IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO. 1799 OF 2010 (MV) BETWEEN:
MANJU NAIK AGED ABOUT 54 YEARS SON OF LATE NARAYANA NAIK RESIDENT OF 5 CENTS COLONY BAIKADY VILALGE, UDUPI TALUK.
... APPELLANT (BY SRI. PAVANA CHANDRA SHETTY H, ADVOCATE) AND:
DIVISIONAL MANAGER NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION MUDDEBIHALA, GADAG.
(BY SRI. K. NAGARAJA, ADVOCATE) ... RESPONDENT THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2010 PASSED IN MVC NO.1315 OF 2008 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR.DN) AND MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the parties.
Perused the papers.
2. This appeal is filed by the petitioner in MVC No. 1315/2018 on the file of the Additional Civil Judge (Senior Division) and MACT, Udupi. The Tribunal by the impugned judgment dated 30.1.2010 has allowed the appellant’s claim petition awarding a total sum of Rs.69,100/- along with interest at the rate of 8% per annum from the date of the petition till payment. The appeal is filed seeking enhancement in the compensation awarded by the Tribunal.
3. The Appellant, along with his son, was walking on the side of a road when the offending vehicle - a K.S.R.T.C. Bus bearing registration no. KA-28-F-1293 hit the appellant. As a result, the appellant suffered multiple grievous injuries. The Tribunal in appreciation of the evidence on record, has awarded a total
Hospitalization 4. Loss of Income on account of Permanent Disability 5. Conveyance, attendant and extra nourishment food charges Rs. 28,800/-
Rs. 5,000/-
Total Rs. 69,012/-
3. The learned counsel for the appellant contends that there is no dispute about the appellant having been injured in a road accident and suffering injuries as described in Ex.P.4, Wound Certificate, or that the driver of the offending vehicle was responsible for such accident. There is also no dispute about the respondent’s liability. However, the award towards pain and suffering is low considering the injuries suffered. Similarly, the amount awarded by the Tribunal towards medical expenses is also very low, and the appellant has spent way more than the amount awarded towards expenses incurred. The appellant’s income is taken as Rs. 3000/-, while he earned more than that, and therefore, the loss of income and the loss of future income calculated accordingly is erroneous. The learned Counsel for the respondent supported the impugned judgment.
4. The wound certificate, which is marked as Ex.P4, establishes that the appellant suffered multiple fractures on the right side of his face and he was hospitalized for about six days. The appellant, though has contended that his vision has been affected because of such injuries, has not examined the doctor in support of such assertion. In fact, he has stated that according to the Ophthalmologist who attended on him, he has suffered a permanent disablement of 10% of the whole body. In the light of this evidence, though it is difficult to accept that there is loss of vision, it would be indisputable that the appellant has suffered fractures resulting in pain and suffering for a sustained period. As such, a sum of Rs. 20,000/- towards pain and suffering would be on the lower side. The Claimant would be entitled for an additional sum of Rs.20,000/- under this head.
5. The appellant has further asserted that he was earning Rs.200/- per day as an agriculturist and because of the disablement he is unable to work, and as such, he is contending that his monthly income was Rs.6000/-. But, the Tribunal has taken the notional income of the appellant at Rs. 3,000/- per month and functional disability at 10% while applying a multiplier of ‘8’. There is no definite evidence on the actual income of the claimant. But the established would suffice to hold that the appellant was engaged in agriculture work. As per the schedule evolved for settlement in Lok Adalath, in the case of accidents of the year 2008, notional income is taken Rs. 4,000/- per month to achieve uniformity. There is nothing on record to justify denial of such notional income to the claimant. Further, the claimant was undisputedly aged 60 years as of the date of the accident and the applicable multiplier will be ‘9’ as against ‘8’.
6. If the loss of future income is computed, with these two figures while retaining functional disability at 10% as taken by the Tribunal based on the Claimant’s own statement, the appellant will be entitled to enhancement under this head. It is also observed that the Tribunal has not awarded any sum towards loss of amenities. In light of the discussion as aforesaid, this court is of the considered opinion that the appellant would be entitled to an enhancement as per the following computation.
Particulars Amount awarded by the Tribunal Enhanced in this Appeal 1. Pain and Suffering Rs. 20,000/- Rs.20,000/-
2. Medical Expenses Rs. 14,512/- Not Applicable 3. Loss of Income during Hospitalization 4. Loss of Income on account of Permanent Disability 5. Conveyance, attendant and extra nourishment food charges Rs. 700/- Not Applicable Rs. 28,800/- Rs.14940/-
Rs. 5,000/- Not Applicable 6.Loss of amenities Not Applicable Rs.5,000/-
Total Rs. 69,012/- Rs.39,940 7. Therefore, the appeal is allowed in part awarding an additional sum of Rs.40,000/- (a rounded off sum) to the appellant – claimant as an enhancement in the compensation awarded by the Tribunal, with interest at 6% per annum from the date of petition till the date of deposit. The respondent – corporation is directed to deposit the sum of Rs.40,000/- along with interest as aforesaid with the Tribunal within four weeks from the date of receipt of a certified copy of this judgement.
SD/- JUDGE nv