IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY M.F.A. No.5322/2016[MV] BETWEEN :
Mr. Melwin Ranjith Montheiro S/o. Bernard Montheiro, Aged about 23 years, R/at Chembugudde House, Permannur Post & Village, Mangaluru Taluk, D.K. District-575 018 ... APPELLANT (BY SRI G. RAVISHANKAR SHASTRY, ADV.) AND :
1. Mr. Sudhakar Poonja, S/o. Seetharama Poonja, Major, R/At D.N.2-109S(14)3, Janani, Durganagara, Kulai Hosabettu, Surathkal, Mangaluru Taluk, D.K. District-575 014 2. United India Insurance Co. Ltd., Shree Vittal, Main Road, Surathkal, Mangaluru Taluk, D.K. District-575 014 represented by Its Manager (BY SRI O. MAHESH, ADV., FOR R2; R1-NOTICE SERVED) …RESPONDENTS This Miscellaneous First Appeal is filed under Section 173(1) of M.V.Act against the judgment and award dated 16.04.2016 passed in MVC No.866/2014 on the file of the Principal Senior Civil Judge & MACT, Mangaluru, D.K., 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 The appellant having suffered injuries in the road traffic accident on 21.01.2014, had approached the claims Tribunal seeking compensation from the Insurance Company and Owner of the offending vehicle.
2. To prove the accident and injuries sustained by him, he got examined himself as PW1, the Doctor as PW2 and got marked the documents - F.I.R., Complaint, Wound Certificate, 2 Police Intimations, Spot Mahazar, Spot Sketch, IMV Report, Charge Sheet, 2 Discharge Summaries, Disability Certificate, 31 Medical Bills, Medical Prescriptions, Case Sheet and X-rays, as Exs.P1 to 16, respectively. Respondent-Insurance Company has not examined any witness, however, got marked Insurance Policy as Ex.R1.
3. Learned counsel for the appellant submits that the Tribunal had awarded a sum of Rs.4,26,532/-, which is on the lower side if compared to the consequences suffered by the appellant, as he has sustained injuries on right distal 3rd tibia fracture, type III amputation of 4th toe of right foot, right brachial plexus with right sides nerve root, avulsion at C5, C6, C7 and C8/TI level and tenderness of neck and other injuries all over the body. He was treated in Yenepoya Hospital, Derlakatte, Mangaluru as inpatient from 21.01.2014 to 20.02.2014 and also admitted to Bombay Medical Research Centre at Mumbai on 08.04.2014 as inpatient, wherein, surgery was conducted to his right hand and discharged on 11.04.2014 with an advice to take bed rest and follow-up treatment. The Doctor, who was examined as PW2 before the Tribunal, has deposed that the power of joint in the right hand of the appellant has diminished and there is no sensation in his right hand, therefore, he has assessed 90% disability to the particular limb. The appellant has obtained Disability Certificate from the Government of Karnataka Medical Board issued by the District Surgeon of Wenlock District Hospital, Mangaluru. On the basis of these facts, the learned counsel submits that the judgment and award passed by the Tribunal is liable to be modified by awarding reasonable compensation.
4. Learned counsel for the Insurance Company has denied the appeal grounds and submitted that it is the case where the Tribunal committed an error in not fixing some contributory negligence on the part of the claimant. Further he submits that evidence of PW2- Doctor is exaggerated and the compensation awarded is on the higher side. In the cross-examination of PW2, it was suggested that the Disability Certificate has not been issued by the treated Doctor which was denied and stated that only once the appellant appeared before the Medical Board and before issuing the Disability Certificate, Medical Report and Disability Card were gone through. Under these circumstances, it is submission of the Insurance Company to dismiss the appeal.
5. I have heard the arguments of both the parties and perused the records.
6. The Disability Certificate marked as Ex.P12 issued by the Wenlock Hospital, Mangaluru is to the effect that the appellant has suffered 90% disability to the right upper limb. Though, PW2-Doctor had assessed the disability to the extent of 90%, the Tribunal has assessed only 7.5% without assigning any valid reason. When the Doctor had deposed that the appellant has lost the sensation in his right hand and assessed 90% disability and it is supported by the Disability Certificate, rejecting of the same is not just and proper. Therefore, the disability assessed by the Tribunal at 7.5% is without appreciation of material evidence available on record.
7. The appellant was aged about 23 years at the time of accident and was working as a Painter and due to accidental injuries he has lost his vital organ of the body and deprived of his income. Considering all these aspects, I hold that the disability is to be re-assessed notionally at 60%. Further, though the appellant claims his income at Rs.12,000/- per month, in the absence of proof, as the accident is of the year 2014 considering the price index and cost of living, his income re-
assessed at Rs.9,000/- per month. Accordingly, the appellant is entitled to the compensation towards loss of future income due to disability as under:
Rs.9,000/- x 12 x 18 x 60% =11,66,400/-.
8. Accordingly Rs.11,66,400/- is awarded against Rs.1,21,500/- awarded by the Tribunal. Further, the compensation awarded by the Tribunal towards pain and suffering and loss of income during laid up period is on the lower side, hence I award Rs.1,00,000/- towards pain and sufferings and Rs.54,000/- towards loss of income during laid up period. However, a sum of Rs.1,57,532/- awarded towards Medical Expenses, Rs.25,000/- awarded towards Conveyance, Food and Attendant Charges and Rs.40,000/- towards loss Amenities by the Tribunal is just and proper and does not call for interference.
In all, a sum of Rs.15,42,932/- is awarded as against Rs.4,26,532/- awarded by the Tribunal. There is enhancement of Rs11,16,400/- with interest at 6% per annum from the date of petition till realization.
Out of enhanced amount 75% with interest is to be invested in the name of the appellant in any Nationalized or Scheduled Bank for period of five years renewable for another five years, with liberty for him to withdraw periodical interest accrued on it.
The remaining 25% with interest shall be released in favour of the appellant, immediately, on deposit by the Insurer.
Sd/- JUDGE Sbs*