IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.9160 OF 2011 [MV] BETWEEN Ratnakar M E s/o Eshwarappa G M Age 43 years r/o D No.781, B-14 Amogha Siddha Krupa 3rd Cross, `A’ Block Lenin Nagar Davanagere-577004. ... Appellant [By Sri Mahesh R Uppin, Advocate] AND 1. Rudra Gowda @ Rudresh Gowda s/o Kuber Gowda @ Kuberappa Bennur, Age:Major, driver of Maruthi Omni bearing Regn.
No.KA-17/M8859 R/o Guddada Vevinahalli Harihar Taluk – 577001.
2. A Fayaz, s/o Chaman Sab Age:Major, owner of Maruthi Omni bearing Regn. No.KA-17/M8859 r/o Medagaragalli, Indiranagar Malebennur village, Harihar Taluk – 577001.
3. The Divisional Manager National Insurance Co. Ltd., Divisional Office, Melgiri Plaza, Dental College Road Davanagere-577004. ... Respondents [By Smt.Manjula N Thejaswi, Advocate for R3, R1 & R2 service of notice d/w v/c/o dtd.12.11.2013) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 9.12.2010 passed in MVC No.888/2009 on the file of the II Additional Senior Civil Judge & VI Additional MACT, Davanagere, partly allowing the claim petition for compensation and enhancement of compensation.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.888/2009 on the file of the II Additional Senior Civil Judge & VI Additional MACT, Davanagere, wherein a total compensation of Rs.2,96,660/- was awarded to the claimant for the injuries sustained by him in a road traffic accident which occurred on 5.6.2009.
2. I have heard the learned counsel appearing for the appellant and learned counsel appearing for respondent No.3.
3. The case of the claimant is that on 5.6.2009 at about 5.30 a.m. he was traveling along with his friends in a van bearing Regn. No.KA-17/M-8859 to go to Malakheda village for getting Ayurvedic treatment to his friend Chandrashekharappa and when they reached near Sri Ramanagar on Gangavathi – Sindanuru road, the said vehicle, which was driven by one of his friends, met with an accident and due to the same, he sustained multiple fractures and other grievous injuries. He was shifted to Government Hospital, Gangavati, for taking first aid treatment and later he was shifted to Suchetana Hospital, Davanagere, wherein he took treatment as an inpatient from 6.6.2009 to 12.6.2009. It is the further case of the claimant that he was hale and healthy prior to the accident and he was earning a sum of Rs.15,000/- by doing business and he was also having income of Rs.1,50,000/- from agricultural activity and on account of the accident, he suffered permanent disability and he has lost his income etc.
4. Claim petition was filed seeking a total compensation of Rs.10,50,000/-. Before the Tribunal, on behalf of the claimant, two witnesses were examined and Exs.P1 to P168 were marked. The claim petition was opposed by the Insurance Company. On behalf of respondents, Ex.R1 – insurance policy was marked.
5. The Tribunal after considering the oral and documentary evidence, awarded a total compensation of Rs.2,96,660/- under the following heads:
4. Loss of future income - Rs.1,72,360/-
5. Loss of amenities of life & discomfort - Rs. 15,000/-
6. Future medical expenses - Rs. 10,000/-
Total Rs.2,96,660/-
6. According to the learned counsel for the appellant, the Tribunal was not justified in taking the income of only Rs.3,900/- p.m. and the disability at 28.33% to the whole body and therefore the compensation awarded under the head loss of future income is on the lower side. Further, it is also his contention that the total compensation awarded by the Tribunal is not commensurate with the injuries sustained by him. Accordingly, the appellant/claimant has sought to enhance the compensation awarded by the Tribunal.
7. Learned counsel for respondent No.3 would otherwise vehemently contend that the Tribunal has awarded a just and reasonable compensation based on the oral and documentary evidence on record and the same does not call for any interference. Accordingly, she seeks to dismiss the appeal.
8. The accident in question involving the Omni van bearing Regn. No.KA-17/M-8859, which was insured with respondent No.3/Insurance Company is not in dispute. It is the case of the appellant that he was earning a sum of Rs.15,000/- p.a. by doing business and also he was having income of Rs.1,50,000/- per annum from agricultural activity and therefore the income taken by the Tribunal is on the lower side. To substantiate the income of the appellant, apart from the self serving testimony, there are no other cogent evidence adduced before the Tribunal. The Tribunal has taken the notional income at Rs.3,900/- p.m. However, considering the fact that the accident is of the year 2009 and in the facts and circumstances of the case, I am of the view that the income of the appellant can be taken as Rs.5,000/- p.m.
9. The appellant has sustained fracture of left tronchetic femur, fracture of both bones of left fore arm, fracture of 6,7,8,9 and 10th ribs of right side, fracture of 8, 9th ribs of left side and fracture of cervicle spine C2 with C3. PW2 has issued Ex.P10 – disability certificate stating that there is a permanent disability of 35% to 40% of left lower limb, 30% to 35% of left upper limb, 15% to 20% of chest and 5% to 10% of cervicle spine. In the cross- examination, he has deposed that it is not correct to say that the percentage of disability will be lessened at 50%. However he has stated that the disability will be reduced. PW2 is the Orthopedic Surgeon. However, he is not the doctor who gave treatment to the appellant and it is only on 1.9.2010, the claimant came for assessment of physical disability. He has also deposed that the x-ray of left hip, left hand, chest and cervicle spine taken at Apoorva Hospital, Davangere on 1.9.2010 shows malunion of left femur with implants in situ, non union of left ulna with implants in situ, malunion of ribs and cervical spine. The Tribunal has taken the disability pertaining to the whole body at 28.33% out of the total minimum disability of 80% assessed by PW2. However, according to the doctor, the maximum disability is at 100%. Considering the same, I am of the view that the permanent disability to the whole body could be taken at 33% as against 28.33% assessed by the Tribunal.
10. Based on the evidence on record, the Tribunal has considered the age of the appellant to be 48 years and adopted 13 as the multiplier. The multiplier adopted by the Tribunal is just and proper and therefore the appellant is entitled for a total compensation of Rs.2,57,400/- (5,000 X 12 X 13 X 33/100) as against Rs.1,72,360/- towards loss of future income.
11. The Tribunal has awarded a sum of Rs.25,000/- towards injury and pain and sufferings. Considering the nature of injuries suffered by the claimant, the said compensation is on the lower side. Accordingly, a sum of Rs.50,000/- is awarded towards injury and pain and sufferings.
12. The amount awarded under the head loss of income during the laid up period and rest is enhanced from Rs.14,600/- to Rs.20,000/-.
13. The compensation awarded under the head loss of amenities of life and discomfort is enhanced from Rs.15,000/- to Rs.25,000/-. The compensation awarded under the head medical expenses and nourishment and future medical expenses are just and reasonable. Hence, the appellant is entitled for a total compensation of Rs.4,22,400/- as against Rs.2,96,660/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER Appeal is allowed in part.
The judgment and award dated 9.12.2010 passed in MVC No.888/2009 on the file of the II Additional Senior Civil Judge & VI Additional MACT, Davanagere, is hereby modified.
Appellant is entitled for a total compensation of Rs.4,22,400/- as against Rs.2,96,660/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till realization.
Respondent No.3 shall deposit the compensation awarded herein within a period of four weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Bkm.