IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.2010 OF 2013 [MV] BETWEEN SMT. KRISHNAMMA, W/O. KRISHNAPPA, AGED 39 YEARS, R/AT DOMBHARPALYA, PERESANDRA POST, CHIKKABALLAPURA TALUK AND DISTRICT-562 101. ... APPELLANT (BY SRI.CHANDRASHEKARA C. FOR SRI. MALLA REDDY B.V., ADVOCATES) AND 1. THE PRINCIPAL, CAMBRIDGE INSTITUTE OF TECHNOLOGY, BASAVANAPURA MAIN ROAD, KRISHNARAJAPURAM DISTRICT, BANGALORE-36.
2. THE NEW INDIA ASSURANCE CO. LTD, HUDSON CIRCLE CCDU. VII (671500), VOKKALIGARA SANGHA COMPLEX, 5TH FLOOR, HUDSON CIRCLE, BANGALORE-27. ... RESPONDENTS (BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2;
R1-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 03.06.2014) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.11.2012 PASSED IN MVC NO.2137/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMEPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE 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.
The injured-claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.2137/2012 on the file of the XII Addl. Small Causes Judge and Member MACT, Bengaluru, wherein a total compensation of Rs.1,70,000/- has been awarded for the injuries sustained by her in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for respondent No.2-Insurance Company.
3. It is the case of the appellant that on 03.02.2012 at about 7.30 a.m., she was proceeding on Service Road, near Kasturi Nagar in order to reach Kasturi Nagar Bus stop, at that time, one bus bearing registration No.KA-53-6596 came from NGEF Layout to Veejanapura and the driver of the said bus drove the same in a rash and negligent manner and dashed against her, due to which, she fell down and sustained injuries and immediately shifted to Koshys Hospital, Ramamurthy Nagar and later referred to Nimhans and treated as an inpatient and she was also treated as an inpatient at Sri Sai Viharika Nursing Home at Muthyalpet.
4. It is the further case of the appellant that she was doing agricultural work and also doing milk vending business and earning a sum of Rs.9,000/- per month and due to the accidental injuries, she has suffered deformity and she is permanently disabled and not in a position to work and earn like before.
5. Before the Tribunal, on behalf of the claimants, four witnesses were examined. The claimant was examined as PW1. PW2 and PW4 are the Medical Officers, PW3 is the Manager – Medical records of NIMHANS. Exs.P1 to P20 were marked. Though the claim was resisted by the respondent No.2-Insurance Company, no witnesses were examined and no documents were marked.
6. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.1,70,000/- with interest at 6% per annum, under the following heads:
Pain and suffering Rs.25,000-00 Medical, conveyance and Nourishment expenses Rs.45,000-00 Loss of earnings during The period of treatment Rs.10,000-00 Disability Rs.60,000-00 Future Medical expenses Rs.10,000-00 Loss of amenities and Enjoyment of life Rs.20,000-00 Total Rs.1,70,000-00 7. It is the contention of the learned counsel for the appellant that the appellant has sustained head injuries and PW2 has assessed cognitive disability at 18%. However, the Tribunal has not taken into consideration the permanent disability suffered by the appellant. On the other hand, a meager sum of Rs.60,000/- is awarded under the head ‘disability’. He submits that in view of the nature of grievous injuries and cognitive disability suffered by the appellant, the compensation awarded towards disability is not just and proper and seeks to enhance the same. He further submits that the appellant was earning a sum of Rs.9,000/- per month by doing milk vending and agricultural work. However, the Tribunal has taken the notional income of the appellant at Rs.5,000/- per month while calculating the loss of income during the treatment period, which is also on the lower side. He would submit that the total compensation awarded under different heads are meager and seeks to enhance the compensation awarded by the Tribunal.
8. Per contra, the learned counsel appearing for Respondent No.2- Insurance Company justifies the compensation awarded by the Tribunal, contending that the same is just and reasonable. Accordingly, he seeks to dismiss the appeal.
9. The accident in question involving the bus bearing registration No.KA-53-6596 insured with the 2nd respondent herein and the appellant sustaining injuries in the said accident is not in dispute.
10. According to the appellant, she was earning a sum of Rs.9,000/- per month by doing agricultural work and by vending milk. The Tribunal has taken the notional income of the appellant at Rs.5,000/- per month. Considering the year of accident and also the avocation of the appellant and also considering the facts and circumstances of the case, the notional income of the appellant is taken at Rs.7,000/- per month. Ex.P7 is the wound certificate issued by Koshys Hospital, which reveals that the appellant sustained grievous as well as simple injuries. PW2 is the doctor working at NIMHANS. He has deposed that the appellant was referred for neuropsychological assessment as she got head injury and for which she underwent operation. Complete neuropsychological assessment could not be carried out as the patient had fatigable attention. To the extent tested neuropsychological assessment showed adequate functioning in the attention, set shifting and planning, impairment was seen in visuo spatial working memory and verbal learning and memory indicating frontal and temporal lobe involvement. He has deposed that the patient got cognitive disability at 18% and the patient has personality change in the form of the irritability. The cognitive disability was thus assessed at 18%.
11. PW4 is a doctor at Sai Viharika Nursing Home. He has treated the appellant and deposed that the appellant sustained the following injuries as per wound certificate:
(i) Head injury.
(ii) Multiple abrasions over right elbow and other parts of the body.
(iii) Laceration over right temporal region with clinically depressed fracture of temporal bone.
(iv) Temporal pormtel EDH multiple committed fracture etc., Considering the aforesaid evidence on record and the fact that the appellant has sustained head injuries and considering the evidence of PW2 that she has got cognitive disability to an extent of 18%, the compensation of Rs.60,000/- awarded by the Tribunal towards disability is on the lower side. Though it is not clearly made out as to what is the total disability to the whole body, as PW2 has stated in her evidence that the complete neuropsychological assessment could not be carried out and there is no definite evidence with regard to the disability to the whole body, I deem it appropriate to take the disability to an extent of 15% to the whole body since the appellant has suffered cognitive disability. The appellant was aged about 39 years at the time of the accident, the appropriate multiplier applicable to his age is 15. Since the notional income of the appellant has been assessed at Rs.7,000/- per month and disability at 15% to the whole body, the compensation for which the appellant is entitled under the head ‘loss of income due to disability’ is Rs.1,89,000/- (Rs.7,000x12x15x15/100).
12. The Tribunal has awarded a sum of Rs.25,000/- towards ‘pain and suffering’, the same is enhanced to Rs.40,000/-. A sum of Rs.20,000/- is awarded under the head ‘loss of amenities and enjoyment in life’ is enhanced to Rs.40,000/-. The compensation of Rs.10,000/- awarded under the head ‘loss of income during the treatment period’ is enhanced to Rs.14,000/-. The compensation awarded under the head ‘medical, conveyance and nourishment expenses and future medical expenses are just and reasonable and the same is unaltered. In all, the appellant is entitled for a total compensation of Rs.3,38,000/- as against Rs.1,70,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 27.11.2012 passed by the XXII Addl. Small Causes Judge and Member, MACT, Bangalore in MVC No.2137/2012 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.3,38,000/- as against Rs.1,70,000/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of the receipt of a copy of this judgment.
Sd/- JUDGE snc