IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR MISCELLANEOUS FIRST APPEAL No.801/2017 (MV) BETWEEN:
H.S.Nandeesh S/o Shivaram Aged 36 years R/o Hulivana Village Keragodu Hobli, Mandya Taluk Mandya District-571401 Now R/at No.172, 6th Cross Maruthinagara 2nd Stage Mahadeshwaranagar Vishwaneedam Post Bengaluru-560 009 (By Sri Pramod R., Advocate) AND:
.. Appellant 1. Manikanta H.M. S/o Madegowda Aged Major R/o Hullenahalli Village & Post Mandya Taluk Mandya District 571 401 2. The Divisional Manager Oriental Insurance Company Limited Divisional Office Gandhinagara Bengaluru-560 009 .. Respondents (By Sri C.R. Ravishankar, Advocate for R2, Notice to R1 – D/W) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 21.06.2011 passed in MVC No.8666/2009 on the file of the XVIII Additional Judge, Court of Small Causes, Member- MACT-4, 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 This appeal filed by the claimant is directed against the judgment and award dated 21.06.2011 passed in MVC No.8666/2009 on the file of the Court of Small Causes, MACT, Bangalore, SCCH-4, at Bengaluru, whereby the Tribunal awarded a sum Rs.3,84,800/- together with interest at 6% p.a. from the date of the claim petition till realization towards compensation on account of injuries sustained by the claimant, who is aged about 28 years in a road traffic accident that occurred on 19.03.2009.
2. Though the matter is listed for admission, with the consent of both the leaned counsel, the matter is taken up for final disposal.
3. Both the learned counsel submit that the occurrence of accident as well as coverage of policy of the offending vehicle by the respondent No.2 – Insurance Company is not in dispute and that the appeal is restricted to quantum of compensation awarded in favour of the appellant.
4. I have heard the learned counsel for the appellant as well as learned counsel for the respondent- Insurance Company and perused the material on record.
5. Learned counsel for the appellant submits that the Tribunal committed an error in taking notional income of the appellant as Rs.3,000/- p.m. instead of Rs.5,000/- p.m, as per the guidelines of the Lok Adalath in view of the undisputed fact that the accident took place in the year 2009. It is therefore contended that by taking notional income as Rs.5,000/- p.m., the appellant is entitled to enhanced compensation under the head `loss of future earning due to permanent disability’. It is further contended by the learned counsel that the Tribunal has erred in awarding meager compensation on all other heads.
6. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. Considering wound certificate Ex.P-5 of the claimant and as per the evidence of PW-2, doctor in his evidence has stated that the claimant has suffered disability of 100% and to the whole body is 90% 7. Considering the nature of injuries by the claimant, a sum of Rs.50,000/- awarded by the Tribunal towards ‘pain and suffering’ is on the lower side and it is deserved to be enhanced by another Rs.50,000/- and I award Rs.1,00,000/- under this head.
8. As Rs.25,000/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the claimant there is no scope for enhancement under this head.
9. As Rs. 15,000/- awarded by the Tribunal considering the duration of treatment taken by the claimant is just and proper and there is no scope for enhancement under this head.
10. Rs.1,75,000/- awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges as against Rs.25,000/- awarded by the Tribunal. and I award Rs.2,00,000/- under this head.
11. The claimant claims to be working as a agriculturist and earning a sum of Rs.10,000/- per month, but the same is not established by producing any documents. Admittedly the accident is of the year 2009. This Court assessed the income, even in a case where it has not been proved by considering the price index, cost of living and life style etc., at Rs. 5,000/-
p.m. as against Rs.3,000/- per month assessed by the Tribunal.
12. Considering the nature of injuries sustained by the claimant, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.75,000/- is awarded towards ‘loss of amenities’ in addition to Rs.25,000/- awarded by the Tribunal. In all Rs.1,00,000/- is awarded under the said head.
13. The claimant is aged about 28 years at the time of accident, and the multiplier applicable to his age group is 17. His income is assessed at Rs.5,000/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 100%. The learned counsel is also correct in contending that in the light of the law laid down by the Hon’ble Apex Court in the case of Pranay Sethi, 40% should have been added towards future prospects. Accordingly considering 40% to the notional income of Rs.5,000/- p.m. the sum would come to Rs.7,000/- p.m. Accordingly, appellant should be entitled for a total sum of Rs. 14,28,000 /- towards loss of future income as hereunder:
Rs.7000 x 12 x 17 x 100% = Rs.14,28,000/-
14. Thus, the claimant is entitled for the following compensation:-
I pass the following:
ORDER i) Appeal is hereby partly allowed.
ii) The judgment and award dated 21.06.2011 passed in MVC No.8666/2009 on the file of the Court of Small Causes, MACT, Bangalore, SCCH-4, at Bengaluru, is hereby modified awarding additional enhanced compensation in favour of the appellant in a sum of Rs.14,83,200/- with interest at 6% p.a. from the date of claim petition till realization.
The enhanced amount shall be released in favour of the appellant.
Sd/- JUDGE HR