IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4100 OF 2013 [MV] BETWEEN JAYARAM B.C., S/O. CHIKKA CHANNAIAH, AGED ABOUT 52 YEARS, NO.3770, 2ND MAIN, 14TH CROSS, GAYATHRINAGAR, BANGALORE-560 020. ... APPELLANT [BY SRI. M.ANIL KUMAR, ADVOCATE] AND 1. THE DIVISIONAL MANAGER, THE UNITED INDIA INS. CO. LTD., DIVISIONAL OFFICE-6, 15TH CROSS, 8TH MAIN, CHITRAPUR BHAVAN, RAJAJINGAR, BANGALORE-560 010.
2. SRINATH G KURDEKAR, MAJOR, NO.65, 3RD MAIN, 4TH STAGE, IV BLOCK, BASAWESHWARANAGAR, BANGALORE-560 079. ... RESPONDENTS [BY SMT. LAKSHMI S. HOLLA, ADVOCATE FOR SRI. PUTHIGE R. RAMESH, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH VIDE COURT ORDER DATED 09.02.2016] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.03.2011 PASSED IN MVC NO.3690/2010 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT., METROPOLITIAN AREA, BANGALORE, [SCCH.NO.9], 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 Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
2. The injured/claimant has filed this appeal seeking enhancement of compensation awarded by the Tribunal, wherein the Tribunal has awarded a total compensation of Rs.1,65,735/- with interest at 8% p.a. for the injuries sustained by him in a road traffic accident.
3. I have heard the learned counsel appearing on both the side.
4. It is the case of the appellant that on 25.05.2010 at about 12.10 p.m., when he was riding his motorcycle bearing reg. No.KA-04/H-1325 on West of Chord [Service] Road at I Block, Rajajinagar, all of a sudden a car bearing reg. No.KA-02/MB-3581 driven by its driver in a rash and negligent manner dashed against his motorcycle, due to which he fell down and sustained grievous injuries. He was immediately shifted to Cauvery Orthopedic Centre and then to Sarvodaya Hospital, Bengaluru, where he was treated as an in-patient.
A total Compensation of Rs.3,00,000/- was sought before the Tribunal. On behalf of the claimant, two witnesses were examined and Exs.P1 to 13 were got marked. Though the claim was resisted by the Insurance Company, no witnesses were examined and no documents were got marked on its behalf.
The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.1,65,735/- under the following heads:
Particulars Amount in Rs.
1. Pain, injuries and suffering. … 25,000
5. The contention of the learned counsel for the appellant is that the appellant was a mason, earning a sum of Rs.9,000/- p.m. and the Tribunal was not proper in taking the income at Rs.3,000/- p.m. He would submit that the appellant was an in-patient for 5 days i.e., from 25.05.2010 to 29.05.2010 and he has suffered permanent disability to an extent of 29% to the right lower limb and therefore, he submits that the total compensation awarded is inadequate and seeks to enhance the compensation by modifying the Judgment and Award passed by the Tribunal.
On the other hand, the learned counsel appearing for the Insurance Company submits that the compensation awarded by the Tribunal is just and reasonable and the same is based on the evidence and material on record and does not require any enhancement and accordingly, seeks to dismiss the appeal.
6. According to the appellant, he was working as a mason and was earning Rs.9,000/- p.m. Apart from his oral testimony, there is no other convincing evidence adduced so as to prove his income. In the absence of any convincing evidence with regard to the income, I deem it proper to take the income of the appellant at Rs.5,500/- p.m. considering the year of accident and also the avocation of the appellant.
7. The doctor-P.W.2 has assessed the disability suffered by the appellant at 29% to the right lower limb and therefore, the disability taken by the Tribunal at 10% to the whole body is just and proper. The age of the appellant was 50 years at the time of the accident. The proper multiplier is ‘13’ and therefore, the appellant is entitled for a compensation of Rs.85,800/- [Rs.5,500 x 12 x 13 x 10%] towards loss of income due to disability as against Rs.46,800/- awarded by the Tribunal.
8. The appellant has sustained supracondylar fracture of right femur and abrasion over the right knee. He took treatment as an in-patient from 25.05.2010 to 29.05.2010. Ex.P6 is the wound certificate and Ex.P7 is the discharge summary. Considering the injuries sustained and the disability suffered by the appellant, the compensation of Rs.25,000/- awarded under the head pain, injuries and suffering is enhanced to Rs.35,000/-. The compensation of Rs.15,000/- awarded under the head loss of amenities is enhanced to Rs.30,000/-. A sum of Rs.16,500/- is awarded towards loss of earning during laid-off period as against Rs.9,000/- awarded by the Tribunal. The compensation awarded under all other heads are just and reasonable. Therefore, the appellant is entitled for a total compensation of Rs.2,37,235/- as against Rs.1,65,735/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 16.03.2011 passed in MVC No.3690/2010 on the file of the Judge and Member, MACT., Bengaluru is hereby modified.
The appellant is entitled for a total compensation of Rs.2,37,235/- with interest as awarded by the Tribunal.
The appellant is not entitled for interest for the delayed period of 599 days in preferring this appeal. Respondent No.1 shall deposit the entire amount of compensation within a period of four weeks from the date of receipt of copy of this Judgment.
Sd/- JUDGE.
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