IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.10393 OF 2013 (MV) BETWEEN: MANI S/O VELAYUDHAN, AGED ABOUT 43 YEARS, R/O SEEGODE SITE, DEVAGODU VILLAGE, KOPPA TALUK, CHIKAMAGALUR DISTRICT-577 101. ... APPELLANT (BY SRI VINOD GOWDA, ADVOCATE) AND 1. N. PRAKASH S/O NANJAPPA, AGED ABOUT 43 YEARS, R/O NO.47,2ND A CROSS, SRINIVASANAGAR, KATHRIGUPPE MAIN ROAD, BANGALORE-560 021 2. THE BRANCH MANAGER IFFCO TOKIO GENERAL INSURANCE CO.,LTD., NO.8,3RD FLOOR,KSCMF BUILDING, NEXT TO HOTEL CHANDRIKA, CUNNINGHAM ROAD, BANGALORE-560 002.
(By Sri.E.I.SANMATHI, ADVOCATE FOR R2 ... RESPONDENTS NOTICE TO R1 DISPENSED WITH V/C/O DATED 4.4.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.10.2013 PASSED IN MVC NO.136/2013 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, CHIKMAGALUR, 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:
J U D G M E N T The appellant has filed this appeal seeking enhancement of compensation against the Judgment and Award dated 24.10.2013 passed in M.V.C.No.136/2013 on the file of II Additional District Judge and Member M.A.C.T., Chikmagalur and fixing 50% of contributory negligence on the part of appellant which is also the subject matter in the appeal.
2. It is case of the appellant that he has sustained grievous injuries in a Road Traffic Accident occurred on 08.04.2012 when he was proceeding on his Motor cycle bearing registration No.KA-18/V-3449, the offending vehicle Car bearing registration No.KA -01/P-6171 drove the said vehicle in a rash and negligent manner and dashed against the motor cycle of the claimant-appellant, due to which the appellant sustained grievous head injuries. In this regard he made claim petition before the Motor Accident Claims Tribunal, the Tribunal by its Judgment and award dated 24.10.2013 passed in MVC No.136/2013, holding that respondents 1 and 2 are jointly and severally liable to pay 50% of the compensation to the petitioner out of the awarded compensation of Rs.94,000/- divided 2 equals to Rs.47,000/- with 6% interest from the date of claim petition till realization fixing 50% negligence on the part of the appellant. Being not satisfied with the compensation amount and also to modify the order with regard to the 50% negligence, the appellant is before this Court.
3. The learned counsel for the appellant submits that the Tribunal has assessed income of the appellant at Rs.4,000/-
p.m. The Tribunal ought to have assessed the income at Rs.7,000/- p.m for awarding compensation under the head of loss of income during laid-up period, as the accident occurred in the year 2012. The Tribunal has not awarded compensation under the head loss of amenities and the compensation awarded under the heads pain and sufferings and special diet, attendant charges and conveyance are on lower side and also fixing 50% negligence on the part of the appellant is erroneous and there is no evidence to prove the same. Hence sought to enhance the same by modifying the judgment and award of the Tribunal.
4. The learned counsel for the respondents sought to dismiss the appeal as the compensation awarded by the Tribunal is just and proper.
5. I have heard learned counsel for both sides and perused the records.
6. As per Ex.P5-wound certificate shows that the appellant had sustained grievous injuries with fracture of right forth rib, Pneumo thorax with T9 compression fracture with right knee MCN and ACL tear and according to doctor who issued the wound certificate the injury sustained by the appellant is grievous in nature which is also supported by Ex.P.9 discharge summary.
7. Considering the nature of injuries sustained by the claimant, a sum of Rs.60,000/- is awarded as against Rs.40,000/- awarded by the Tribunal towards ‘pain and suffering’.
8. Considering the nature of injuries sustained by the appellant and the year of accident 2012, the notional income is to be assessed taking into consideration relevant factors. Hence his income would be taken as Rs.7,000/-p.m. The nature of injuries suggest that he must have been under rest and taken treatment for a period of 4 months and therefore a sum of Rs.28,000/- (7000X4) is awarded towards ‘loss of income during laid up period’ as against Rs.12,000/- awarded by the Tribunal.
9. Considering the injuries sustained, 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.30,000/- is awarded towards ‘loss of amenities’ .
10. Rs.31,500/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the appellant does not call for any interference.
11. The appellant was treated as in-patient in different hospitals. Considering the duration of treatment, Rs.20,000/- is awarded towards ‘incidental expenses’ such as conveyance, special diet and attendant charges against Rs.10,500/- awarded by the Tribunal.
12. Thus, the claimant is entitled for the following compensation:-
appellant is entitled for an additional compensation of Rs.75,500/- with interest at 6% p.a. from the date of claim petition till the date of realisation. Further fixing 50% negligence on the part of the appellant without sufficient reasons is erroneous. There is no evidence adduced by the insurance company with regard to the same. Hence order of the tribunal stands modified with regard to 50% negligence. Insurance company to satisfy entire award amount of Rs. 1,69,500/- with 6% interest from the date of claim petition till realization of the entire award amount. The judgment and award of the Tribunal stands modified accordingly.
Sd/-
ACTING CHIEF JUSTICE HR