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. 123 OF 2014 (MV) BETWEEN:
MR. K.PREM S/O KEMPEGOWDA, AGED ABOUT 21 YEARS, NO.14, 10TH CROSS, 2ND RAILWAY GATE, BHUVANESHWARA NAGAR, BANGALORE – 560 023 (BY SMT:BHUSHANI KUMAR, ADV.) AND:
1. SRI.DINESH KUMAR S/O K.SAMPATH KUMAR, # 30/41, DASAPPA GARDEN, DEVANATHACHAR STREET, 5TH MAIN, CHAMARAJPET, BANGALORE – 560 018 ... APPELLANT 2. IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED # 182, 2ND FLOOR, ASHA BUILDING, WHITE FIELD ROAD, BANGALORE (WEST) – 560 036 REP: BY ITS BRANCH MANAGER ... RESPONDENTS (BY SRI.E.I.SANMATHI, ADV. FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.06.2013 PASSED IN MVC NO.4983/2011 ON THE FILE OF THE XII ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, METROPOLITIAN AREA, BANGALORE, (SCCH.NO.8), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FURTHER 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 18th July 2011, the injured made claim petition before the Motor Accident Claims Tribunal, Bangalore. The Tribunal, by its judgment and award dated 13th June, 2013 passed in MVC No.4983 of 2011 awarded compensation of Rs.1,96,630/- with interest at 6% per annum from the date of claim petition till its realisation. 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 compensation awarded by the Tribunal is very much on the lower side. It is submitted that though in the claim petitioner has claimed that he was earning a sum of Rs.8,000/- per month, the Tribunal has committed an error in assessing the same at Rs.4,000/- per month. It is further submitted that the Tribunal has committed an error in taking the disability percentage at 10% instead of taking it at 15%. In all, the submission is that the Tribunal has awarded a very meagre compensation and hence it is prayed for enhancement.
3. Per contra, the learned counsel appearing for the respondent-Insurer prays for dismissal of the appeal and submits that the Tribunal has awarded just and proper compensation considering the materials placed before it; and hence there is no ground for interference in this appeal.
4. Heard the learned counsel for the parties and gone through the judgment and award. The accident is not in dispute and the injuries sustained by the appellant is not in dispute. The impact of the accident is that the appellant has suffered (a) degloving injury over right foot dorsum measuring 10 x 7 cms exposing underlying tendons and muscles with heel paid avulsion; (b) abrasions of varying dimensions over left knee. PW2-Doctor who has treated the injured has deposed that the injured underwent debridement under SA on 19th July 2011 and debridement with free latissimus dorsi muscle flap with split skin grafting under GA on 23rd July, 2011. The Doctor has opined that there is reduced range of movement in the right ankle; weakness in the right ankle movements; reduced sensation over the right foot and deformity in the right foot. He has stated that there is permanent disability at 45,.3% to the right lower limb. If the treated doctor has opined that the injured has suffered disability at 45.3% to the right lower limb, and if the said disability is taken for the right lower limb, the disability to the whole body comes to 15%. Hence, the disability is taken at 15% as against 10% taken by the Tribunal.
5. The appellant has claimed that he was working as sales-man and was earning Rs.8,000/- per month. In cases where no material documents are produced to support the claimed income, the courts have to take notional income taking into factors like year of accident, place of residence, cost of living prevalent then, etc. In the instant case, the accident is of the year 2011 and it is claimed by the appellant that he was working as sales-man. With relevance to the year of accident, this Court assess the monthly income at Rs.6,500/- per month. The same is taken in this case also. Accordingly, the compensation under the head future loss of income comes to Rs.6,500/- x 12 x 18 x 15% = Rs.2,10,600/- the same is awarded as against Rs.86,400/- awarded by the Tribunal. Taking the income at Rs.6,500/- per month the compensation under the head of loss of income during the laid up period comes to Rss.6,500/- x 3 = Rs.19,500/- and the same is awarded as against Rs.2,700/- awarded by the Tribunal. Considering the period of hospitalisation and also the amount of pain underwent by the appellant, I am inclined to award another Rs.20,000/- under the head pain and agony. In the facts and circumstances of the case and also considering the hardship the appellant has to undergo for the rest of his life, I am inclined to award another Rs.20,000/- towards loss of amenities. The compensation awarded under the other heads remain unaltered. In all the enhanced compensation would be Rs.1,81,000/-. The same shall carry interest at the rate as is awarded by the Tribunal. The apportionment shall be as per the award.
lnn Sd/-
ACTING CHIEF JUSTICE