IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A.NO.6199/2010(MVC) BETWEEN NAGARAJ S/O SIDDAPPA AGED ABOUT 34 YEARS AGRICULTURIST R/O KAMALAPURA VILLAGE HARIHAR TALUK, DAVANAGERE DISTRICT.
... APPELLANT (By SRI N K SIDDESWARA, ADVOCATE) AND 1. S SHEKHARAPPA S/O SANNAVEERAPPA OWNER OF VEHICLE BEARING NO.KA17/V 0263 R/O DODDERI VILALGE HONNALI TALUK DAVANAGERE DISTRICT.
2. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., NO.107, I FLOOR, CRYSTAL ARC., BALAMATTA RAOD, MANGALORE 575 001 REPRESENTED BY ITS BRANCH MANAGER.
3. BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., HUBLI BRANCH,VIVEKANANDA CORNER, DESAI CROSS, CLUB ROAD, HUBLI CITY.
4. M N THIMMANAGOWDA, S/O M V HANUMA GOWDA, AGED ABOUT 36 YEARS, BAJAJ MOTOR CYCLE RIDER BEARING REG. NO.KA17/V 0263, R/O HINDASAGHATTA VILLAGE, HARIHAR TALUK, DAVANAGERE DISTRICT.
... RESPONDENTS (By SRI E I SANMATHI, ADVOCATE, FOR R2 & R3; NOTICE TO R1 AND R4 DISPENSED WITH) MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.10.2009 PASSED IN MVC NO.192/06 ON THE FILE OF THE CIVIL JUDGE (SR.DN) AND MACT, HARIHAR, 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 This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 06.04.2006 due to rash and negligent driving of the offending motor bike bearing registration No.KA-17-H-1015 by its rider and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?”
5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
6. As per wound certificate Ex.P-7, the claimant had suffered fracture at right tibia with vascular insufficiency of Popliteal Artery (R).
The injuries sustained and treatment underwent by the claimant were also evident from disability certificate Ex.P-9, discharge summary Ex.P-10, X-rays Exs.P-182(2) and supported by oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2, Dr.Anil.S.Nelivigi in his evidence has stated that the claimant has suffered disability of 40% to the affected area.
7. Considering the nature of injuries, a sum of Rs.50,000/- is awarded towards ‘pain and suffering’ as against Rs.30,000/- awarded by the Tribunal.
8. As Rs.1,25,100/- awarded by the Tribunal towards ‘medical expenses’ is based on the medical bills produced by the claimant, there is no scope for enhancement under this head.
9. The claimant was treated as inpatient for a period of 77 days on three occasions in City Central Hospital, Davanagere. Considering the duration of treatment, Rs.41,000/- is awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges.
10. The claimant claims to have been earning Rs.8,000/- per month, by doing agriculture, but the same is not established by producing any documents. In the absence of proof of avocation and income, considering his age as 30 years, year of accident as 2006 and his avocation as an agriculturist, his income could be assessed at Rs.3,500/- per month as against Rs.3,000/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 06 months and therefore a sum of Rs.21,000/- is awarded towards ‘loss of income during laid up period’ as against Rs.9,000/- awarded by the Tribunal.
11. Considering the 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.26,000/- is awarded towards ‘loss of amenities’ as against Rs.10,000/- awarded by the Tribunal.
12. The claimant is aged about 30 years at the time of accident, and multiplier applicable to his age group is ‘17’. His income is assessed at Rs.4,000/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 40% to the affected area and but has not stated as to the disability caused to the whole body. Claimant was kept present in the court, even today he cannot walk properly and he has got limping. Therefore, considering the nature of injuries sustained by the claimant, evidence of Doctor and observing the condition of the claimant who was kept present in the court, justice would be met if disability caused to the whole body is taken at 30%. So, ‘loss of future income’ works out to Rs.2,14,200/- (3500 x 12 x 17 x 30/100) and it is awarded as against Rs.91,800/- awarded by the Tribunal.
13. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
Pain and sufferings 50,000 Medical Expenses 1,25,100 Incidental expenses 41,000 Loss of income during laid up period 21,000 Loss of amenities 26,000 Loss of future income 2,14,200 TOTAL 4,77,300
14. Accordingly, the appeal is allowed-in-part.
The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.2,00,400/- rounded of to Rs.2,00,000/- with interest at 6% p.a. from the date of claim petition till the date of realization.
15. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 50% of the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 03 years and with a right of option to withdraw interest periodically. Remaining 50% amount with proportionate interest is ordered to be released in favour of the claimant.
16. The Tribunal while releasing 50% of the amount is also directed to issue the fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is directed to release the fixed deposit amount without insisting for any further order from the Tribunal.
17. Release of amount and issuance of Fixed Deposit slip shall be done on the same day.
18. The Tribunal is directed to transfer the remaining amount into the SB Account of the claimant by effecting RTGS if possible.
No order as to costs.
SD/- JUDGE DKB