IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.757 OF 2014 [MV] BETWEEN GANESHA, S/O. RAJAPPA, AGED ABOUT 27 YEARS, R/AT 2ND MAIN, 1ST CROSS, S.J.M. NAGARA, DAVANAGERE-577 502.
... APPELLANT (BY SRI. K. SRIKANTH PATIL, ADVOCATE) AND 1. H.R. NAVEEN, S/O. RUDRAPPA, AGE 26 YEARS, OCC:DRIVER, R/AT HOGARE HALLI VILLAGE AT & POST, BIRUR HOBLI, KADUR TALUK, CHIKMAGALUR DIST-577 548.
2. H.J. PRABHUKUMAR, S/O. JAYANNA, AGE 42 YEARS, OCC: OWNER OF VEHICLE, R/AT G. THIMMAPURA VILLAGE, KADURHALLI POST, KADUR TALUK, CHIKMAGALUR DIST-577 548.
3. THE ORIENTAL INSURANCE CO. LTD, BRANCH OFFICE, NAGA NIRMALA COMPLEX, 1ST FLOOR, BASAVANAHALLI, CHIKMAGALUR-577 101.
... RESPONDENTS (BY SRI. ANANDARAMA K, ADVOCATE OF M/S. ANANDARAMA & PRASHANTH FOR R-1, SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R-3, R-2 SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.02.2013 PASSED IN MVC NO.50/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, KADUR CHIKMAGALUR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMOPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Aggrieved by the inadequacy of compensation awarded by the Tribunal, the claimant has preferred this appeal seeking enhancement of compensation.
2. I have heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for the respondent No.3-Insurance Company.
3. It is the case of the appellant/claimant that on 09.11.2010 at about 6.45 p.m., while he was traveling in a motor cycle bearing registration No.KA- 17/X-2805 along with one Nagaraj from Birur to Gulladamane and when he reached near the Garden of Prakash on Birur Lingadahalli Road, near Hogarehalli, one Hero Honda CD Deluxe bearing registration No.KA- 18/S-2683, ridden by its rider in a rash and negligent manner from opposite direction, dashed to the motor cycle. Due to the said accident, both fell down and sustained injuries all over the body. The appellant was shifted to PKS Hospital, Birur and after receiving first aid, he was shifted to Bapuji Hospital, Davanagere and took treatment as an in-patient for the injuries sustained by him.
4. It is the further case of the claimant that he was the Owner and driver of Auto rickshaw and earning a sum of Rs.9,000/- per month and out of the said earnings, he was maintaining his family and due to the accident, he has sustained fractures to his right leg and he has suffered a permanent disability to an extent of 35% to the whole body and he is not in a position to drive the auto rickshaw etc. Claim petition was filed by the appellant seeking a total compensation of Rs.5 Lakhs.
5. Before the Tribunal, the claimant got himself examined as PW-1 and got marked Exs.P-1 to P-52. On behalf of the respondent, Ex.R-1, the Insurance policy was got marked. The doctor who treated the insured was examined through the Court Commissioner.
6. The Tribunal after considering the evidence and material on record, pleased to award a total compensation of Rs.1,73,600/- with interest at the rate of 6% per annum, under the following heads:
7. The learned counsel for the appellant contended that the claimant was aged about 24 years and he was eking out his livelihood by driving the auto rickshaw and on account of the accident, he suffered permanent disability to an extent of 35% to the whole body as such the Tribunal was not justified in taking the disability at 15%. He further submits that the appellant was earning a sum of Rs.9,000/- per month as owner-cum-driver of the auto rickshaw and he was maintaining his family out of the said earning. However, the Tribunal has taken the income of the claimant at Rs.3,000/- per month which is on the lower side. Accordingly, seeks to allow the appeal by modifying judgment and award passed by the Tribunal.
8. Per contra, the learned counsel appearing for the Respondent No.3-Insurance Company justified the judgment and award passed by the Tribunal contending that the total compensation awarded by the Tribunal is just and reasonable and does not call for interference and accordingly he seeks to dismiss the appeal.
9. The appellant sustaining injuries in a road traffic accident involving the Hero Honda CD Deluxe bearing registration No.KA-18/S-2683 which was insured with the Respondent No.3-Insurance Company is not in dispute. The rash and negligence on the part of the rider of the said motor cycle is also not disputed.
10. The Tribunal has awarded a compensation of Rs.1,73,600/- with interest at 6% per annum towards injuries sustained by the appellant. The Tribunal has taken the income of the appellant at Rs.3,000/- per month. According to the appellant, he was eking out his livelihood by driving an auto rickshaw. Apart from the oral evidence of the appellant-PW1, there is no other acceptable evidence placed on record to show that he was earning a sum of Rs.9,000/- per month. However, taking into consideration that the accident is of the year 2010, I am of the view that, the income taken by the Tribunal is on the lower side. The notional income of the appellant-claimant is taken at Rs.5,500/- per month. The Tribunal has assessed the disability to an extent of 15% to the whole body as against the evidence of the doctor – CW1 who has deposed that the injured has suffered a total disability of 35% to the whole body.
11. The learned counsel for the Insurance Company vehemently contended that the medical evidence cannot be taken into consideration because there is no proper assessment by the doctor. Though the disability was assessed by the doctor, the same has not been clarified and the doctor has not assessed the disability in respect of the particular limb and therefore, the Tribunal was proper in taking the disability at 15% to the whole body. Considering the nature of injuries sustained, the avocation of the appellant and also considering the evidence of doctor, the disability to the whole body at 15% taken by the Tribunal is on the lower side. The disability to the whole body is therefore taken at 20%.
12. The appellant was aged about 24 years at the time of the accident and the appropriate multiplier applicable to his age is 18. Therefore, the appellant- claimant is entitled for a sum of Rs.2,37,600/- (Rs.5,500/-x12x18x20/100) towards ‘loss of future income’ as against Rs.97,200/- awarded by the Tribunal.
13. The Tribunal has awarded a sum of Rs.15,000/- under the head ‘pain and suffering’. The appellant has sustained fracture of right leg bones. There was a steel plate inserted to the leg. Considering the nature of injuries sustained, I deem it proper to award a sum of Rs.30,000/- towards ‘pain and suffering’. The compensation of Rs.4,200/- awarded under the head ‘attendant and nutritious food, conveyance charges’ is enhanced to Rs.5,000/-. The Tribunal has awarded a sum of Rs.3,000/- towards ‘loss of income during the period of treatment’, the same is enhanced to Rs.11,000/-. The compensation of Rs.10,000/- awarded under the head ‘loss of amenities’ is enhanced to Rs.20,000/-. The compensation awarded under the head ‘medical expenses, future medical expenses and loss of discomfort’ are just and proper and does not call for interference. Therefore, the appellant is entitled for a total sum of Rs.3,47,800/- with interest at 6% per annum, as
03. Attendant and nutritious food etc., and conveyance charges Rs.5,000-00 04 Future Medical expenses Rs.25,000-00 05 Loss of income during treatment and laid up period 06 Loss of discomfort and amenities Rs.11,000-00 Rs.20,000-00 07 Loss of future income Rs.2,37,600 TOTAL Rs.3,47,800-00 14. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 21.02.2013 passed by the Senior Civil Judge and M.A.C.T., Kadur, Chikmagalur in MVC No.50/2011 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.3,47,800/- as against Rs.1,73,600/- awarded by the Tribunal with interest at the rate of 6% per annum, from the date of petition till the date of deposit.
The Respondent No.3-Insurance Company shall deposit the compensation amount within four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE snc