IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF *APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.7805/2012 (MV) BETWEEN HARISHA S/O BASAPPA NERAGALALE VILLAGE, (RAYARAKOPPALLU) K.H.KOTE HOBLI, ALUR TALUK, HASSAN DIST. PRESENTLY R/AT C/O MANJU, BASATTIKOPPALLU, HASSAN CITY, HASSAN ... APPELLANT (BY SRI BYRA REDDY G.S., FOR SMT. KAVITHA H.C., ADVOCATE) AND 1. M/S RRC INTERNATIONAL FREIGHT SERVICE LIMITED, PLOT NO. 202, DIAMOND WAREHOUSE, MANGALAMOORTHI PETROL PUMP, DAISAR MORI, *Corrected Disposal date as 2nd April 2019 Vide Chamber Order dated 22.06.2019 THANE-410208, MAHARASHTRA STATE REPRESENTED BY ITS PROPRIETOR 2. THE DIVISIONAL MANAGER (CRIME DIVISION), BHARATHI AX-GENERAL INSURANCE CO. LTD,, FIRST FLOOR, FARMS ICON, SURVEY NO. 28, NEXT ACME-BALLET, DODDANAKUNDI, OPP. TO OUTER RING ROAD, BANGALORE-560 037 ... RESPONDENTS (BY SRI H N KESHAVA PRASHANTH, ADVOCATE FOR R2; R1-NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.01.2012 PASSED IN MVC NO.1097/2011 ON THE FILE OF THE PRESIDING OFFICER AND ADDL. MACT, FAST TRACK COURT-I, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is listed for admission, the same is taken up for final disposal with the consent of the learned counsel appearing for both the parties.
2. I have heard the learned counsel for the appellant/claimant and the learned counsel appearing for the 2nd respondent/Insurance Company.
3. The injured/claimant has filed this appeal seeking enhancement of compensation awarded by the Tribunal, wherein a total compensation of Rs.4,19,000/- has been awarded for the injuries sustained by him in a road traffic accident.
4. Brief facts of the case are that on 24.03.2011 at 4.30 p.m., the appellant was proceeding near Shanidevara temple on Hassan-Sakaleshpur Road at Byrapura Village in Hassan District, with his bike, by walking and his brother-in-law was pushing the bike. At that time the driver of a lorry bearing registration No.MH-04/EY-3272 by driving the lorry in a rash and negligent manner dashed against the appellant, as a result of which he sustained injuries and shifted to the hospital for treatment. It is the further case of the appellant that on account of the accidental injuries he suffered permanent disability. He was an Agriculturist by profession and due to the disability suffered by him he is not in a position to work and he has lost his earning capacity, etc.
5. The appellant sought for a total compensation of Rs.20,00,000/- before the Tribunal and he examined himself as PW1 and examined the Doctor as PW2. Exs.P1 to P14 were marked in evidence. On behalf of the respondents no evidence was let in.
6. The Tribunal after considering the oral and documentary evidence on record, awarded a compensation of Rs.4,19,000/- with interest at 6% per annum from the date of petition till the date of realization.
7. Seeking enhancement of compensation, the learned counsel for the appellant would submit that, according to the Doctor the appellant has suffered 100% disability to both the legs. Therefore, the Tribunal was not justified in assessing the disability at 30%. He further submitted that the total compensation awarded is not commensurate with the injuries sustained by the appellant, therefore, he sought for enhancement of the compensation.
8. Learned counsel for the Insurance Company would contend that the Tribunal has awarded just and reasonable compensation and there are no grounds to interfere with the findings of the Tribunal. Accordingly, he seeks to dismiss the appeal.
9. The accident in question, involving the lorry bearing registration No.MH-04-EY-3272, on account of which the appellant sustaining injuries owing to the actionable negligence on the part of the driver of the said lorry, is not seriously disputed.
10. The case of the appellant is that he was an Agriculturist by profession, aged about 28 years at the time of accident and he was earning Rs.10,000/- per month and he has suffered permanent total disability to both his legs. To appreciate the contention of the learned counsel appearing for the appellant, it is relevant to see that apart from the evidence of PW1, there is no other corroborative piece of evidence to establish that the appellant was earning a sum of Rs.10,000/- per month. The Tribunal has taken the income at Rs.4,000/- per month. Considering the fact that the appellant was an Agriculturist which is not seriously disputed and also considering the fact that the accident is of the year 2011, I am of the considered opinion that the income of the appellant would be taken as Rs.6,500/- per month as against Rs.4,000/- taken by the Tribunal. In so far the disability is concerned, the medical evidence on record goes to show that the appellant had suffered complete paraplegia with bowel and bladder involvement. There was compression fracture T8 vertebra. The Doctor is examined as PW2. According to PW2 there was 100% disability in respect of both limbs. The Tribunal after considering the Disability Certificate which is marked as Ex.P10 and the evidence of PW2 has assessed the disability at 30%.
11. According to the appellant he was an Agriculturist.
The Doctor has assessed the disability to the lower limbs at 100%. Considering the evidence of Doctor and also considering the avocation of the appellant, the functional disability suffered by the appellant is assessed at 40% to the whole body.
12. The Tribunal has awarded a sum of Rs.15,000/- towards pain and suffering. The injuries suffered by the appellant is noted as under:
1. Complete paraplegia with T8 burst fracture with bowel and bladder involvement 2. Abrasion right buttocks 3. Abrasion right wrist 13. Appellant was in the hospital as inpatient from 24.03.2011 to 12.04.2011. Considering the nature of injuries sustained by him and the period of treatment and disability suffered, the compensation awarded towards pain and suffering is enhanced to Rs.40,000/-. The compensation of Rs.2,000/- awarded towards loss of income during treatment period is enhanced to Rs.10,000/-. The compensation of Rs.5,000/- awarded towards attendant charges is enhanced to Rs.15,000/- under the heads conveyance, attendant charges and food and nourishment.
14. The income of the appellant has been assessed at Rs.6,500/- per month and disability has been assessed at 40% to the whole body, the appellant was aged about 28 years at the time of accident, therefore, the appropriate multiplier is 17. Hence, the appellant is entitled for a sum of Rs.5,30,400/- towards loss of future earning due to disability, as against Rs.2,45,000/- awarded by the Tribunal.
15. The Tribunal has come to the conclusion that the appellant has produced medical bills as per Ex.P7 to the tune of Rs.2,43,437/-. Though the respondent has disputed the medical bills, the same is not established that the medical bills does not pertain to the appellant. Hence, the said amount has to be awarded towards medical expenses.
16. In all the appellant is entitled for a total compensation of Rs.8,38,837/- which is rounded of to Rs.8,39,000/- as against Rs.4,19,000/- awarded by the Tribunal. Hence, I pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated 16.01.2012 passed by the Tribunal in MVC No.1097/2011 on the file of the Court of Fast Track Court-I and Additional M.A.C.T., at Hassan is hereby modified.
iii. The appellant is entitled to total compensation of Rs.8,39,000/- with interest at 6% per annum from the date of petition till the date of realization, as against Rs.4,19,000/- awarded by the Tribunal.
iv. The 2nd respondent-Insurance Company shall deposit the amount within a period of four weeks from the date of receipt of a copy of this judgment.
v. Out of the total compensation awarded, 50% shall be deposited in the name of the appellant in any Nationalized Bank for a period of five years. The remaining 50% shall be released to the appellant.
SBS* Sd/- JUDGE