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.2112 OF 2013 (MV) BETWEEN:
SHRI.KRISHNE GOWDA @ KITTI S/O SRI.BOMME GOWDA, AGED ABOUT 35 YEARS, R/AT KARADALA NYAMANAHALLI POST, NAGAMANGALA TALUK, MANDYA DISTRICT, NOW RESIDING AT C/O JAVARE GOWDA, NO.152, 2ND CROSS, 4TH MAIN ROAD, ITTAMADU MAIN, B.S.K. 3RD STAGE, BANGALORE – 560 085 ... APPELLANT (BY SRI.T.N.VISHWANATHA, ADV.) AND:
1. M/S.IFFCO TOKIO GENERAL INSURANCE CO. LTD., IFFCO BHAVAN, 4TH FLOOR, NEAR HOTEL CHANDRIKA, CUNNINGHAM ROAD, BANGALORE – 560 001 2. SRI.B.HUSSAIN SAB S/O SRI.GUDE SAB M., MAJOR, R/AT SHANAVASAPURA POST, SIRAGUPPA TALUK – 583 121 BELLARY DISTRICT. ... RESPONDENTS (BY SRI.H N KESHAVA PRASHANTH, ADV. FOR R1; NOTICE TO R2 IS DISPENSED WITH ) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.11.2011 PASSED IN MVC NO.7330/2009 ON THE FILE OF THE 11TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BANGALORE, 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:
J U D G M E N T For the injuries suffered in the road traffic accident, that took place on 11th June, 2009, the injured made claim petition before the Motor Accident Claims Tribunal, Bangalore. The Tribunal, by its judgment and award dated 17th November 2011 passed in MVC No.7330 of 2009 awarded compensation of Rs.1,63,400/- with 6% interest per annum. Being not satisfied with the compensation amount, this appeal is preferred seeking enhancement in the compensation.
2. The learned counsel for the appellant submits that the Tribunal has not awarded any amount towards medical expenses. He further submits that the Tribunal has erred in not taking the disability at 31.66% while awarding compensation under the head future loss of earning capacity. He further submits that the Tribunal has erred in taking the income only at Rs.4,000/- wherein the injured has produced document to show that he was earning Rs.8,000/- per month. In all, the learned counsel for the appellant submits that the compensation awarded by the Tribunal is on the lower side and hence seeks enhancement.
3. The learned counsel for the respondent-insurer supports the judgment and submits that the compensation awarded by the Tribunal is just and proper and there is no ground for interference in this appeal. Hence, he prays to dismiss the appeal.
4. Heard the learned counsel for the parties and gone through the judgment and award of the Tribunal. The accident is not in dispute and the injuries suffered by the appellant is also not in dispute. As per Exhibit P5-wound certificate, the appellant has suffered Right eye contusion; 2X LCW 1 x 1½ inch over right side of the forehead; left fronto parietal EDH with tempero contusion. Immediately after the accident the injured was shifted to Government Hospital, Nagamangala and after getting first aid their he was shifted to BB Hospital Adichunchanigiri and later he was shifted to NIMHANS where he was an inpatient for four days from 12 to 15th June, 2009. Again he was shifted to KIMS at V.S. Dental hospital for better treatment wherein he was inpatient from 15th June to 30th June, 2009. The injured had also taken follow-up treatment at Abhaya Hospital. Though the injured claimed that he was doing agriculture and milk vending business and was earning Rs.8,000/- per month. In support of the said claim he has produced Exhibit P9 Nandini Passbook for the month of March, 2009 for having supplied the milk. Exhibit P10 is the RTC and Exhibit P13 is the genealogical tree. Except that he has not produced any other document; and in the absence of any material evidence, the Tribunal has taken the income at Rs.4,000/- per month which cannot be said to be on the lower side. Though the appellant claimed that he has spent Rs.40,000/- towards medical expenses but has produced the bills in an extent of Rs.29,654/- as per Exhibit P8. Hence, the Tribunal was right in awarding Rs.29,600/-. Be that as it may, PW2 Doctor has diagnosed the injured post HI sequelae and in neuropsychological assessment done on 26th July 2010 it is revealed that (1) impaired motor sped left hand (<5th percentile); (2) impaired mental speed (9th – 13th percentile);
(3) impaired response inhibition; (4) impaired working memory (5th percentile) and has assessed the disability at 20% towards neuro-behavioural disability; cognitive disability as guidelines of NIMHANS at 15% and accordingly the total physical impairment in neurological conditions is 31.66%. Considering the neurological disability and also considering the age of the appellant, and in the facts and circumstances of the case, in my considered opinion, awarding further global compensation of Rs.1,00,000/- would meet the ends of justice. Accordingly it is awarded. It is made clear that the enhanced amount does not carry any interest. Appeal is accordingly allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn