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 MISCELLANEOUS FIRST APPEAL NO.1353 OF 2014 (MV) BETWEEN:
M.N.NAGENDRAPPA S/O NINGAPPA AGED ABOUT 57 YEARS R/O AVARAGERE VILLAGE DAVANAGERE PIN CODE - 577 001 ... APPELLANT (BY SRI. PRAKASHA H.C., ADV.) AND:
1. KARISIDDAPPA S/O RAMANNA AGED ABOUT 41 YEARS DRIVER OF BULLERO TRUCK R/O NEAR ANJANEYA COTTON MILL THOLAHUNASE DAVANAGERE - 577 001 2. S.M.REVANASIDDAPPA S/O S.M.NANJAPPA AGED ABOUT 45 YEARS OWNER OF BULLERO TRUCK R/O NEERAJI POST SULTANAPURA DAVANAGERE TQ & DISTRICT PIN CODE - 577 001 3. THE MANAGER IFFCO TOKIO GENERAL INSURANCE CO. LTD., BRANCH OFFICE 3RD MAIN ROAD, P J EXTENSION DAVANAGERE PIN CODE - 577 001 ... RESPONDENTS (BY SRI.E.I.SANMATHI, ADV. FOR R3; NOTICE TO R1-R2 ARE D/W) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:2.7.2013 PASSED IN MVC NO.821/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, MACT-4, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T In the road traffic accident that took place on 20th September 2010 at 9.00 a.m. when the appellant was proceeding on his motorcycle on NH-4 from Davanagere towards Mallashetyhalli, near Indian Oil Corporation petrol bunk of Honnuru Gollarahatti, the offending vehicle, Bolero truck being driven by its driver in a rash and negligent manner, dashed to the hind side of the motorbike which resulted in the riders falling down from the bike. The appellant sustained fractures and was shifted to SSI hospital and from there he was taken to Apoorva Hospital. There he took treatment as an inpatient from 20th September to 08th October, 2010. He made claim petition before the Principal Senior Civil Judge and Motor Accident Claims Tribunal-IV at Davangere seeking compensation for the injuries suffered. The Tribunal, by its judgment and award dated 02nd July, 2013 passed in MVC No.821 of 2011 awarded compensation of Rs.40,000/- with interest at 6% per annum. Being aggrieved by the compensation amount, the appellant is before this court in this appeal seeking enhancement.
2. The learned counsel appearing for the appellant submits that the Tribunal has erred in awarding the meagre compensation. Though the bills for Rs.56,640/- has been produced in support of the medical expenditure, the Tribunal has awarded only Rs.20,000/- which is an error. The learned counsel further submits that the Tribunal has not awarded any amount towards loss of income during the treatment period. He further submits that the Tribunal has also erred in not awarding any amount towards disability. He submits that the overall compensation awarded by the Tribunal is on the lower side and hence seeks to allow the appeal by suitably enhancing the compensation.
3. The learned counsel appearing for the respondent- insurer supports the judgment of the Tribunal and submits to dismiss the appeal. He submits that the Tribunal, considering the oral and documentary evidence placed before it, has awarded the just compensation and the same does not call for interference in this appeal.
4. Heard the learned counsel for the parties. The accident is not in dispute and the injuries sustained in the accident is also not in dispute. In the accident, the appellant ha suffered fracture of both tibia and fibula of left leg for which he underwent surgery and was operated with open reduction internal fixation with interlocking nailing with “K” wire fixation of medial malleolus. The Doctor-PW2 has stated that the petitioner has suffered 40% disability to the whole body. The same is supported by exhibit P6-Disability certificate. The Tribunal in the course of its order has opined that the disability percentage to the whole body comes to 10%. The appellant, in the claim petition, has claimed that he was earning Rs.20,000/- per month by carrying on real estate business. The Tribunal has not awarded any amount towards loss of future income and the loss of income during laid up period. The Tribunal has also not awarded any compensation under the head disability. It come in the observation made by the Tribunal that the appellant has suffered 40% disability to the whole body and the same is taken at 10% to the whole body. It has also observed that considering the age of the injured, the multiple that would be applicable is 9. Since the Tribunal has not assessed the monthly income of the injured as the appellant has not proved the income by producing any documentary or material evidence, the notional income is to be assessed. In the absence of any material or documentary evidence produced, the notional income is to be assessed with relevance to year of accident. The accident is of the year 2010 and the appellant was aged 54 years at time of accident. Considering the age of the appellant and also the fact that he has to look after his family consisting of wife and children, the notional income is to be assessed at Rs.5,500/- per month. If the same is taken, the calculation would be Rs.5,500/- x 12 x 9 x 10% comes to Rs.59,400/-. The same is awarded under the head loss of future income. Considering the evidence of Doctor that the appellant has to undergo one more surgery for removal of implants, Rs.20,000/- is awarded towards future medical expenses. Considering the nature of injury and the period of treatment, an amount of Rs.16,500/- is granted towards loss of income during the treatment period. The Tribunal has not granted any amount towards Incidental Charges and Amenities. Considering the nature of injury and the hardship undergone by the appellant, Rs.20,000/- each is awarded under Incidental charges and towards Amenities. Since the appellant has produced medical bills for Rs.56,640/- the Tribunal has disbelieved the same and has awarded Rs.20,000/-. In view of the fact that the appellant has produced medical bills, the remaining amount of Rs.36,640/- is awarded towards medical expenses. The appellant has suffered fracture and disfigurement. Considering the fact that the appellant is aged 57 years and has to undergo the hardship and agony for the rest of life I am inclined to award another Rs.35,000/- under the head pain and suffering. The total enhanced compensation would be Rs.2,07,540/- to which the interest, at the rate awarded by the Tribunal, works out around Rs.92,000/-. In total the compensation is enhanced by another Rs.3,00,000/- globally.
Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn