IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.1586 OF 2011 (MV) BETWEEN:
K.E.Ganapathi, Aged 42 years, S/o Seerappa C/o B.S.Chandrashekar Kirangur Village, K.Shettihalli Hobli, Srirangapatna Taluk, Mandya District – 571 438. .. Appellant (By Sri T.K.Nagesh Kumar, Advocate ) AND:
1. Sundar Rai S/o Jalappa Rai, R/o Varambalaji House, Kadasavalya, Bantwala Dist, Kanara South – 574 219, Mangaluru.
2. The New India Insurance Co. Ltd., 2nd Floor, Rambhavan Complex, Kodiyala by Post Mangaluru – 575 003.
3. H.N.Lavakumar, S/o Mayamma, Mangaladevi, R/o Nagar, Madikere, Dist: Kodagu – 571 216.
4. The New India Insurance Co. Ltd., Coffee Krupa Bldg.
Mahatma Gandhi Road, Madikeri – 571 216. .. Respondents ( By Sri K.N.Srinivas, Advocate for R-2, Sri M.Narayanappa, Advocate for R-4, Appeal dismissed against R-1 Vide order dated 10.10.2013, and Respondent No.3 – served) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:11.3.2010, passed in MVC No.1434/2006, on the file of Principal Civil Judge (Sr.Dn.), MACT, Srirangapatna, 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 is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Prl.Civil Judge (Sr.Dn.) & MACT, Srirangapatna, (hereinafter referred to as ‘the Tribunal’, for short), by judgment and award dated 11.03.2010, passed in MVC No.1434/2006.
2. The summary of the case of the claimant in the Tribunal is that on 22.5.2006, at about 6.00 p.m., while he was proceeding as a passenger in a Omni car bearing registration No.KA-06-M-2072, from Madikeri to Mangaluru, while the car came near Kanakammana Jala Village at Anagundi, a bus bearing registration No.KA-19-AC-7899, came in high speed in a rash and negligent manner from opposite side and dashed against the car in which he was travelling. As a result of the said accident, he sustained grievous injuries, including fractured injuries to different parts of his body. He took medical treatment as an inpatient in the hospital for two months and has incurred huge expenses in that regard. Due to the injuries sustained by him, he has suffered permanent partial disability and could not pursue his avocation. With this, he has prayed for compensation of a sum of `12.00 lakhs payable by the respondents in the capacity of owner and insurer of the vehicle.
3. Before the Tribunal, the claimant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-52 and one Dr.Sikandar Pasha was examined through the Court Commissioner and got marked documents at Exs.C-1 to C-11.
4. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
Amount (`) Loss of future earning capacity 1,41,120-00 Pain and sufferings 30,000-00 Medical expenses 13,200-00 Food, diet, attendant, transportation charges etc., 5,000-00 Loss of amenities and future happiness 15,000-00 Loss of earnings during hospitalisation and treatment 5,000-00 Total 2,09,320-00 5. The Tribunal awarded compensation of a sum of `2,09,320/- with interest at 6% per annum thereupon, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to deposit the award amount. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
6. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. Learned counsel for the appellant/claimant in his arguments submitted that the evidence of PW-1 and the doctor clearly shows that the claimant has suffered 38% to 40% of disability to the whole body. The doctor has also given a detail account of the restricted movement of several of the joints of the claimant and also feeling of pain by the claimant while taking such movements. The Tribunal has not considered the said evidence in its proper perspective which resulted in confining of percentage of disability only at 28%, which according to him, requires to be reconsidered.
He also submitted that the income of the claimant was also not taken into consideration properly. Further submitting that the compensation towards future medical expenses also has not been given and the compensation awarded under various other heads are also on lower side, learned counsel prays for allowing the appeal.
