IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.6842/2010(MV) BETWEEN:
NEELAPPA GOWDA @ NEELANA GOWDA @ GOWDARA NEELAPPA S/O BASAVANA GOWDA AGED ABOUT 56 YEARS R/O YELLAPURA VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT.
(BY SRI. MAHESH R UPPIN., ADVOCATE) AND:
1. S.M. PRASHANTHKUMAR S/O S.M. RAJASHEKHARAIAH MAJOR, DRIVER OF MOTOR CYCLE BEARING REG.NO.KA 17/U-8055, R/O C/O NO.240 8TH CROSS B BLOCK DEVARAJ URS LAYOUT DAVANAGERE.
2. C.V. PRADEEP S/O C.M. VEERABHADRAIAH OWNER OF MOTOR CYCLE BEARING REG.NO. KA 17/U-8055 R/O NO.240, 8TH CROSS ... APPELLANT ”B” BLOCK, DEVARAJ URS LAYOUT, DAVANAGERE.
3. THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, MELGIRI COMPLEX, DENTAL COLLEGE ROAD, DAVANAGERE.
... RESPONDENTS (BY SRI. R KOTHWAL, ADV FOR R1 & R2 SRI L SREEKANTA RAO & SMT.S VIDYA, ADV FOR R-3 ) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.12.2009 PASSED IN MVC NO.188/2009 ON THE FILE OF SENIOR CIVIL JUDGE & MACT-IX, HARAPANAHALLI, 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 This is a claimant’s appeal questioning the correctness and legality of the judgment and award dated 10.12.2009 passed by Senior Civil Judge & MACT – IX, Harapanahalli in MVC.No.188/2009 and has sought for enhancement of compensation.
2. I have heard the arguments of learned Advocates appearing for the parties and perused the records.
3. In a road traffic accident that occurred on 04.06.2008, appellant – claimant has filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 and sought for compensation of Rs.3,75,000/-. Tribunal, after considering the pleadings and evidence of the parties, has awarded a total compensation of Rs.1,27,000/- with interest @ 6% p.a. from the date of petition till date of realization under the following heads:
6 Loss of future income due to disability Total Rounded off to 75,600/-
1,26,600/-
1,27,000/-
4. There is no dispute with regard to the accident in question and issuance of policy. Hence, these aspects are not delved upon in this appeal as it would be repetition of facts.
5. Learned Advocate appearing for appellant – claimant contended that compensation awarded under all heads is abysmally on the lower side and Tribunal has not awarded any compensation towards ‘future medical expenses’. Hence, he prays for enhancement of compensation.
6. Per contra, learned Advocate appearing for respondents would contend that compensation awarded by the Tribunal is just and reasonable and prays for dismissal of the appeal.
7. Having heard the learned Advocates appearing for parties and on perusal of judgment and award passed by the Tribunal, it would indicate that claimant had sustained two grievous injuries and one simple injury namely, swelling and tenderness on left wrist, 5 x 3 cms bluish with fracture distal end of left radius, tenderness on left hip and left thigh with trochanteric fracture of left femur and abrasion on right arm. He was admitted to S.S.Institute of Medical Sciences and Research Centre, Davanagere. He was an inpatient for 12 days. Doctor – P.W.2 in his evidence has deposed that claimant sustained fracture of left femur and fracture of distal end of left radius. Tribunal, on account of injuries sustained by claimant, has awarded Rs.25,000/- towards ‘pain and suffering’. Taking into consideration that injuries sustained by the claimant are grievous in nature and considering the would certificate – Ex.P-4, this Court is of the considered view that claimant would be entitled to additional sum of Rs.25,000/- under the head ‘pain and suffering’ and accordingly, it is awarded.
8. After the accident, claimant was admitted to the hospital and took treatment for 12 days as an inpatient from 13.07.2008 to 20.08.2009. He would have spent considerable amount towards food, nourishment, conveyance apart from expending amount towards attendant charges also. Hence, claimant would be entitled to additional compensation of Rs.5,000/- towards ‘food, nourishment, conveyance and attendant charges’ and accordingly it is awarded.
9. Compensation awarded by the Tribunal towards ‘loss of amenities’ is abysmally on the lower side. Injuries sustained by the claimant as is evident from the wound certificate – Ex.P-4, disability certificate – Ex.P-6 when read along with the evidence of the Doctor – P.W.2, it would clearly indicate the disability sustained by the claimant was to the extent of 20% due to fracture of left femur and 30% disability in respect of distal end of left radius. As such, Tribunal has recorded a finding and rightly so that whole body disability is to the extent of 15% and accordingly, computed the loss of future earning. However, while awarding ‘loss of amenities’, a sum of Rs.3,000/- has been awarded. Though Tribunal has accepted that claimant is an agriculturist and is carrying on the agricultural activities, in the light of said finding and medical evidence available on record establishing that claimant had sustained whole body disability to the extent of 15%, said disability would definitely come in the way of claimant discharging his normal duties as an agriculturist and as such, this Court is of the considered view that additional sum of Rs.25,000/- deserves to be awarded under ‘loss of amenities’. Accordingly, it is awarded. Since, Tribunal has awarded a sum of Rs.3,000/-, same is to be deducted. Hence, claimant would be entitled to additional compensation of Rs.22,000/- towards ‘loss of amenities’.
Thus, in all, claimant is entitled to additional compensation of Rs.52,000/- under the following heads:
10. For the reasons aforestated, I proceed to pass the following:
JUDGMENT (1) Appeal is allowed in part.
(2) Judgment and award dated 10.12.2009 passed by Senior Civil Judge & MACT – IX, Harapanahalli in MVC No. 188/2009 is hereby modified and an additional compensation of Rs.52,000/- is awarded which shall carry interest @ 6% p.a. from date of petition till date of payment or deposit whichever is earlier.
(3) Entire enhanced amount with interest shall be kept in a fixed deposit in any nationalized Bank of claimant’s choice for a period of two (2) years and would be entitled to receive same with interest after two (2) years.
(4) Insurance company shall deposit the compensation amount with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
SD/- JUDGE *sp