IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.3201 OF 2017 [MV] BETWEEN MARI SWAMY, S/O. SIDDAIAH, AGED ABOUT 68 YEARS, R/AT NO.IDK-22/A, HUTHA COLONY, BHADRAVATHI, SHIVAMOGGA DISTRICT-577 201.
... APPELLANT (BY SRI. M. V. MAHESWARAPPA, ADVOCATE) AND 1. P. PRADEEP KUMAR, S/O. LATE PUTTASWAMY, AGED ABOUT 26 YEARS, R/AT KACHAGONDANAHALLI VILLAGE, ANTARAGANGE POST, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577 201.
2. D. JAGADEESHA, S/O. DEVEGOWDA, AGED ABOUT 45 YEARS, R/AT NO.16, 5TH CROSS, LEFT SIDE ROAD, HOSAMANE ROAD, HOSAMANE BHADRAVATHI, SHIVAMOGGA DISTRICT-577 201.
3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO.LTD., BHADRAVATHI BRANCH, PREMA COMPLEX, B.H.ROAD, BHADRAVATHI, SHIVAMOGGA DISTRICT-577 201.
... RESPONDENTS (BY SRI. R. RAJAGOPALAN, ADVOCATE FOR R3;
R1-SERVED; R2- NOTICE DISPENSED WITH VIDE COURT ORDER DATED 13.11.2017) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.10.2016 PASSED IN MVC NO.97/2014 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI, 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:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both sides.
This appeal is arising out of MVC No.97/2014 on the file of the IV Addl. District and Sessions Judge, Shivamogga, sitting at Bhadravathi and Addl. MACT.
The injured-claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal, wherein the Tribunal has awarded a compensation of Rs.1,32,115/-.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for Respondent No.3-Insurance Company.
3. The case of the appellant is that on 22.03.2013 at about 7.30 a.m., he, along with his family members, was traveling in Omni Car bearing registration No.KA-14-M-6576, to perform pooja at Mandya Taluk, when they reached near Government School M.C. Halli, Terekere Taluk, the driver of the said Omni car drove the same in a rash and negligent manner and suddenly applied break, on account of which, the driver lost control over the vehicle and dashed against the lorry bearing registration No.TN- 23-AA-2700, which was coming from the opposite direction. In the said accident, the appellant and his family members sustained injuries. The appellant was shifted to Nanjappa Hospital, wherein he took treatment as an inpatient for about five days.
4. The appellant filed a claim petition in MVC No.97/2014 claiming total compensation of Rs.6,90,000/- for the injuries sustained by him. The Tribunal has awarded a total compensation of Rs.1,32,115/- with interest at 6% per annum from the date of petition till realization.
5. The learned counsel for the appellant would contend that the appellant was an agriculturist having an income of Rs.7,000/- to Rs.8,000/- per month. However, the Tribunal has taken a meager income of Rs.5,000/- per month. He submits that the total compensation awarded under different heads are on the lower side. He further contends that the appellant has suffered neuro disability to an extent of 50% and therefore, the Tribunal is not justified in taking the disability at 10% to the whole body and accordingly seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. Per contra, the learned counsel appearing for respondent No.3-Insurance Company contended that the appellant has not adduced any evidence to hold that he was earning Rs.7,000/- to Rs.8,000/- per month. He further submits that the total compensation awarded is just and reasonable in the facts and circumstances of the case. Accordingly, he seeks to dismiss the appeal.
7. The accident in question and the appellant sustaining injuries in the accident owing to the rash and negligent by the driver of the Omni car bearing registration No.KA-14-M-6576 which is insured with respondent No.3-Insurance Company is not in dispute.
8. According to the appellant, he was an agriculturist and having an income of Rs.7,000/- to Rs.8,000/- per month. The Tribunal has taken the notional income of the claimant at Rs.5,000/- per month. The appellant was aged about 64 years at the time of accident. The accident has occurred in the year 2013. Considering that the appellant was an agriculturist and also considering the year of accident, I deem it proper to take the notional income of the appellant at Rs.7,000/- per month as against Rs.5,000/- per month taken by the Tribunal.
9. As per the wound certificate marked at Ex.P-4, the appellant has sustained three simple injuries and three grievous injuries. The grievous injuries are :
(1) Fracture antero inferior aspect of c3 vertebral body, (2) Mild cord edema/contusion at 3-4 (3) Fracture of nasal bone.
10. The doctor is examined as CW1. He has deposed that the injured was treated by General Surgeon and since the injured had suffered injuries on head and neck, his opinion was sought. On examination, he noticed the injuries to the head and neck. Stitches were applied on his forehead. There was no injuries to scalp. Nasal bone, neck bone and bone of toes were broken. Operation was done by fixing collar. The appellant was discharged from the hospital on 26.03.2013. Again on his examination on 02.06.2013, it was found that there was disability in his right hand and difficulty in walking in respect of left leg. He has deposed that the petitioner has neuro disability at 50%. He was having difficulty in walking and climbing upstairs. The disability assessment report and certificates are marked as Exs. C-5 and C-6 respectively. Considering the aforesaid medical evidence on record, I deem it appropriate to consider the disability suffered by the appellant to the whole body at 15%. The appropriate multiplier applicable to the age of the appellant is 7. Therefore, the appellant is entitled for compensation of Rs.88,200/- (Rs.7,000x12x7x15/100) towards loss of income due to permanent disability as against Rs.42,000/-
awarded by the Tribunal. A sum of Rs.40,000/- awarded towards pain and suffering is just and proper. An amount of Rs.9,000/- awarded towards nutritious food, attendant, conveyance is enhanced to Rs.12,000/-. A sum of Rs.10,000/- awarded towards loss of income during laid up period is enhanced to Rs.14,000/-. The Tribunal has not awarded any compensation towards loss of amenities, a sum of Rs.25,000/- is awarded under the said head. A sum of Rs.31,115/- awarded towards medical bills is just and proper. In all, the appellant is entitled for a total compensation of Rs.2,10,315/- as against Rs.1,32,115/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 25.10.2016 passed by the IV Addl. District and Sessions Judge sitting at Bhadravathi and Addl. MACT in MVC No.97/2014 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.2,10,315/- as against Rs.1,32,115/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.3-Insurance Company is directed to deposit the entire amount within four weeks from the date of receipt of the copy of this judgment.
Sd/- JUDGE snc