IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.2348 OF 2016 (MV) BETWEEN:
VENUGOPAL AGED 24 YEARS S/O C. NANDEESH R/AT THOTAHALLI VILLAGE, ACHALU POST, KANAKAPURA TALUK RAMANAGARA DISTRICT – 571 511 ... APPELLANT (BY SRI.GIRIMALLAIAH, ADV.) AND:
1. IFFCO TOKIO GENERAL INSURANCE CO. LTD. SHANTHI TOWERS, 5TH FLOOR, NO.141, 3RD MAIN, EAST TO NGEF LAYOUT, KASTURINAGAR, BENGALURU – 560 043 BY ITS MANAGER 2. MARUTHI , MAJOR S/O GANGANNA NO.564, 17TH MAIN, 8TH CROSS, SIDDAPURA,JAYANAGAR, BANGALORE – 560 011 3. SRIDHARA H.G. MAJOR S/O GOVINDARAJU NO.41, JARAGANAHALLI, 4TH CROSS, GOVINDAPPA LAYOUT, J.P.NAGAR, BANGALORE ... RESPONDENTS (BY SRI.E.I.SANMATHI, ADV. FOR R1; NOTICE TO R2 & R3 ARE DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.11.2015 PASSED IN MVC NO.5398/14 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T For the injuries suffered in the road traffic accident that took place on 06th November 2014 at about 9.00 p.m., the injured made claim petition before the Principal Motor Accident Claims Tribunal, Bangalore seeking compensation. The Tribunal, by its judgment and award dated 26th November 2015 passed in MVC No.5398 of 2014 awarded compensation of Rs.5,90,200/-. Being not satisfied with the compensation awarded, the appellant is before this court in this appeal seeking enhancement.
2. The learned counsel appearing for the appellant submits that the Tribunal has committed an error in taking the monthly income of the appellant at Rs.7,000/- which the appellant has claimed that he was earning Rs.22,000/- per month by his profession as a driver. He further submits that though the Doctor who has treated the appellant has deposed that the appellant was under treatment for nine months, the Tribunal has committed an error in awarding the compensation under the head loss of income during the treatment period only for a period of seven months. The compensation awarded under the head loss of amenities is also on the meagre side. Hence, the learned counsel seeks to allow the appeal by suitably enhancing the compensation.
3. Per contra, the learned counsel appearing for the respondent-Insurer supports the award of the Tribunal and submits that the Tribunal has awarded the compensation based on the oral and documentary evidence placed before it and the same does not call for interference in this appeal. Hence, he submits to dismiss the appeal.
4. Heard the learned counsel for the parties and gone through the judgment of the Tribunal and also perused the lower court records placed before this Court. The accident is not in dispute and the appellant suffering the accidental injuries is also not in dispute. The appellant has suffered Type-III Compound Communited intra-articular fracture distal end of (Rt) femur and fracture of both bones of (Rt) leg with Patellar Tendon partial avulsion of right lower limb. The appellant has underwent surgery with internal fixation. The Doctor has opined that the injured has 45% disability to the lower limb and the Tribunal has taken it at 14% to the whole body. The appellant has claimed that he was driver by profession and was earning Rs.22,000/- income per month. But since he has not produced any documentary proof to that extent, the Tribunal has taken it at Rs.7,000/- per month. In the absence of any documentary evidence produced by the appellant to prove the claim of income, the court shall take a notional income. The notional income has to be taken based on the year of accident, number of dependents, place of residence, cost of living prevalent then, etc. In the instant case, the appellant has produced the driving licence to drive light motor vehicle. That can be taken as basis and with relevance to the year of accident which is 2014 in the instant case, this court assesses the monthly income at Rs.8,500/- per month. If the same is assessed, then the compensation under the loss of future income works out to Rs.8,500/- x 12 x 18 x 15% = Rs.2,75,400/-; and the same is awarded as against Rs.2,11,700/- awarded by the Tribunal. Considering the nature of injury and taking that the appellant should have been under rest for a period of five months, the amount under the head loss of income during the laid-up period comes to Rs.42,500/- the same is awarded as against Rs.35,000/- awarded by the Tribunal. Considering the age of the appellant and the fact that he has suffered grievous injury, I am inclined to award another Rs.25,000/- under the head pain and suffering. The appellant is the resident of Kanakapura Taluk and he was admitted to Apollo hospital at Bangalore and he was there as an inpatient for a period of seven days. Considering the period of hospitalisation and the fact that he might have incurred some incidental expenditure, I am inclined to award another Rs.25,000/- under the head conveyance, incidental, food and nourishment expenses. As the appellant has undergone surgery with open reduction and internal fixation because of which he has to suffer pain for long, I am inclined to award another Rs.30,000/- under the head loss of amenities. In all the compensation is enhanced to Rs.1,51,200/- which amount shall carry interest at the rate as is awarded by the Tribunal. In that view of the matter, including interest, awarding Rs.1.90,000/- globally, would meet the ends of justice. Accordingly, a global compensation of Rs.1,90,000/- is awarded in addition to what has been awarded by the Tribunal.
Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn