IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.4607 OF 2016 [MV] BETWEEN MRS. LUDRIN LOBO, AGED ABOUT 54 YEARS, W/O. REMAN MATHIASLOBO, R/O. T-12/1 KHIRKI-EXTEN, MALAVIYA NAGAR, NEW DELHI-110 017.
... APPELLANT (BY SRI.K. PRASANNA SHETTY, ADVOCATE) AND 1. MR. MARIO PEREIRA, MAJOR, S/O. P. PEREIRA, PAULO TRAVELS, 2/1 RACE CROSS ROAD, OPP. JANATHADALA OFFICE, MADHAVA NAGAR, BANGALORE.
2. THE NEW INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE; MADGAON, REP. BY DIVISIONAL OFFICE; UDUPI, SRI. RAM ARCADE, UDUPI.
3. MR. SHEIK AHAMAD, MAJOR, S/O. MOHAMMAD HUSSAIN, R/O. KOTEWADA, SHATGERI, ANKOLA TALUK, UTTARKANNADA DIST.
4. BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., UDUPI.
... RESPONDENTS (BY SRI.S.V. HEGDE MULKHAND, ADVOCATE FOR R2 R4-SERVED; NOTICE TO R1 & R2 DISPENSED WITH VIDE COURT ORDER DATED 27.03.2019) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.03.2016 PASSED IN MVC NO.836/2012 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, MACT, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA, 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 taken up for final disposal with the consent of learned counsel on both sides.
The injured-claimant has filed this appeal, seeking enhancement of compensation awarded by the Tribunal in MVC No.836/2012 on the file of the Addl. District and Sessions Judge and MACT, Udupi (sitting at Kundapura), Kundapura, wherein the Tribunal has awarded a compensation of Rs.2,46,000/- for the injuries sustained by her in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for Respondent No.2-Insurance Company.
3. It is the case of the appellant that on 10.06.2012 at about 5.30 a.m., while she was traveling in a bus bearing registration No.KA-01-B- 2249 and when the said bus reached Movadi Cross at NH-66, Hasadu Village, Kundapura Taluk, the driver of the said bus lost control over the same due to his rash and negligent driving and dashed against the back portion of a parked lorry. In the said accident, the appellant and several others sustained injuries.
4. The Tribunal after considering the evidence and material on record, awarded the aforesaid compensation to the appellant with interest at the rate of 8% per annum and held that the owner and the Insurer of the offending bus in question are jointly and severally liable to pay the compensation.
5. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel appearing for the appellant contended that the appellant was working as a cook in Delhi and she had an income of Rs.7,500/- per month and due to the accidental injuries, she has suffered permanent disability and she has lost her income as she is unable to do the work. He further submitted that though the Tribunal has assessed the permanent disability to the whole body at 10%, however, no compensation has been awarded towards ‘loss of future earning’. It is his further contention that the compensation awarded by the Tribunal in the facts and circumstances of the case is not commensurate with the injuries sustained by the appellant. Accordingly, he seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. The learned counsel appearing for respondent No.2 – Insurance Company, on the other hand vehemently contended that the appellant has not established her income by adducing any convincing evidence, however, the Tribunal has awarded a sum of Rs.50,000/- for the disability suffered by her. He further contended that the total compensation awarded by the Tribunal is just and reasonable in the facts and circumstances of the case and therefore, the appellant is not entitled for any enhancement and accordingly, he seeks to dismiss the appeal.
7. The Tribunal has held that the accident is on account of the rash and negligent driving by the driver of the offending bus. The Tribunal has held the owner and Insurer of the bus in question jointly and severally liable to pay the compensation. The accident in which the appellant sustained injuries and the actionable negligence on the part of the driver of the said bus has not been seriously disputed.
8. According to the appellant, she was working as a cook in Delhi and earning a sum of Rs.7,500/- per month. She has been examined as PW2 before the Tribunal. Though she has stated in the claim petition that she was earning a sum of Rs.7,500/- per month, however, in her evidence given by way of Affidavit, she has deposed that she was earning more than Rs.10,000/- per month. With regard to the actual income of the appellant, there is no acceptable and convincing evidence placed on record. However, it is her specific case that she was working as a cook which has not been controverted. Taking into consideration the evidence on record and also the year of accident, I deem it appropriate to take the notional income of the appellant at Rs.7,000/- per month.
9. The appellant has sustained a comminuted fracture of right humerus. PW5 is the orthopedic surgeon who has treated the appellant. According to him, the appellant has suffered disability to the right hand to an extent of 20%. The Tribunal has taken the disability to the whole body at 10%. Considering the avocation of the appellant, the disability assessed by the Tribunal is just and proper. However, the Tribunal has not awarded any compensation towards loss of future earning on account of disability. The appellant was aged about 51 years at the time of the accident. The appropriate multiplier applicable to her age is 11. Hence, the appellant is entitled for a compensation of Rs.92,400/- (Rs.7,000x12x11x10/100) towards ‘loss of future earning due to disability.
10. The doctor has stated that her right hand has become weaker than her left hand and she will find it difficult to lift heavy objects and also the movements of the right hand are restricted. The doctor has further deposed that the surgery was conducted and implants were placed and for removal of the said implants, a sum of Rs.20,000/- is required. Considering the nature of injuries and the disability suffered, a sum of Rs.40,000/- awarded under the head ‘pain and suffering’ is just and reasonable.
11. The Tribunal has awarded a sum of Rs.16,000/- towards ‘loss income during treatment period’, the same is enhanced to Rs.28,000/-. A sum of Rs.1,10,000/- is awarded towards medical expenses, based on the material on record and the same is just and proper. The Tribunal has awarded a sum of Rs.50,000/- towards loss of amenities in future life. In the facts and circumstances of case, the same is not disturbed.
12. The compensation of Rs.30,000/- awarded towards conveyance, attendant charges, food and nourishment is enhanced to Rs.40,000/-. Another sum of Rs.10,000/- is awarded for future medical expenses. Hence, the appellant is entitled for a total compensation of Rs.3,70,400/- as against Rs.2,46,000/- awarded by the Tribunal. Hence, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 30.03.2016 passed by the Addl. District and Sessions Judge and MACT, Udupi (sitting at Kundapura), Kundapura in MVC No.836/2012 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.3,70,400/- as against Rs.2,46,000/- awarded by the Tribunal.
The enhanced compensation of Rs.1,24,400/- shall carry interest at the rate of 6% per annum (excluding Rs.10,000/- awarded towards future medical expenses) 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 the copy of this judgment.
Sd/- JUDGE snc