IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A NO.4777 OF 2017 (MV) C/w M.F.A NO.3442 OF 2017 (MV) IN M.F.A NO.4777 OF 2017 (MV) BETWEEN:
Ninganna S/o Puttamadappa, Aged about 47 years, R/at Chinaumballi Village, Nanjangud Taluk, Mysuru District – 570038.
… Appellant (By Sri.Sreenivasan M.Y., Advocate) AND 1. Rajesha S/o Madappa, Major, R/at No.19, Dandikere Village, Pillahally Post, G S Ashram, Mysuru – 570029.
2. Branch Manager, Cholamandalam M S General Insurance Co. Ltd., Door No.271, Ashraya Building, Lakshmivilas Road, Devaraja Mohalla, Mysuru – 570014.
… Respondents (By Sri.Raghu R, Advocate for R.1 and Sri.B.Pradeep, Advocate for R.2) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 17.01.2017 passed in MVC No.44/2015 on the file of the Senior Civil Judge and JMFC and Motor Accident Compensation Tribunal at Nanjangud, partly allowing the claim petition for compensation and seeking enhancement of compensation.
IN M.F.A NO.3442 OF 2017 (MV) BETWEEN:
Branch Manager, Cholamandalam M.S. Gen Ins Co., Ltd., Door No.271, Ashraya Building, Lakshmivilas Road, Devaraja Mohalla, Mysuru.
Rep by, The Manager, Cholamandalam MS General Insurance Co. Ltd., Golden Heights, 4th Floor, No.1/2, 59th C Cross, 4th M Block, Rajajinagar, Bengaluru – 560010.
… Appellant (By Sri.Pradeep B, Advocate) AND 1. Ninganna S/o Puttamadappa, Now aged about 47 years, R/at Chinaumballi Village, Nanjangud, Mysuru District – 571315.
2. Rajesha S/o Madappa, Major, R/at No.19, Dandikere Village, Pillahally Post, G.S. Ashram, Mysuru – 571105.
(By Sri.Raghu R, Advocate for R.2; Notice to R.1 – served) … Respondents This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 17.01.2017 passed in MVC No.44/2015 on the file of the Senior Civil Judge and JMFC and Motor Accident Compensation Tribunal at Nanjangud, awarding compensation of Rs.4,17,000/- with interest at the rate of 6% p.a. from the date of petition till its deposit.
These appeals coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though these two appeals are listed for admission, with the consent of learned counsel for both the parties, they are taken up for final disposal.
2. Both these appeals arise out of the same impugned judgment and award dated 17.01.2017 passed by the Senior Civil Judge and JMFC & MACT, Nanjangud (for short ‘the Tribunal’) in M.V.C.No.44/2015, wherein a sum of Rs.4,17,000/- together with interest at 6% p.a. from the date of petition till the date of deposit was awarded in favour of the claimant.
3. Being aggrieved by the same, M.F.A.No.4777/2017 has been preferred by the claimant for enhancement of compensation. M.F.A.No.3442/2017 has been preferred by the Insurance company for reduction of the compensation awarded by the Tribunal in the impugned judgment and award.
4. Both the counsels submit that the occurrence of accident as well as the coverage of the policy of the offending vehicle by the Insurance company are not in dispute.
5. The learned counsel for the claimant contended that the Tribunal committed an error in taking the notional income of the claimant as Rs.6,000/- per month instead of Rs.8,500/- per month as per the Lok Adalat guidelines. It is further contended that the Tribunal awarded inadequate compensation under the head ‘loss of amenities’ is on the lower side. It is also contended that the Tribunal has not awarded any compensation under the head of ‘loss of income during laid up period’. It is also submitted though the appellant has sustained 47.75% disability to the limb, but the Tribunal has taken 25% disability and he, therefore, prays for enhancement of compensation under the aforesaid heads.
6. The learned counsel for the Insurance company has contended that the Tribunal has committed an error in awarding excess compensation under the conventional heads and that the same needs to be modified by considering the material available on record. It is also contended that the Tribunal has erred in taking the disability as 25% to the entire body which is contrary to the material on record.
7. I have given my careful consideration to the rival submissions and perused the material on record.
8. As rightly contended by the learned counsel for Insurance Company, the Tribunal failed to consider and appreciate the evidence of Doctor and other material on record which indicate that the disability to the entire body is to be taken as 16%. Further, as per Lok Adalat guidelines which stipulate that in respect of an accident that occurred in the year 2014, the notional income should be taken as Rs.8,500/- per month. Taking the notional income as Rs.8,500/- per month, the appellant would be entitled to total sum of Rs.2,28,480/- (Rs.8,500/- x 12 x 14 x 16/100) towards ‘loss of future income’.
9. Having taken the notional income as Rs.8,500/- per month, the appellant would be entitled to a sum of Rs.17,000/- under the head ‘loss of income during laid up period’. Learned counsel for the Insurance company is also correct in contending that the amount awarded under the head ‘pain and suffering’ is very high and the same is reduced to an amount of Rs.50,000/-. Thus, the appellant is entitled to a sum of Rs.50,000/- under this head.
10. After reappreciating the entire materials on record, the compensation awarded by the Tribunal is reworked as hereunder:-
1 Pain and suffering Rs. 50,000/-
2 Medical Expenses Rs. 40,000/-
3 Loss of Future Earning (8,500/-x12x14x16/100) Rs.2,28,480/-
4 Loss of amenities Rs. 20,000/-
5 Future Medical Expenses Rs. 25,000/-
6 Loss of income during laid up period Rs. 17,000/-
Total Rs.3,80,480/-
11. Thus, in all, the appellant-claimant is entitled to total compensation of Rs.3,80,480/- instead of Rs.4,17,000/- as awarded by the Tribunal.
12. In view of the aforesaid discussion, I pass the following order:-
(i) MFA No.4777/2017 filed by the claimant is dismissed.
(ii) MFA No.3442/2017 filed by Insurance Company is partly allowed.
(iii) The impugned judgment and award dated 17.01.2017 passed by the Tribunal in MVC No.44/2015 is hereby modified.
(iii) The appellant-claimant is entitled to compensation of Rs.3,80,480/-, which shall carry interest at 6% p.a. from the date of claim petition till the date of deposit.
(iv) The amount in deposit in MFA No.3442/2017 shall be transferred to the Tribunal.
SD/- JUDGE NBM