IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO.10946/2011 (MVC) BETWEEN;
KEMPEGOWDA @ IYYANNA S/O NINGEGOWDA AGED ABOUT 40 YEARS GULLENAHALLI MATTANAVILE POST CHANNARAYAPATTANA TALUK HASSAN DISTRICT-573116.
(BY SRI. NANJUNDASWAMY N., ADV.,) AND:
1. THE ORIENTAL INSURANCE CO. LTD., DO-10, DWARAKA, 2ND FLOOR NO.79, OLD NO.36, UTTAMARA GANDHI SALAI CHENNAI, TAMIL NADU-600 034 REPRESENTED BY THE ORIENTAL INSURANCE CO. LTD., DO-12, RAJKUMAR ROAD RAJAJINAGARA, BENGALURU-560010.
2. LOKESH S/O THIMMEGOWDA DODDAMANDIGANAHALLI HASSAN TALUK & DISTRICT-573201.
... APPELLANT (BY SRI. H.S. LINGARAJ, ADV., FOR R1 NOTICE TO R2 DISPENSED WITH) ... RESPONDENTS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 10.09.2009 PASSED IN MVC NO.6182/2007 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the claimant seeking enhancement of the compensation awarded by the Tribunal.
2. With the consent of the learned counsel appearing for the parties, this appeal is heard and disposed of finally. Perused the judgment and award passed by the Tribunal including the records.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 20.01.2007 due to rash and negligent driving of the offending lorry bearing registration No.KA-13-3643 by its driver and liability of the insurer of said offending vehicle, the only point that arises for consideration in the appeal is:
“Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
4. As per Ex.P6-wound certificate, claimant had sustained the following injuries:-
a) Tenderness on right leg elbow joint b) Tenderness on right hand c) Tenderness wound over the knee of left leg d) Two inch sutured wound over the right leg foot e) Compound fracture of Tibia and fibula f) Fracture of calcanium bone of right leg.
The injuries sustained and treatment underwent by the claimant are also evident from discharge summary-Ex.P7, OPD card-Ex.P8, X-rays-Exs.P14, P22, P24 and corroborated by oral evidence of the claimant and doctor, who were examined as PWs-1 and 4 respectively. PW-4, doctor in his evidence has stated that the claimant has suffered disability of 55% to the lower limb and 18% to the whole body.
5. Considering the nature of injuries, sustained by the claimant Rs.40,000/- awarded by the Tribunal towards ‘pain and suffering’ is just and proper and there is no scope for enhancement under this head.
6. As Rs.44,570/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the claimant, it is just and proper and there is no scope for enhancement under this head.
7. The claimant was treated as inpatient for a period of 17 days at Chamarajendra Hospital and Hemavathi Hospital, Hassan. Considering the duration of treatment, Rs.10,000/- awarded by the Tribunal towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges is just and proper and there is no scope for enhancement under this head.
8. The claimant claims to have been earning a sum of Rs.10,000/- per month by doing agriculture and milk vending business and he has produced 5 milk dairy cards at Ex.P11, Pahani-Exs.P13 and P19. Considering the same, his income is assessed at Rs.4,000/- per month. The nature of injuries suggest that the claimant must have been under rest and treatment for a period of 4 months and therefore a sum of Rs.16,000/- is awarded towards ‘loss of income during laid up period’.
9. Considering the nature of injuries, disability assessed by the Tribunal at 15% to the whole body as against 18% stated by the doctor is just and proper. Considering the disability and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.40,000/- is awarded towards ‘loss of amenities’ (Rs.20,000/- towards loss of amenities and Rs.20,000/- towards loss of expectation of life).
10. The claimant was aged about 40 years at the time of accident. The multiplier of ‘15’ applied by the Tribunal is just and proper. Considering the income of the claimant at Rs.4,000/- per month and disability at 15%, the ‘loss of future income’ works out to Rs.1,08,000/- (4000 x 12 x 15 x 15/100) and it is awarded as against Rs.81,000/- awarded by the Tribunal.
11. Considering the nature of injuries, a sum of Rs.20,000/- is awarded towards ‘future medical expenses’.
12. Thus, compensation awarded by the Tribunal is reassessed as under:-
Heads Amount 1 Pain and sufferings 40,000 2 Medical Expenses 44,570 3 Incidental expenses 10,000 4 Loss of income during laid up period 16,000 5 Loss of amenities 40,000 6 Loss of future income 1,08,000 7 Future medical expenses 20,000 TOTAL 2,78,570 LESS: Compensation awarded by the Tribunal 2,35,570 BALANCE 43,000 13. Accordingly, the appeal is allowed in part.
The judgment and award dated 10.09.2009 passed in MVC No.6182/2007 by the 14th Additional Judge, Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, stands modified. The claimant is entitled for an additional compensation of Rs.43,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation excluding interest for the delayed period of 676 days.
14. The Insurance Company is directed to deposit the additional compensation amount together with interest excluding interest for the delayed period of 676 days within two months from the date of receipt of a copy of this judgment. On deposit, the same shall be released in favour of the claimant.
No order as to costs.
SD/- JUDGE PMR