IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 2242 OF 2015 (M V) BETWEEN M. GIRISH S/O KARIGEGOWDA AGED ABOUT 27 YEARS R/AT:- NO. 25, 7TH CROSS 3RD BLOCK, BHOVI COLONY THYAGARAJANAGAR BANGALORE – 560 028. ... APPELLANT (BY SRI P. SURESH, ADVOCATE) AND 1. THE INCHARGE MANAGER ICICI LOMBARD GENERAL INSURANCE CO. LTD., 2ND FLOOR, SVR COMPLEX MADIWALA, HOSUR MAIN ROAD BANGALORE – 560 068.
2. A. SRINIVASA S/O. ANANTHARAMU MAJOR IN AGE R/AT:- NO.18, INDIRA COLONY RPC LAYOUT, VIJAYANAGAR BANGALORE – 560 040. ... RESPONDENTS (BY SRI. CHAKRAVARTHY. D – ADVCOATE FOR SRI A. N. KRISHNA SWAMY – ADVOCATE FOR R-1 NOTICE TO R-2 DISPENSED WITH VIDE COURT ORDER DATED 01.06.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.12.2014 PASSED IN MVC NO. 2125/2014 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant - claimant and the learned counsel for the Insurance Company - Respondent no.1 and perused the records. Notice to the owner – Respondent No.2 has been dispensed with vide order dated 1.6.2015.
2. The injured-claimant has preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in its impugned judgment dated 20.12.2014 in MVC No.2125/2014, seeking enhancement of compensation.
3. The factual matrix is that on 29.04.2014 at about 5.30 p.m., when the appellant was proceeding on his motor cycle bearing Regn. No.KA-05-JB-6844, near 10th Cross Junction, 2nd Main Road, Thyagarajanagar, Bangalore carefully and cautiously, the driver of a Tata Winger vehicle bearing Regn. No.KA-02-AD-3228 drove it in a rash and negligent manner and dashed against his motor cycle as a result of which the appellant fell down and sustained fracture of shaft of left femur bone and other injuries. Firstly he was treated at Sagar Hospital and later was shifted to Jayanagar Orthopaedic Centre, Bangalore, where he took treatment as an in- patient by spending huge amount. Hence, he filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the offending vehicle did not appear and was placed exparte. However, the Insurer – Respondent No.1 appeared before the tribunal and filed its written statement and contested the claim petition. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
5. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.5,15,953/- with interest at 6% per annum from the date of petition till the date of realization.
6. The learned counsel for the appellant - claimant vehemently contended that though PW-3 Orthopaedic Surgeon in his evidence has clearly stated that the petitioner had sustained fracture shaft of left femur and as a result has sustained permanent physical disability of 27% of left lower limb and 13.5% to the whole body, but however the Tribunal has considered his whole body disability at 10% to grant compensation. He contends that the percentage of disability has to be taken at 13.5% and the compensation needs to be re-worked.
Moreover, the appellant could not attend to his work for a minimum period of three months. Whereas the Tribunal has awarded compensation towards ‘Loss of income during laid up period’ only for two months. Hence, he contends that since he had not attended to work for more than three months, compensation under the said head may be awarded for another month, considering the fact that he had not attended to his work for three months.
It is his further contention that though PW-3 Doctor had opined that one more surgery was required to remove the implants after fracture union, which may cost around Rs.30,000/-, the Tribunal has granted a very meagre compensation of Rs.10,000/- towards the said head and hence, the same also requires to be enhanced.
Further, as far as ‘Loss of amenities, conveyance, food and nourishment and attendant charges’ is concerned, having regard to the fact that he was an in- patient for 27 days and had undergone surgery and also took treatment as an outpatient and had spent huge amounts of money, the Tribunal was not justified in awarding a very meagre sum of Rs.25,000/- and hence, he prays that the compensation under the said head should be enhanced suitably. On all these grounds, the learned counsel contends that the compensation may be suitably enhanced by this court, having regard to the nature of injuries suffered by the appellant.
7. Per contra, the learned counsel appearing for the insurer submitted that the tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that the injured claimant had sustained fracture of shaft of left femur bone and was fixed with implants and had also to under further surgery for removal of implants. He had continuously taken treatment as an outpatient also, after having been treated as an in-patient in hospital for 27 days. He had taken a period of three months for recuperation and had not attended work for a period of three months. Taking all these facts into consideration, I find that three months’ salary has to be given towards ‘Loss of income during laid up period’ instead of two months. Hence, I hereby grant another sum of Rs.11,700/- in addition to Rs.23,400/- towards ‘Loss of income during laid up period’.
Further, having regard to the evidence of the Doctor, I hereby consider the appellant’s disability at 12% instead of 10% adopted by the Tribunal. Hence, with the monthly income at Rs.11,700/- and applying multiplier ‘17’ and taking the disability at 12%, the ‘Loss of future earning’, is hereby worked out to Rs.2,86,416/- (11700 x 12 x 17 x 12/100) as against Rs.2,38,680/- awarded by the tribunal. The enhancement is Rs.47,736/- under the said head.
Further, the future medical expenses is enhanced by another Rs.15,000/- instead of Rs.10,000/- awarded by the Tribunal. Hence, the total compensation towards ‘Future medical expenses’ would come to Rs.25,000/-.
Further, the compensation towards ‘Loss of amenities, conveyance, food and nourishment, attendant charges, etc.’ is hereby enhanced by another sum of Rs.25,000/- in addition to Rs.25,000/- granted by the Tribunal under the said head, which would amount to Rs.50,000/- totally under the said head. However, the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference.
The total enhanced compensation would come to Rs.99,436/-, which shall stand rounded off to Rs.1,00,000/-. Thus, in all, the claimant is entitled to total enhanced compensation of Rs.6,15,953/- as against Rs.5,15,953/-awarded by the tribunal.
9. In view of the discussion made above and with the altered factors, the compensation is re-worked out
TOTAL 5,15,953 1,00,000 6,15,953 Accordingly, I pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 20.12.2014 passed by the Tribunal in MVC No.2125/2014, the compensation payable to the claimant is enhanced from Rs.5,15,953/- to Rs.6,15,953/-. The enhanced compensation would come to Rs.1,00,000/-. The first respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant, in terms of the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS