IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY 2019 PRESENT THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR MISCELLANEOUS FIRST APPEAL NO.4915 OF 2014 (MV) BETWEEN:
KUMAR @ SWAMY @ SOMASHEKARA K S/O CHITTAIAH, NOW AGED ABOUT 35 YEARS, R/AT CHITRAIAHNAHATTY, CHALLKERE TOWN – 577 501 SINCE THE APPELLANT IS UNSOUND MIND REP. BY NEXT FRIEND, HIS MOTHER SMT.K.C. THIPPAMMA W/O K. CHITTAIAH, NOW AGED ABOUT 56 YEARS, HOUSE WIFE, R/AT CHITRAIAHNAHATTY, CHALLAKERE TOWN (BY SRI. RANGE GOWDA N R, ADV.) AND:
1. SHASHAVALI S/O MAQBOOL SAB, AGED ABOUT 41 YEARS, R/AT GOPALPURA ROAD, ... APPELLANT MARUTHI NAGAR, CHITRADURGA TOWN 577501 2. THE BRANCH MANAGER BAJAJ ALLIANZ GIC LTD KNV COMPLEX, 4TH CROSS, VIDYANAGAR, B.H ROAD, TUMKUR 3. N.S. VEERESH S/O N.I SHIVAKUMAR, NOW AGED ABOUT 42 YEARS, R/O DODDAPETE, MOLAKALMURU TOWN 4. THE BRANCH MANAGER NATIONAL INSURANCE CO. LTD., BMB COMPLEX, LAXMI BAZAR, CHITRADURGA – 577 501 (BY SRI.P.B.RAJU, ADV. FOR R2; SRI.R SURESH, ADV. FOR R3;
SRI.R.RAJAGOPALAN, ADV. FOR R4 NOTICE TO R1 DISPENSED WITH) ... RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.04.2014 PASSED IN MVC NO.237/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDITIONAL MACT AT CHALLAKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
J U D G M E N T Claimant suffered accidental injuries on 06th March, 2008 and in that regard the claim petition has been filed on the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Challakere under Section 166 of the Motor Vehicles Act. The case of the claimant is that when he was travelling as a pillion rider on motorcycle bearing registration No.TPL 4010/07-08, the said motorcycle and the offending vehicle autorickshaw bearing registration No.KA-16-A-4322 dashed each other in which the claimant suffered injuries. It is claimed that he was a mechanic and was earning about Rs.6,000/- per month. The Tribunal, having considered the case of the parties has awarded compensation of Rs.3,45,580/-. Against the same this appeal is filed seeking enhancement in the compensation.
2. The learned counsel appearing for the appellant- claimant submits that disability should have been taken at 100%, as against, the Tribunal has taken it at 20% which is lower in side. In order to resolve the disability, we have referred the claimant to Victoria Hospital, Bangalore. In response to the same, the Chairman of Victoria Hospital vide his letter dated 12th December 2018 intimated that the claimant has 55.3% functional disability and while arriving at the said percentage he has given the break-up as per Barthel index under each head.
3. The learned counsel for the respondent supports the award and he submits the compensation awarded is sound and proper and no ground is made for enhancement and the appeal be dismissed.
4. Heard the learned counsel for the parties and gone through the documents and evidence placed before us. We gave serious thought to the disability certificate. As per the report the functional disability is 55.3% which is the disability assessed to whole body disability. The same is required to be considered for the purpose of awarding compensation. The other ground urged is with regard to the income taken by the Tribunal. The claim of the injured is that he was a mechanic and was earning about Rs.6,000/- per month, but, as against the same, the Tribunal has assessed the income at Rs.3,000/- per month. The same is on the lower side. When a person himself claims that his earning is about Rs.6,000/- per month and that too when the accident is of the year 2008 and considering the cost of living prevalent then, in our considered opinion, the same is not on the higher side. When an occupation in the nature of the present case is claimed, normally the Court shall not insist upon the documents and evidence instead should take a pragmatic view. Having taken the same, we assess the income of the injured at Rs.6,000/- for the purpose of calculation under the head loss of future earnings. Accordingly, the calculation would be Rs.6,000/- x 12 x 55% x 17 = Rs.6,73,200/- the same is awarded as against Rs.1,26,600/- awarded by the Tribunal. Considering the mental agony the injured had to undergo for his lifetime, Rs.15,000/- is awarded under the head pain and suffering in addition to what has been awarded by the Tribunal. Taking the income at Rs.6,000/- per month Rs.54,000/- is awarded under the head loss of earning during the treatment period minus Rs.6,250/- awarded by the Tribunal. Considering the age of the injured and also the fact that most of the times he require an attendant for assistance, an amount of Rs.25,000/- is awarded towards loss of amenities. The amount awarded by the Tribunal under other heads are retained. Enhanced amount carries interest at the rate of 6% per annum. Apportionment of the enhanced amount shall be as per the award of the Tribunal.
Appeal is allowed in part.
Sd/- JUDGE Sd/- JUDGE lnn