IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2592 OF 2017 [MV] BETWEEN RAHIMATH @ RAYANA, NOW AGED 36 YEARS, W/O. MOHAMMAD HANEEF, R/O.101-A, ALAKE HOUSE, THANNIRUPANTHA VILLAGE, BIKRIMARU ALAMMA KALLERI POST, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT-574 214. ... APPELLANT [BY SRI.VISHWANATHA POOJARY K., ADVOCATE] AND 1. SILVESTER D’MELLO, NOW AGED 41 YEARS, SON OF F.J. D’MELLO, R/O. CHATRAKERI THIRTHAHALLI, THIRTHAHALLI VILLAGE AND POST, SHIVAMOGGA DISTRICT-577 201.
2. THE MANAGER, THE IFFCO TOKIO GENERAL INSURANCE CO. LTD., 3RD FLOOR, LALBAGH TOWER, BALLALBAGH, M.G. ROAD, MANGALORE, DAKSHINA KANNAD DISTRICT-575 001.
3. MOHAMMAD HANEEF, 37 YEARS, S/O. SULAIMAN ALIKE HOUSE, THANNIRUPANTHA VILLAGE, BELTHANGADY TALUK, DAKSHINA KANNDA DISTRICT-574 214.
4. RAMANANDA NAYAK, MAJOR, S/O. LAXMI NARAYANA NAIK, R/O. H.NO.2-60, ARALA POST & VILLAGE, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT-574 211.
5. THE MANAGER, UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, PRABHU BUILDING, MAIN ROAD, PUTTUR, PUTTUR TALUK, DAKSHINA KANNADA DISTRICT-574 201. ... RESPONDENTS [BY SRI.S.V. HEGDE MULKHAND, ADVOCATE FOR R2.
NOTICE TO R1, R3, R4 AND R5 ARE DISPENSED WITH VIDE COURT ORDER DATED 20.04.2018] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.12.2016 PASSED IN MVC NO.502/2016 ON THE FILE OF THE V ADDITIONAL DISTRICT & SESSIONS JUDGE AND MEMBER, ADDITIONAL MACT., D.K., MANGALURU, SITTING AT PUTTUR, D.K., 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:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal at the consent of both the learned counsel.
2. The injured/claimant has filed this appeal, seeking enhancement of compensation awarded by the Tribunal for the injuries sustained by her in a road traffic accident which occurred on 20.10.2015.
3. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2/Insurance Company.
4. The facts in brief are that;
On 20.10.2015, the appellant was proceeding on a motorcycle bearing reg. No.KA-21/J-9152 as a pillion rider from Uppinangady towards Alake and at about 3.30 p.m. when she reached near a place called Neejigaru, Elanthila village in Belthangady Taluk, D.K., at that time, a car bearing reg. No.KA-14/P-3957 driven by its driver in a rash and negligent manner came from the opposite direction and dashed against the motorcycle on which the appellant was traveling. Due to the said impact, she was thrown out from the motorcycle and sustained severe injuries.
It is the case of the appellant that she was aged about 34 years and worked as a coolie under one B.M.Usman Alake and earning more than Rs.9,000/- p.m. and also rolling beedi under one Abbas Alake, Ganesh Beedi Contractor and earning more than Rs.4,000/- p.m. and on account of the accidental injuries, she suffered permanent disability and is not in a position to work as before.
The Tribunal has awarded a total compensation of Rs.1,34,800/- with interest at 7% p.a. from the date of petition till deposit.
5. The learned counsel for the appellant would contend that the Tribunal has taken the income of the appellant at Rs.8,000/- p.m., which is on a lower side. He further submits that there is 30% restriction in the flexion movement in the right hip joint and the permanent disability in the affected limb is 10% and therefore, he contends that the total disability taken by the Tribunal at 5% is on a lower side. He further submits that the total compensation awarded is not commensurate with the injuries sustained by the appellant and accordingly, he seeks to enhance the same by modifying the Judgment and Award passed by the Tribunal.
Per contra, learned counsel appearing for respondent No.2 vehemently contended that what has been awarded by the Tribunal is just and reasonable and the same is based on the evidence and material on record and no interference is called for. Accordingly, he seeks to dismiss the appeal.
6. The fact that the appellant sustained injuries in a road traffic accident owing to the rash and negligent driving by the driver of the offending vehicle in question is not in dispute. The said vehicle was insured with respondent No.2. As per Ex.P6-wound certificate, the appellant has sustained the following injuries:
1) Severe pain and tenderness in right hip joint.
2) Multiple abrasions on the right foot.
3) X-ray of pelvis with both hips (AP) shows fracture of ischial Rami (R) hemi pelvis. Fracture of neck of right femur.
7. The appellant was treated as an in-patient in the hospital from 20.10.2015 to 22.10.2015. Further, as per the disability certificate marked at Ex.P10, the appellant was having 10% permanent disability in the right lower limb. The Tribunal has assessed the permanent physical disability to the whole body to an extent of 5% after considering the evidence of P.W.1 and also the documents Exs.P10 and 11. The same is just and proper. The date of birth of the appellant is 01.06.1981 and therefore, the appellant was aged between 34-35 years at the time of the accident. The proper multiplier applicable to the said age group is ‘16’. Taking Rs.9,000/-
p.m. as the notional income of the appellant, the total compensation for which she is entitled towards loss of income due to permanent disability is Rs.86,400/- [Rs.9,000 x 5% x 12 x 16] as against Rs.76,800/- awarded by the Tribunal.
8. Considering the nature of injury, disability suffered by the appellant, a sum of Rs.40,000/- is awarded as against Rs.30,000/- awarded by the Tribunal towards pain and agony. A sum of Rs.27,000/- is awarded towards loss of earning during laid-up period as against Rs.16,000/-. A sum of Rs.15,000/- is awarded towards medical, nourishment food and other expenses as against Rs.12,000/-. The Tribunal has not awarded any compensation towards attendant and conveyance charges. A sum of Rs.10,000/- is awarded towards attendant and conveyance charges. The Tribunal has not awarded any compensation under the head loss of amenities. A sum of Rs.20,000/- is awarded towards loss of amenities. In all the appellant is entitled for a total compensation of Rs.1,98,400/- as against Rs.1,34,800/- awarded by the Tribunal. Hence, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 30.12.2016 passed in MVC No.502/2016 by the V Additional District and Sessions Judge and Member, Additional MACT., D.K., Mangaluru, sitting at Puttur, D.K. is hereby modified.
The appellant is entitled for a total compensation of Rs.1,98,400/- as against Rs.1,34,800/- awarded by the Tribunal.
The interest applicable to the enhancement amount of Rs.63,600/- [Rs.1,98,400 – 1,34,800] is 6% p.a.
Sd/- JUDGE.
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