IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA M.F.A. NO.786 OF 2013 (MV) BETWEEN:
Mahadevanaika S/o late Narayananaika, Age: 53 years, Permanent Address Thondavadi Village, Begur Hobli, Gundlupet Taluk.
Present Address:
Halladakeri, Nanjanagud Town, Mysore District – 571 301.
. . . Appellant (By Sri. B.N. Manjula, Advocate for Sri. R.C. Nagaraj, Advocate) AND:
1. Nidhisha V.K. S/o Swamy V.K., Age 31 years, D.No.31, HIG-1, Group-2, KHB Colony, Hutagalli, Mysore – 570 017.
2. Royal Sundaram Alliance Insurance Co., Ltd., Sundarm Towers, No.46, Waits Road, Rayapetta, Chennai – 600 014.
. . . Respondents (By Sri. C.R. Ravishankar, Advocate for R-2 R-1 served) This Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 19.07.2012 passed in MVC No.35/2011 on the file of the MACT, Senior Civil Judge, Nanjangud, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T Claimant aggrieved by the quantum of compensation awarded by the Tribunal, has preferred this appeal seeking enhancement of compensation.
2. Heard the learned counsel appearing for the parties. Perused the judgment and award passed by the Tribunal.
3. With the consent of the learned counsels appearing for parties, the appeal is heard, admitted and taken up for final disposal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 10.12.2010, due to rash and negligent driving of the Swift car bearing registration No.KA-09-Z-3075 by its driver and liability of the insurer of the offending vehicle, the only point that arises for consideration in the appeal is:
“Whether the compensation of Rs.2,55,000/- with interest at 6% p.a. awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence, it is required to be enhanced.
6. As per Ex.P.3 - Wound Certificate, claimant has sustained fracture of right leg, fracture of femur to right leg, injuries sustained and treatment taken by the claimant is also evident from Ex.P.4 to P.77 - Medical bills, Ex.P.78 to P.82 - prescriptions, Ex.P.83 to P.91 and Ex.P.93 to P.96 - X-rays Ex.P.92 – case sheet and Ex.P.97 – out patient receipt and supported by the oral evidence of the claimant and doctor, who were examined as PW.1 and PW.2 respectively. PW.2 Dr. B.G. Sagar in his evidence has stated that claimant has suffered disability of 44.14% to whole body.
7. Considering the nature of injuries sustained by the claimant a sum of Rs.65,000/- is awarded towards ‘pain and suffering’ as against Rs.20,500/- awarded by the Tribunal.
8. As Rs.30,300/- awarded by the Tribunal towards ‘medical expenses’ is as per medical bills produced by the claimant it is just and proper and there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 50 days at K.R. Hospital, Mysuru. Considering the duration of the treatment, a sum of Rs.25,000/- is awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges as against Rs.9,000/- awarded by the Tribunal.
10. The claimant claims have been working as a tailor and earning a sum of Rs.10,000/- per month, but the same is not established by producing any documents. In the absence of proof of income, considering his age as 52 years, the year of accident as 2010 and his avocation as daily wager his income could be assessed at Rs.5,500/- per month as against Rs.4,500/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 1 month and therefore a sum of Rs.33,000/- is awarded towards ‘loss of income during laid up period’ as against Rs.5,000/- awarded by the Tribunal.
11. The claimant is aged about 52 years at the time of accident and the multiplier applicable to his age group is 11. His income is assessed at Rs.5,500/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 44.14% to the whole body, on account of fracture of femur and has not stated the disability caused to lower limb. Fracture of femur is united. Therefore, justice would be made if disability caused to whole body is taken at 35% as against 30% taken by the Tribunal. Therefore, the ‘loss of future income’ works out to Rs.2,54,100/- (5500 x 12 x 11 x 30/100) and it is awarded as against Rs.5,000/- awarded by the Tribunal.
12. Considering the nature of injuries sustained by the claimant and disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.50,000/- is awarded towards ‘loss of amenities’.
13. Considering the nature of injuries, a sum of Rs.12,000/- awarded by the Tribunal towards ‘future medical expenses’ is just and proper.
14. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
Pain and sufferings 65,000 Medical Expenses 30,300 Incidental expenses 25,000 Loss of income during laid up period 33,000 Loss of amenities 50,000 Loss of future income 2,54,100 Future medical expenses 12,000 TOTAL 4,69,400
15. Accordingly, the appeal is allowed-in-part.
The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.2,14,400/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
16. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, Rs.1,50,000/- with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 5 years and with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.
17. The Tribunal while releasing balance amount is also directed to issue the fixed deposit slips, so as to enable the claimants to withdraw the fixed deposit amount on its maturity without approaching the Tribunal once again and the Bank is also directed to release the fixed deposit amount on maturity without insisting for any further order from the Tribunal.
Sri. C.R. Ravi Shankar, learned counsel who was directed to take notice for respondent No.2. and who has argued the case on behalf of Insurance Company is granted two weeks time to file his Vakalath.
No order as to costs.
SD/- JUDGE MBM