IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY 2017 BEFORE THE HON’BLE MR. JUSTICE B MANOHAR MFA.No.8169 OF 2012 (MV) C/W MFA CROB.NO.25/2014 BETWEEN:
MR K MANJANNA S/O MR KARIYAPPA AGED ABOUT 24 YEARS ARGICULTURIST & MILL WORKER KANDENAHALLY GOLLARHATTY NOW RESIDING AT GOLLANAKATTE VILLAGE J.N.KOTE POST CHITRADURGA TALUK ... APPELLANT (BY SRI K SHASHIKANTH PRASAD, ADV.,) AND:
1. MR M BASAVARAJA PADAKOTI S/O MR. MALLANNA OWNER OF SCARPIO NO.KA-03, MG-6843 NO.425, ANAND NAGAR MARTHAHALLI, VARTHUR MAIN ROAD, BANGALORE-560 037 2. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., REPRESENTED BY THE MANAGER GROUND FLOOR, NO.31, TBR TOWER FIRST CROSS, NEW MISSION ROAD BANGALORE ... RESPONDENTS (BY SRI H.S.LINGARAJ, ADV., FOR R2;
R1 NOTICE DISPENSED WITH V.O.DT.7.02.2014) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.1.2012 PASSED IN MVC NO.657/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE & MACT-5, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA CROB. NO.25/2014 BETWEEN BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED NO.31, GROUND FLOOR, T.B.R. TOWERS I CROSS, NEW MISSION ROAD BANGALORE – 560 002 HEREIN REPRESENTED BY ITS MANAGER (LEGAL) …CROSS-OBJECTOR (BY SRI LINGARAJ H.S., ADV.,) AND 1. K MANJANNA NOW AGED ABOUT 26 YEARS S/O KARIYAPPA ARGICULTURIST & MILL WORKER R/AT KANDENAHALLY GOLLAHATTI NOW RESIDING AT GOLLANAKATTE VILLAGE J.N.KOTE POST CHITRADURGA TALUK & DISTRICT 2. M BASAVARAJU PADAKOTI MAJOR S/O MALLANNA R/AT NO.425, ANANDANAGAR MARATHAHALLI, VARTHUR MAIN ROAD, BANGALORE-560 037 …RESPONDENTS (BY SRI K SHASHIKANTH PRASAD, ADV., FOR R1;
R2 NOTICE DISPENSED WITH V.O.DT.23.02.2017) THIS MFA CROB. IN MFA NO.8169/2012 FILED U/O 41 RULE 22 OF CPC, R/W SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.01.2012 PASSED IN MVC NO.657/2009 ON THE FIEL OF THE I ADDITIONAL SENIOR CIVIL JUDGE, MACT-V, CHITRADURGA, AWARDING COMPENSATION OF RS.1,24,800/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOST, THESE MFA AND MFA CROB. ARE COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Claimant as well as Bajaj Allianz General Insurance Company Limited, have filed the appeal and cross-objection respectively, challenging the quantum of compensation awarded in the judgment and award dated 18.01.2012, made in MVC.No.657/2009 passed by the 1st Additional Senior Civil Judge & MACT-V, Chitradurga, (hereinafter referred to as ‘the Tribunal’ for short). Hence, both the matters are clubbed together and disposed off by this common judgment.
2. The parties are referred to as, they are referred to in the tribunal.
3. The claimant filed the claim petition contending that on 29.12.2008, after completion of pooja, he was returning to his native on SH-19 by walk. When he was proceeding between Gopanahalli gate and Vijayapura gate, a driver of Scorpio car bearing registration No.KA-03/MG-6843, drove the same in a rash and negligent manner with a high speed without observing traffic rules and regulations and dashed against the claimant. Due to which, he fell on the road and sustained grievous injuries all over the body. Immediately, he was shifted to Government hospital, Chitradurga, from there he was referred to District hospital, Chitradurga and for further treatment, he was taken to Bapuji hospital, Davanagere, wherein he has undergone operation. In view of the injuries he has sustained, he became permanently disabled to do the work. Hence, he sought for compensation.
4. The insurance company defended the case by filing written statement.
5. After trial, the tribunal held that due to the actionable negligence on the part of the driver of the scorpio car, accident occurred and the claimant sustained injuries. Hence, he is entitled for compensation.
