IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.5212 OF 2014 [MV] BETWEEN Lakshmamma w/o late Muniyappa Aged about 68 years R/a No.299, Angadi Bheedi, 4th Block Vinayakanagar Hesaraghatta Bangalore North Taluk Bengaluru – 560086. ... Appellant [By Sri Shripad V Shastri, Advocate] AND 1. Iffco Tokio General Insurance Co. Ltd.
No.2, 1st Floor, SNR Arcade Ayappa Temple Road Peenya, Bangalore-57 By its Manager.
2. Raghu H N, s/o Naresappa Major, r/a No.34 Lakshminarasimhaswamy Temple Road, Opp:Grama-
-panchayathi, Hesaraghatta Bangalore-88. ... Respondents [By Sri E I Sanjmathi, Advocate for R1, R2 – notice d/w v/c/o dtd.31.1.2019) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 29.4.2014 passed in MVC No.7287/2011 on the file of the XVI Additional Judge, Member, MACT, Court of Small Causes, 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:
JUDGMENT Though this appeal is listed for admission, the same is takenup for final disposal with the consent of both the learned counsel.
2. Claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.7287/2011 dated 29.4.2014 on the file of the XVI Additional Judge, Member, MACT, Court of Small Causes, Bangalore, wherein a total compensation of Rs.1,58,000/- has been awarded for the injuries sustained by her in a road traffic accident.
3. The case of the appellant is that on 27.9.2011 at about 9.15 p.m, when she was crossing the road near Vinayakanagara Bus stop, at that time, a motorcycle bearing Regn. No.KA-04/HE-4461 ridden by its rider in a rash and negligent manner dashed against her. Due to the impact, she fell down and sustained grievous injuries and taken to Tukaram Clinic, Hesaragatta, wherein first aid treatment was given and then she was shifted to Saptagiri Hospital, Bangalore, wherein she was treated as an inpatient.
4. It is the further case of the appellant that she was a milk vendor and she was earning a sum of Rs.6,000/- p.m. and due to the accident, she suffered permanent disability and not able to lead normal life as she was doing prior to the accident and also suffered loss of income. The Tribunal after considering the oral and documentary evidence, awarded a total compensation of Rs.1,58,000/- with interest at 6% p.a. under the following heads:
1. Medical expenses - Rs.32,000/-
2. Loss of future earnings (Rs.4,000 x 12 x 7 x 13%) - Rs.44,000/-
3. Loss of past earnings - Rs.12,000/-
4. Pain and sufferings - Rs.30,000/-
5. Food, nourishment and
Total Rs.1,58,000/-
5. Learned counsel for the appellant contends that the total compensation awarded under various heads are on the lower side, inasmuch as the Tribunal has taken Rs.4,000/- p.m. as income of the appellant as against Rs.6,000/- p.m. Accordingly, he seeks to enhance the total compensation by modifying the judgment and award passed by the Tribunal.
6. Learned counsel for the respondent – Insurance Company, on the otherhand, justified the award passed by the Tribunal contending that the total compensation awarded is just and reasonable. Accordingly, he seeks to dismiss the appeal.
7. The appellant having sustained injuries in the road traffic accident, which occurred on 27.9.2011 involving the motorbike bearing Regn. No.KA-04/HE-4461, which was insured with respondent No.1 is not in dispute.
8. The evidence on record goes to show that the appellant sustained fracture of upper 1/3rd tibia, lacerated wound over right occipital region, abrasion injury over left forearm, tenderness left side of debris and tenderness right and middle 1/3rd femur. She has taken treatment in Tukaram Clinic, Hesaragatta and Saptagiri Hospital, Bangalore.
9. According to the appellant, she was a milk vendor and she was earning Rs.6,000/- p.m. Apart from her oral testimony, there is no other corroborative piece of evidence to prove the income. Considering the fact that the accident is of the year 2011 and considering the avocation of the appellant, I deem it appropriate to take the income at Rs.6,500/- p.m. as against Rs.4,000/- p.m. taken by the Tribunal.
10. PW2 is the doctor, who has assessed the disability suffered by the appellant. According to him, the disability to the left lower limb is 50.4% and to the whole body is 16.8%. The Tribunal has assessed the permanent disability at 40% to the left lower limb and to the whole body at 13%. The appellant was aged about 65 years. The doctor has stated that the fractures are not united and if fractures are united, the disability would be less. Considering the evidence on record and in the facts and circumstances, the disability suffered by the appellant is assessed at 15% to the whole body. The appropriate multiplier is 7 and therefore the appellant is entitled for Rs.81,900/- (6,500 x 12 x 7 x 15/100) towards loss of future income as against Rs.44,000/- awarded by the Tribunal. The compensation of Rs.12,000/- awarded towards loss of past earnings is enhanced to Rs.20,000/-.
11. The Tribunal has not awarded any sum towards future medial expenses. PW2 has stated that future surgery is required and cost of such surgery would be Rs.35,000/-. Considering the evidence on record, a sum of Rs.10,000/- is awarded towards future medical expenses. Compensation awarded under all the other heads are just and reasonable. In all, the appellant is entitled for a total compensation of Rs.2,13,900/- as against Rs.1,58,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER Appeal is allowed in part.
The judgment and award dated 29.4.2014 passed in MVC No.7287/2011 on the file of the XVI Additional Judge, Member, MACT, Court of Small Causes, Bangalore, is hereby modified.
Appellant is entitled for a total compensation of Rs.2,13,900/- with interest at 6% p.a. from the date of petition till realization as against Rs.1,58,000/- awarded by the Tribunal.
Respondent No.1- Insurance Company shall deposit the amount within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE Bkm