9. Learned counsel for the respondent-Insurance Company in his arguments submitted that the alleged disability to the particular limb is only 55%, as such, when applied to the whole body, it would not cross 18%. However, the Tribunal has taken it on the higher side at 28%. He submitted that in the absence of any proof of income, the Tribunal has rightly considered the income of the injured at `3,000/- per month. He further submitted that the compensation awarded under various heads being reasonable and does not warrant any interference at the hands of this Court.
10. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
11. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
12. The claimant though claims himself to be an autorickshaw driver and also owner of a small plantation at the time of alleged accident, admittedly has not produced any document to show that he was earning his livelihood from those two sources. Considering the same, the Tribunal has taken a notional income at `3,000/- per month as the income of the claimant. However, considering the year of accident, which is 2006, and also of the fact that co-ordinate Benches of this Court takes the notional income for the said year at `3,750/- per month, I am of the view that income of the claimant is required to be taken at `3,750/- per month.
The percentage of disability assessed by the Tribunal is found that the same was after analysing the entire evidence placed before it. No doubt, the doctor who was examined has spoken about some portion of restriction of movement in the left leg and right shoulder, but, doctor has not explained as to whether the alleged restricted movement has in any way obstructed in pursuing the avocation by the claimant. In such scenario, when the doctor himself has stated that the percentage of disability when compared to the whole body is 38% to 40%, the Tribunal has rightly considered the percentage of disability as applied to the whole body at 28% only. Admittedly, the multiplier applicable to the age of the claimant who claims to be 42 years as on the date of accident is `14’. Thus, towards loss of future earning capacity, the claimant is entitled for a compensation of a sum of `3,750/- x 12 x 14 x 28/100 = `1,76,400/-. After deducting the awarded amount of `1,41,120/-, the claimant is entitled for difference amount of a sum of `35,280/-.
13. Towards `pain and agony’, the Tribunal has awarded compensation of a sum of `30,000/-. After noticing the fact that the claimant had sustained fracture of femur bone, fracture of both left and right clavicle bone and also fracture of scapula bone, I am of the view that compensation of `30,000/- deserves enhancement by a sum of `10,000/-.
14. Since the compensation towards medical expenses has been awarded based on actuals and after considering the medical bills and prescriptions produced by the claimant as exhibits from Exs.P-6 to P-52, I do not find the same deserves any modification.
15. Towards `food, diet, attendant and transportation charges etc.,’ the Tribunal has awarded a compensation of a sum of `5,000/-. The very same Tribunal has also observed that the injured was inpatient in the hospital for about fifty days. In the said background, I am of the view that towards `food, diet, attendant and transportation charges’, the compensation awarded by the Tribunal since being not reasonable, the same deserves an enhancement by a sum of `10,000/-.
16. The compensation awarded towards `loss of amenities’ and `future happiness’ being reasonable, I do not want to interfere in it.
17. Since the notional income of the claimant has been taken at `3,750/- per month, he is entitled for difference amount for loss of earning during hospitalisation and treatment, which comes to `1,200/-. As such, to the said enhanced amount, the claimant is entitled for.
18. The doctor in his evidence has stated that to remove the screws implanted in the fractured portion of the limb of the claimant, one more surgery is required to be conducted. As rightly contended by the learned counsel for the claimant, the Tribunal has not considered the said aspect of necessity to undergo one more surgery. As such, towards `future medical expenses’, in the circumstances of the case, I am of the view that a sum of `15,000/- as compensation would be reasonable compensation to which the claimant is entitled to.
19. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for enhancement of compensation in a sum of `71,480/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 11.03.2010, passed by the learned Prl.Civil Judge (Sr.Dn.), & MACT, Srirangapatna, in MVC.No.1434/2006, is modified to the extent that the compensation awarded at `2,09,320/- is enhanced by a sum of `71,480/-, thus fixing the total compensation at `2,80,800/- (Rupees Two lakhs eighty thousand eight hundred only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
The learned counsel for respondent No.2 is permitted to file vakalath in the Registry within two weeks from today.
Sd/- JUDGE bk/