6. With regard to the quantum of compensation is concerned, though the claimant claims that he was earning a sum of Rs.6,000/- per month, no document has been produced to substantiate the same. The Doctor who treated the claimant has assessed the disability to an extent of 33% to whole body. The tribunal taking into consideration the notional income of the claimant at Rs.3,750/- p.m., taking disability at 8% to the whole body, as he was aged about 21 years applied multiplier of ‘18’ and awarded a sum of Rs.64,800/- towards loss of future income. A sum of Rs.35,000/- towards pain and suffering, Rs.15,000/- towards medical expenditure, a sum of Rs.10,000/- towards loss amenities. In all, it awarded a sum of Rs.1,24,800/- with interest at 6% per annum from the date of petition till deposit. Since the insurance policy was in force as on the date of the accident, the liability was fastened on the insurance company to compensate the claimant. Being aggrieved by the quantum of compensation awarded by the tribunal, both insurance company and the claimant have preferred cross-objection and appeal respectively.
7. Sri K. Shashinkanth Prasad, learned counsel appearing for the claimant submits that the quantum of compensation awarded by the tribunal is on the lower side. Though, the accident occurred in the year 2008, the tribunal assessed the income of the claimant at Rs.3,750./- per month only, which is on the lower side. Further, though the Doctor assessed the disability at 36% in view of two fractures, the tribunal has taken the disability at 8% only. The tribunal ought to have taken 12% disability to the whole body. No compensation is awarded towards loss of income during the laid up period and incidental expenses. Hence, he prays for enhancement of compensation.
8. On the other hand, Sri H.S.Lingaraj, learned counsel appearing for insurance company contended that the quantum of compensation awarded towards loss of future income is on the higher side and further the tribunal has awarded just and fair compensation. Hence, he sought for modification of the judgment and award.
9. After hearing the learned counsel appearing for the parties and on perusal of the oral and documentary evidence, the only issue that arises for my consideration is with regard to the quantum of compensation.
10. The occurrence of accident and injuries sustained by the claimant and fracture of fibula and ulna is not in dispute. Though, the accident occurred in the year 2008, the income of Rs.3,750/- per month taken by the tribunal is on the lower side. Even the daily wage workers working in various Government Departments, the income being taken as Rs.4,500/- per month. Further, the claimant has sustained fracture of ulna and fibula. He has undergone surgery and internal fixation has also been done. The Doctor who is the expert in the field has assessed the disability to an extent of 21% to the right upper limb and 15% to right lower limb. However, while awarding the compensation, the tribunal for the purpose of computation of loss of future income, has taken disability at 8% only. The compensation awarded towards loss of amenities is on the lower side and further no compensation was awarded towards loss of income during the laid up period and incidental expenditure. Hence, it is just and proper to assess income of the claimant at Rs.4,500/- per month. Taking into consideration income at Rs.4,500/- per month, disability at 12% to the whole body and applying multiplier of 18, as he was aged about 21 years at the time of accident, the claimant is entitled for compensation of Rs.1,16,640/- towards ‘future loss of income’ as against a sum of Rs.64,800/- awarded by the tribunal. The claimant is entitled for compensation of Rs.9,000/- towards ‘loss of income during the laid up period’ and a sum of Rs.10,000/- is awarded towards ‘incidental expenditure’. The claimant has to lead his remaining life with the disability sustained in the accident. Hence, a sum of Rs.10,000/- awarded by the tribunal towards loss of amenities of life is on the lower side. Therefore, another sum of Rs.10,000/- is awarded under the above head. Hence, in all the claimant is entitled for enhanced compensation of Rs.70,840/- with interest at 6% per annum in addition to a sum of Rs.1,24,800/- awarded by the tribunal.
11. Accordingly, I pass the following:
ORDER The appeal is allowed in part and the judgment and award dated: 18.01.2012 made in MVC No.657/2009 passed by the 1st Additional Senior Civil Judge and MACT-V, Chitradurga, is modified and the claimant is entitled for enhanced compensation of Rs.70,840/- with interest at 6% per annum.
In view of allowing the appeal filed by the claimant, the cross-objection filed by the insurance company is dismissed accordingly.
Sd/- JUDGE HJ