IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL No.9580 OF 2018 (MV) BETWEEN:
H.V. Vasu @ Vasanna S/o Venkategowda, Aged about 42 years R/o Hangarahalli Village, Halekote Hobli, Holenarasipura Taluk, Hassan District – 573 201. …Appellant (By Sri. Vijaykumar .T, Advocate) AND:
1. The Manager TATA AIG General Insurance Co. Ltd., Peninsula Corporate Park, Nicholas Piramal Tower, 9th Floor, Ganapatro, Kadam Margo, Laayer Paeral, Mumbai.
Rep. by TATA AIG Regional Manager TATA AIG General Insurance Co. Ltd., Regional Office, JP and Devi, Jambukeshwara Arcade, No.69, Wilson Road, Bengaluru – 560 027.
2. Mahesha M.T.
S/o Thimmegowda, Major R/o Mukundur Mallenahalli Village, Malldevapura Post, Kattaya Hobli, Hassan Taluk & District – 573 201. … Respondents (By Sri. B. Pradeep, Adv. for R1; Notice to R2 is dispensed with ) This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act against the judgment and award dated 30.08.2018 passed in MVC No.104/2014 on the file of the Senior Civil Judge & MACT, Holenarasipur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the claimant challenging the judgment and award dated 30.08.2018, passed by the Senior Civil Judge and M.A.C.T. (hereinafter referred to as ‘the Tribunal’ for short) at Holenarasipur in MVC No.104/2014, whereby the Tribunal has granted compensation of Rs.3,32,725/- with interest @ 9% p.a.
2. Brief facts of the case:
On 18.012.2013 at about 3.30 p.m., the petitioner was proceeding by walk in front of Petrol Bunk, Gorur Road, at that time, the rider of the bike bearing registration No.KA-13-EA-3966 rode the same in a rash and negligent manner with high speed and dashed against the petitioner. Due to the accident, the petitioner fell down and sustained injuries to his left leg, right hand and other parts of the body. Immediately, he was shifted to Janapriya Hospital and taken treatment as inpatient. After recovering from the injuries, he has filed claim petition in MVC No.104/2014. To establish his case, he himself examined as PW.1 and Doctor as PW.2 and marked 43 documents. On the other hand, respondent-Insurance company neither examined the witnesses nor marked any documents. On appreciation of oral and documentary evidence, the Tribunal has granted Rs.3,32,725/- with interest @ 9% p.a. Being aggrieved by the same, the claimant/appellant has filed this appeal seeking enhancement of compensation.
3. Learned counsel for the appellant contended that due to the accident, the appellant has suffered the following injuries:
a. Left knee and ankle movements restricted and painful b. Not able to lift the weight and walk c. Patient is not able to walk for long distance d. Not able to squat e. X-ray taken and it shows fracture slightly mal united.
He further contended that Dr. Abdul Basheer was examined as PW.2 and even though in his evidence he has stated that there is disability to an extent of 30% to the left lower limb, but the Tribunal has taken only 3% disability, which is on the lower side. Secondly, he has contended that the Tribunal has not granted any compensation under the category of ‘loss of amenities’. Hence, he prays for allowing the appeal by enhancing the compensation awarded by the Tribunal.
4. Per contra, learned counsel for the respondent- Insurance company submits that even Doctor has stated 30% functional disability and the claimant/appellant has not produced the documents to show that after accident there is loss of income. Therefore, the Tribunal has rightly considered the disability to an extent of 3% to the whole body. He further contended that under other categories, the Tribunal has granted excess compensation. Hence, he is not entitled for the compensation under the category of loss of amenities. Hence, he prays for dismissal of the appeal.
5. Heard the learned counsel for the parties and perused the records.
6. It is not in dispute that the petitioner suffered grievous injuries in a road traffic accident that occurred on 18.12.2013, due to the rash and negligent riding of the rider of the bike bearing registration No.KA-13-EA-3966. Due to the injuries, he took treatment as inpatient for a period of 15 days. The petitioner got examined Dr. Abdul Basheer as PW.2 and in his evidence, he has stated that there is disability to an extent of 30% while calculating the functional disability. The Tribunal is not justified in taking only 3% of disability to the whole body. By taking into consideration the evidence of doctor and other materials on record, this Court is of the opinion that the disability has to be taken 5% for consideration of future loss of income. Accordingly, future loss of income due to the disability has been calculated as under:
25,000 x 12 x 15 x 5% = Rs.2,25,000/-.
7. Due to the accident, the appellant has suffered grievous injuries, he took treatment as inpatient for a period of 15 days and he has undergone surgery. The Doctor in his evidence has specifically stated that there is 30% disability to the left lower limb. The appellant has to suffer his disability and unhappiness throughout his life. Therefore, the Tribunal is not justified in not granting any compensation under the loss of amenities. In this circumstance, this Court is of the opinion that the appellant is entitled for Rs.25,000/- under the category of loss of amenities.
8. Accordingly, the appeal is partly allowed. The judgment and award passed by the Tribunal is modified as under:
9. The Insurance Company is directed to deposit with the learned Tribunal, the entire compensation amount, along with an interest @ 9% per annum, from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of the certified copy of this judgment. The Tribunal is directed to disburse the amount in terms of the award passed by the Tribunal after due verification.
Sd/-
JUDGE MBM