IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.2571 OF 2018 (MV) BETWEEN Mahadevappa S/o Late Mallappa Aged about 57 years R/o Avverahalli Village Malavalli Taluk Mandya District – 571 421. … Appellant (By Sri. Sreenivasan M.Y, Advocate) AND 1. Mahesha K.N S/o Nanjappa K.S Major R/o 5469, 2nd Cross, Thyagaraja Colony Nanjanagudu, Mysore District – 570 031.
2. The Divisional Manager United India Insurance Co. Ltd Door No.2, No.2912 Sri Venkateshwara Plaza 1st Main, Saraswathipuram Mysore – 570 005. … Respondents (By Sri. C.Shankar Reddy, Advocate for R2, Notice to R1 d/w) This appeal is filed under Section 173(1) of MV Act, against the judgment and award dated: 18.12.2017 passed in MVC No.517/2016 on the file of the Senior Civil Judge and JMFC, Malavalli, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This appeal has been filed by the appellant/claimant challenging the impugned judgment and award dated 18.12.2017 passed by the Court of the Senior Civil Judge and JMFC at Malavalli (for short ‘the Tribunal’), in M.V.C.No.517/2016, awarding a sum of Rs.2,72,400/- together with interest at 9% p.a. from the date of petition till the date of realization towards the injuries sustained by the appellant-claimant in a road accident that occurred on 15.04.2016.
2. Though the matter is listed for orders, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
3. Both the counsels submit that the occurrence of accident and the liability as well as the coverage of the offending vehicle by the Insurance company are not in dispute and this appeal is restricted to quantum of compensation awarded by the Tribunal.
4. The Tribunal has awarded a total compensation of Rs.2,72,400/- in favour of the appellant which is as hereunder:
(in Rs.) Particulars Amount
Future Prospectus 10,000/-
Total 2,72,400/-
5. The learned counsel for the appellant submitted that the Tribunal has committed an error in coming to the conclusion that the permanent disablement that the appellant had suffered permanent disablement to the extent of only 15% which is contrary to the material on record. It is contended that as per the evidence of PW.1 and CW.1, the Dr.Gurumurthy.B, the appellant suffered a permanent disablement of 20% to the entire body and the Tribunal committed an error in coming to the conclusion taking the disability as only 15%. It is therefore contended that if the permanent disability to the entire body is taken at 20%, the appellant would be entitled to the higher compensation under the head ‘loss of future earnings’ on account of permanent disability.
6. It was also contended by the learned counsel for the appellant that the Tribunal committed an error in not awarding any compensation to the appellant under the head of ‘loss of income during the laid up period’. In this context, it is submitted that in view of the grave and serious nature of the injuries suffered by the appellant, there was a loss of income for the period of three months during which period he did not have any income and consequently, the appellant would be entitled to the compensation under the said head. It is also contended that having regard to the nature of injuries sustained by the appellant, the sum of Rs.10,000/- awarded under the head ‘food, diet etc.,’ is meager and inadequate and the same requires enhancement, in view of the undisputed fact that the appellant was inpatient for a period of 20 days. It is therefore contended that the appellant was entitled to the enhancement of compensation under the heads mentioned above.
7. Per contra, learned counsel for the respondent No.2 – insurance company would support the impugned judgment and award passed by the MACT. It was also contended by him that the Tribunal committed an error in awarding a sum of Rs.10,000/- towards ‘future prospects’ which is not permissible in law and that the appellant was not entitled to the said amount. Subject to said contention, the learned counsel for respondent No.2 sought for dismissal of the appeal.
8. I have given careful consideration to the rival submissions and perused the material on record.
9. As rightly contended by the learned counsel for the appellant the unimpeached, oral and documentary evidence on record, in particular the evidence of the doctor-CW.1 and the medical records would clearly establish that the appellant had suffered permanent disablement to an extent of 20% to the entire body coupled with the fact that he was inpatient for a period of 20 days. Respondent No.2 – insurance company has not adduced any contra/rebuttal evidence to disprove or impeach the evidence produced by the appellant, which would conclusively establish that there was permanent disability to the extent of 20% to the entire body suffered by the appellant. Under these circumstances, having regard to the material on record, I am of the opinion that the Tribunal has committed an error in taking the disability as 15% as against the disability of 20% which is borne out from the material on record. In view of the lok-adalath guidelines stipulating the notional income in respect of the accident that took place in the year 2016, the Tribunal has taken the notional income as Rs.10,000/- per month. Accordingly he would be entitled Rs.1,68,000/- under the head ‘loss of future earnings’ as stated hereunder;
10,000/- X 20/100 X 12 X 7 = Rs.1,68,000/-.
Thus, the appellant would be entitled to an additional sum of Rs.42,000/- under this head.
10. Consequent to my finding that the appellant had suffered 20% disability to the entire body, he would also entitled to loss of income during laid-up/treatment period which has not been awarded by the Tribunal. Accordingly, in view of the fact that the notional income of the appellant is to be taken as Rs.10,000/- per month, the appellant would be entitled to a sum of Rs.20,000/- towards the ‘income during laid-up period/treatment period of three months’. Hence, the appellant would be entitled to an additional compensation under this head also.
11. Having regard to the nature of injuries sustained by the appellant coupled with the fact that he was inpatient for a period of 20 days, I am of the opinion that sum of Rs.10,000/- is awarded by the Tribunal towards ‘food, diet etc.,’ is inadequate and the same requires to be enhanced by sum of Rs.5,000/-.
Accordingly, the appellant would be entitled to a sum of Rs.15,000/- under this head.
12. As rightly contended by the learned counsel for respondent No.2, the Tribunal has committed an error in awarding a sum of Rs.10,000/- to the appellant under the head ‘future prospects’ which is not permissible in law. Accordingly, I am of the opinion that the appellant is not entitled to the said sum under the said head. The Tribunal also committed an error in awarding only a sum of Rs.10,000/- towards ‘loss of amenities’ particularly when, having regard to the nature of injuries sustained by the appellant to his right leg, especially to his right leg and right lower limb including two fractures, the appellant would be entitled to an additional sum of Rs.10,000/- towards ‘loss of amenities’.
13. In view of the discussion made above, the total compensation has to be reworked as here under;
(in Rs.) Particulars Amount Permanent disability 1,68,000/- Loss of income during laid up period 30,000/- Food, diet etc 15,000/-
Pain and suffering 50,000/-
Medical expenses 66,400/-
Loss of amenities 20,000/-
Total 3,49,400/-
As stated above, the Tribunal has awarded a sum of Rs.2,72,400/-. Thus, the appellant would be entitled to an additional enhanced compensation of Rs.77,000/- (3,49,400/- - 2,72,400/-) together with interest at 6% p.a. from the date of claim petition till realization.
14. In view of the aforesaid discussion, I pass the following;
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 18.12.2017 passed by the Court of the Senior Civil Judge and JMFC at Malavalli in M.V.C.No.517/2016 is hereby modified.
(iii) The appellant-claimant is entitled to additional enhanced compensation of Rs.77,000/- which shall carry interest at 6% p.a. from the date of petition till realization.
(iv) The enhanced compensation amount is hereby directed to release in favour of the appellant.
Ordered accordingly. No costs.
Sd/- JUDGE ssb