Ex.P.42 is the recent examination report, Ex.P43 and P44 are the case sheets and Ex.P.45 is the x-ray films.
9. PW.6, Doctor in his evidence has deposed that petitioner has suffered amputation of left knee to an extent of 70% and 42% to the whole body. The Tribunal while assessing the compensation towards loss of future earning has taken income of the injured being a coolie at Rs.5,000/-p.m. and has applied multiplier of 14 by taking the age of appellant as 45 years. Further, the Tribunal has taken 60% as the disability to the whole body. But keeping in view the year of accident and the avocation of the appellant, it is appropriate to take income as Rs.7,000/- as against Rs.5,000/- assessed by the Tribunal. The percentage of disability and the multiplier adopted by the Tribunal appears to be just and proper. Accordingly, the compensation towards the head ‘loss of future income’ would be Rs.7,05,600/- (Rs.7,000 x 12 x 14 x 60%) as against Rs.5,04,000/- awarded by the Tribunal.
10. Further, the Tribunal has awarded Rs.1,50,000/- towards future medical expenses. PW.6 has advised the appellant to have orthrotic desises which costs Rs.3.50 lakhs to 4.00 lakhs and its maintenance charges per year is Rs.15,000/-. But having regard to the nature of injuries sustained by the appellant and the evidence of PW.6 – Doctor, it would be appropriate to award another sum of Rs.25,000/- towards future medical expenses. However, the compensation awarded by the Tribunal under other heads is just and reasonable and does not call for interference.
11. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Compensation Particulars awarded by MACT Compensation by this Court
Therefore, in all the claimant is entitled to Rs.13,64,025/- as against Rs.11,37,425/- and the enhanced compensation would be Rs.2,26,600/-. For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.2,26,600/- with interest @ 6% p.a. from the date of petition till realisation. The impugned judgment and award rendered by the Tribunal in MVC No.2851/2012 is modified accordingly.
Respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
Sd/- JUDGE DKB