IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A. No.2810/2014 c/w M.F.A. No.3103/2015 IN M.F.A. No.2810/2014 BETWEEN:
PASCAL D’SOUZA S/O. CALIST D’SOUZA, AGED ABOUT 59 YEARS, R/AT 5TH BLOCK KRISHNAPURA, KATIPALLA – 575 030, MANGALORE D.K. ... APPELLANT (BY SRI K.M. MANOHAR, ADVOCATE FOR SRI D. KRISHNA MOORTHY, ADVOCATE) AND:
1. DEERAJ S/O. RATNAKARA NAIKA, AGED ABOUT 31 YEARS, R/AT LALITH LAKSHMI HOUSE, BAJAL KATTAPUNI, BAJALPADPU, JALLIGUDDE, MANGALORE – 575 007.
2. THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE AT CENTURY BUILDING, 2ND FLOOR, GHS ROAD, MANGALORE – 575 001, REP/BY ITS MANAGER. ... RESPONDENTS (BY SRI MUNIRAJU, ADVOCATE FOR R. JAI PRAKASH, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V/O. DATED 30/01/2015) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.01.2014 PASSED IN MVC NO.730/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALORE, D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. No.3103/2015 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., DIVN. OFFICE, CENTURY BUILDING, II FLOOR, GHS ROAD, MANGALORE, REP. BY NEW INDIA ASSURANCE CO. LTD., T.P. APPEAL HUB M.G. ROAD, BANGALORE, REP. BY ITS MANAGER. ... APPELLANT (BY SRI MUNIRAJU, ADVOCATE FOR SRI R. JAIPRAKASH, ADVOCATE) AND:
1. DHEERAJ S/O. RATHNAKARA NAIKA AGED ABOUT 33 YEARS, R/AT LALITHA LAKSHMI HOUSE, BAJAL KATTAPUNI, BAJALPADPU, JALLI GUDDA, MANGALORE – 575 001.
2. MR. PASCAL D’SOUZA S/O. CALIST D’SOUZA, AGED ABOUT 60 YEARS, R/AT 5TH BLOCK, KRISHNAPURA, KATTIPADA MANGALORE – 575 001. ... RESPONDENTS (BY SRI K.M. MANOHAR, ADVOCATE FOR SRI D. KRISHNAMOORTHY, ADVOCATE FOR R-2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.01.2014 PASSED IN MVC NO.730/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALORE, D.K., AWARDING COMPENSATION OF RS.2,65,101/- WITH INTEREST @ 6% P.A. ON Rs.70,701/- FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of both the parties, these matters are taken up for final disposal.
2. The brief facts of the case regarding the accident is that on 24.04.2012 at 3.50 p.m. when the petitioner was proceeding along with other inmates, in a Omni Car bearing Reg.No.KA-19Z-3468 from Neerumarga side towards Kishnapura side as a passenger and the said vehicle reached to a place near Ullas Wines Shop, Nanthoor Circle, Nanthoor, Mangalore on public road, at that time, a bus bearing Registration No.KA 19-D 52 came from Padavu junction side in a rash and negligent manner and dashed against the vehicle in which the claimants were traveling. The petitioner sustained grievous injuries due to the accident. Immediately he has been shifted to A.J. Hospital, Mangalore and taken treatment as inpatient from 24.04.2012 to 07.05.2012 and spent an amount of Rs.75,000/- towards medical expenses, further he needs a sum of Rs.25,000/- for future medical treatment. As per wound certificate he has sustained the following injuries.
1. Two skin deep lacerated wounds, measuring 2cm X 02 cm each over left cheek.
2. Diffused swelling and tenderness over right Shoulder joint with underlying full thickness Tear (supraspinatus muscle tear) of rotator Cuff (ultra sound of right shoulder and right Shoulder arthroscopy findings.
3. The learned counsel for the claimant submit that the compensation granted is unreasonable and the Tribunal has not assessed the disability of the injured correctly. He further submits that the Tribunal has not granted compensation towards loss of amenities and future medical expenses.
4. The learned counsel for the respondent- Insurance company submits that the compensation granted is exorbitant and deserves to be decreased and there is discrepancy in calculating percentage of disability in respect of total body disability. The learned Member of the Tribunal though gave a correct finding but erred in granting higher compensation.
5. I have gone through the judgment and award passed by the Tribunal. The disability considered by the learned Member of the Tribunal is 17% as total body disability. For reckoning loss of future income as against the claim of monthly income of Rs.30,000/-, it is considered as Rs.20,000/- p.m. In this connection, the petitioner said to be working as Maintenance Operator. Thus the percentage of disability ought to have been taken by the Tribunal at reasonably and the disability taken at 17% is on the higher side. In this connection, I am of the opinion, that the reasonable disability is 6% instead of 17%. In the circumstances, the loss of future income is Rs.1,29,600/- (20000x6% = Rs.1200x12x9). In addition to this, he is entitled for Rs.30,000/- towards pain and suffering, Rs.13,900/- towards attendant, food extra nourishment and conveyance charges, Rs.28,638/- towards loss of income during treatment period and after treatment, Rs.5163/- towards medical expenses, Rs.10,000/- towards future medical expenses and Rs.15,000/- towards loss of amenities. In all the claimant is entitled for total compensation of Rs.2,32,301/- as against Rs.2,65,101/- awarded by the Tribunal with 6% interest from the date of petition till the date of realization. Accordingly, MFA No.2810/2014 filed by the claimant is rejected. MFA No.3103/2015 filed by the Insurance Company is partly allowed in terms stated above and the impugned judgment and award is modified accordingly.
Insurance Company is directed to deposit the compensation amount with interest within four weeks from the date of receipt of a copy of this order.
Amount deposited by the Insurance Company shall be transmitted to the concerned Tribunal.
Sd/- JUDGE nm