IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THIS THE 10th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.10971/2010 (MV) BETWEEN :
Ragavendra Achary Aged about 32 years S/o late Narayana Achary R/o Kotikuru, Manoor Village, Udupi Taluk.
(By Sri K.Prasanna Shetty, Advocate) AND :
1. Sripathi Prabhu Aged about 45 years S/o Sadananda Prabhu R/at Gerukatte, Karnadu, Mulky, Mangalore.
2. The Oriental Insurance Co. Ltd., Branch Office, Beauty Plaza, Balmatta Road, Hampanakatta, Mangalore.
… Appellant … Respondents (By Sri R.Rajagopalan, Advocate for R2; R1-Notice dispensed with vide Court order dated 25.11.2013) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 08.04.2010 passed in MVC No.622/2007 on the file of the Senior Civil Judge, Additional MACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of Compensation.
This MFA coming on for admission this day, the Court delivered the following:-
J U D G M E N T The present appeal has been filed against the judgment and award dated 8.4.2010, passed by the Additional MACT, Kundapura, in MVC.No.622/2007.
2. Though the matter is listed for admission, with the consent of both parties, it is heard finally.
3. Brief facts of the case are that on 3.2.2007, at about 6.15 p.m., when Raghavendra Achary, the claimant-appellant herein was proceeding from Kota towards Saligrama on his motorcycle bearing Regn.No.KA-20-Q-2918, and when he reached near Chitrapady School of Chitrapady Village, Udupi Taluk on NH-17, a lorry bearing Regn.No.CTX-9125 came in a rash and negligent manner and dashed against the motor cycle of the claimant-Raghavendra, as a result of which, he sustained grievous injuries. Immediately thereafter, he was shifted to KMC Hospital, Manipal, wherein he was treated as inpatient from 3.2.2007 to 19.2.2007 and he spent huge amount for the purpose of treatment and other charges. He filed a claim petition before the Tribunal seeking compensation of Rs.10,88,000/- contending that due to accidental injuries he could not attend to his work and has sustained permanent disability.
4. In pursuance of the notice issued by the Tribunal, respondent No.1-owner of the vehicle remained exparte, whereas the Insurance Company filed its written statement denying the contents of the claim petition contending that the claimant himself was rash and negligent at the time of accident and hence the Insurance Company is not liable to pay any compensation. If at all the Insurance Company is liable to pay compensation, it is restricted to terms and conditions of the policy. On these grounds, it prayed for dismissal of the claim petition.
5. On the basis of the above pleadings, the Tribunal after framing necessary issues and after hearing the parties to the lis, has awarded total compensation of Rs.1,86,840/- to the claimant with interest at 6% per annum from the date of petition till realization. Challenging the said award, the claimant is before this Court in the present appeal seeking enhancement of the compensation awarded by the Tribunal.
6. Learned counsel appearing on behalf of the appellant-claimant has contended that though the claimant has sustained fracture of left scapula, left brachial plexus injury and fracture of superior pubic ramus and the doctor has opined that the claimant has sustained the permanent disability to the extent of 20%, the compensation awarded by the Tribunal under various heads is on the lower side. The income of the claimant which has been taken by the Tribunal is also on the lower side. On these grounds, he prayed for enhancement of the compensation awarded by the Tribunal under various heads.
7. Per contra, the learned counsel appearing for the respondent-Insurance Company by substantiating the impugned award, submitted that the Tribunal on considering the injuries sustained by the claimant and other aspects, has awarded just compensation and therefore no interference is called for by this Court and hence, he prayed for dismissal of the appeal.
8. It is the specific contention of the learned counsel for the appellant-claimant that the claimant has examined himself as PW.1, and also got examined the doctor who treated him as PW.2 and has issued disability certificate as per Ex.P62. As per the said disability certificate, the claimant has sustained permanent disability to the extent of 27% to his left upper limb and 14% to the whole body. As could be seen from the impugned award, the Tribunal has accepted the said disability and while considering the income of the claimant, it has taken the notional income of Rs.3,000/- per month and after applying the proper multiplier of ‘16’ it has awarded Rs.80,640/- towards loss of future income due to disability. Though the said method adopted by the Tribunal is justifiable, however, taking the year of the accident, the income which was prevailing at the relevant period, the Tribunal ought to have taken the notional income of Rs.4,000/- and awarded compensation of Rs.1,07,520/- towards the loss of future income due to disability, instead of Rs.80,640/-.
9. After taking into consideration the injuries sustained by the claimant as mentioned in Exs.P4 and P62 and under the facts and circumstances of the present case, on reassessment by this Court, the compensation
The amount of Rs.52,000/- towards medical expenses awarded by the Tribunal is left undisturbed. Thus, in all the claimant is entitled to total compensation of Rs.2,65,520/-. Since the Tribunal has already awarded compensation of Rs.1,86,840/-, after deducting the same, the appellant-claimant is entitled to an additional amount of Rs.78,680/- with interest at 6% per annum.
Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent as indicated above.
The Insurance Company is directed to deposit the additional amount of compensation with interest thereon within six weeks from the date of receipt of a copy of this order, before the Tribunal.
Registry to draw the decree accordingly.
Sd/- JUDGE *ck/-