IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.3749 OF 2014 (MV) BETWEEN OBALESH S/O. PRAKASH, AGE 27 YEARS, R/O. MADAKARI NAGARA, INJANAHATTI, CHALLAKERE, CHITRADURGA DISTRICT – 577 522.
(BY SRI.MAHESH R UPPIN, ADVOCATE) AND 1. NAGESHWARA RAO S/O.BURRAIAH, AGE:MAJOR, DRIVER OF APE AUTO BEARING REG. NO.KA-17-B-3744, R/O. ANJANEYA BADAVANE, DAVANAGERE – 577 001.
2. ANNAPPA SWAMY, S/O. LATE DATTANNA, MAJOR, OWNER OF APE AUTO BEARING REG. NO.KA-17-B-3744, DOOR NO. 428, ... APPELLANT SHANKAR VIHAR BADAVANE, BEHIND TELEPHONE OFFICE, DAVANAGERE – 577 001.
3. THE MANAGER, IFFCO TOKIO GENERAL INSURANCE CO. LTD., SUDEV PLAZA, 3RD FLOOR, OPP.LAKSHMI TEMPLE, DAJIBEN PET, HUBLI – 580 029.
... RESPONDENTS (BY SRI.B PRADEEP, ADVOCATE FOR R3; NOTICE TO R1 AND R2 DISPENSED WITH VIDE ORDER DATED 09.01.2017) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.10.2013 PASSED IN MVC NO.398/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, MACT-IV, DAVANAGERE, 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 on 23.10.2013 in M.V.C.No.398/2012 passed by the Principal Senior Civil Judge and Member, MACT-IV Davanagere.
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 injuries sustained by the claimant in a road traffic accident occurred on 18.01.2012 due to rash and negligent driving of the Autorickshaw bearing registration No.KA- 17-B-3744 by its driver 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-4, the claimant has sustained following injuries:-
Communited fracture of mid 1/3rd of shaft of right femur, lateral displacement of patella.
The injuries sustained by the claimant are also evident from discharge summary Ex.P-6, case sheet Ex.P-62- 63, X-rays Exs.P-61 and supported by oral evidence of the claimant and doctor, who were examined as PWs-1 and 2 respectively. PW-2, doctor in his evidence has stated that the claimant has suffered disability of 30% to 35% to the whole body.
7. Considering the nature of injuries by the claimant, a sum of Rs.5,000/- awarded by the Tribunal towards ‘pain and suffering’ is on the lower side and it is deserved to be enhanced by another Rs.35,000/- and I award Rs.40,000/- under this head.
8. As Rs.40,000/- 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 28 days in Bapuji Hospital, Davanagere. Considering the duration of treatment a sum of Rs. Rs.16,000/- is awarded towards ‘incidental expenses’ such as conveyance, nourishment and attendant charges as against Rs.6,000/- awarded by the Tribunal.
10. The claimant claims to be working as a hamali and earning a sum of Rs.6,500/- per month, but the same is not established by producing any documents. Admittedly the accident is of the year 2012. This Court assessed the income, even in a case where it has not been proved by considering the price index, cost of living and life style etc., at Rs. 7,000/-
p.m. as against Rs.4,500/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 3 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 nature of injuries sustained by the claimant, 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.20,000/- is awarded towards ‘loss of amenities’ 12. The claimant is aged about 25 years at the time of accident, and the multiplier applicable to his age group is 17. His income is assessed at Rs.7,000/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 30% to 35%. But he has not assessed the disability caused to the whole body, So the Tribunal has taken disability of 10% to the whole body. Therefore, the ‘loss of future income’ works out to Rs.1,42,800/- (7000 x 12 x 17 x 10/100) and it is awarded as against Rs.50,000/- awarded by the Tribunal.
13. Considering the nature of injuries, another sum of Rs.5,000/- is awarded towards ‘future medical expenses’ in addition to Rs. 5,000/- awarded by the Tribunal.
14. Thus, the claimant is entitled for the following compensation:-
HEADS Rs.
Pain and sufferings 40,000-00 Medical Expenses 40,000-00 Incidental expenses 16,000-00 Loss of income during laid up period 21,000-00 Loss of amenities 20,000-00 Loss of future 1,42,800-00
15. 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.1,74,800/- with interest at 6% p.a. from the date of claim petition till the date of realization.
16. 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.
No order as to costs.
Sd/-
ACTING CHIEF JUSTICE HR