IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.5022 OF 2016 [MV] BETWEEN SMT. SHANTHAMMA, W/O. EREGOWDA, AGED ABOUT 53 YEARS, RESIDENT OF, THAVANANDI VILLAGE, HOLEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-573 201.
PRESENTLY RESIDENT OF C/O. MOHAN, KATIHALLI KOPPALU, HASSAN DISTRICT-573 201. ... APPELLANT [BY SRI.CHETHAN B., ADVOCATE] AND 1. MADESHA, S/O. NANJEGOWDA, MAJOR, RESIDENT OF KARAGANAHALLI VILLAGE, THARANYA POST, HOLEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN-573 501.
2. THE MANAGER, UNIVERSAL SAMPO GENERAL INSURANCE CO. LTD., CRYSTAL PLAZA, OPPOSITE TO INFANTRY MAL, LINK ROAD ANDERI (WEST), MUMBAI-400 058.
REPRESENTED BY UNIVERSAL SAMPO GENERAL INSURANCE CO. LTD., BANGALURU-560 001. ... RESPONDENTS [BY SRI.H.N. KESHAVA PRASHANTH, ADVOCATE FOR R2.
R1-NOTICE DISPENSED WITH VIDE COURT ORDER DATED 03.04.2018] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.05.2016 PASSED IN MVC NO.2147/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, & MACT., HASSAN, 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 with the consent of both the learned counsel.
2. The injured/claimant has preferred this appeal, seeking enhancement of compensation awarded by the Tribunal in MVC No.2147/2011 on the file of the II Additional Senior Civil Judge and MACT., Hassan, whereby the Tribunal has awarded a total compensation of Rs.2,59,388/- with interest at the rate of 8% p.a.
3. I have heard the learned counsel on both the side.
4. The brief facts of the case are that on 21.11.2011 at about 9.30 a.m., the appellant was proceeding on a motorcycle bearing reg. No.KA-41/L-2670 as a pillion rider and at a place near Rukmini Canteen, Channapatna, Holenarasipura Road, Hassan, the rider of another motorcycle bearing reg. No.KA-13/W-4837 while riding the said motorcycle in a rash and negligent manner dashed against the motorcycle in which the appellant was traveling. On account of the same, she fell down and sustained injuries to her right shoulder and other parts of the body. Immediately she and the rider of the motorcycle were shifted to Mangala Hospital and she took treatment as in-patient from 21.11.2011 to 25.11.2011.
The claim petition was filed seeking a total compensation of Rs.10,00,000/- for the injuries sustained by the appellant. The Tribunal awarded a compensation of Rs.2,59,388/- with interest at 8% p.a. from the date of the petition till realization.
5. Seeking enhancement of compensation the learned counsel for the appellant would contend that the income taken by the Tribunal at Rs.4,000/- p.m. is on the lower side since the appellant was earning a sum of Rs.10,000/- p.m. by doing tailoring and agricultural work. He would submit that the compensation awarded under different heads are meagre and seeks to enhance the total compensation awarded by the Tribunal.
On the other hand, learned counsel appearing for respondent No.2/Insurance Company seeks to justify the Judgment and Award passed by the Tribunal and prays to dismiss the appeal.
6. The accident in question, involving the offending motorcycle bearing reg. No.KA-13/W-4837 and the said vehicle having been insured with respondent No.2 herein are not disputed.
7. According to the appellant, she was doing tailoring work and also agricultural work and earning a sum of Rs.10,000/- p.m. She has been examined as P.W.2 before the Tribunal. There are no other convincing evidence to hold that she was earning a sum of Rs.10,000/- p.m. However, in the facts and circumstances of the case and also considering the year of the accident, the notional income of the appellant can be taken at Rs.6,500/- p.m.
8. According to Ex.P13-wound certificate, the appellant has sustained the following injuries:
1) Fracture left humors.
2) Tenderness TL spine.
3) Tenderness left chest.
4) Tenderness left thigh.
5) Tenderness left hip.
She has taken treatment as an in-patient from 21.11.2011 to 25.11.2011. P.W.3-Orthopaedic Surgeon has assessed the functional disability suffered by the appellant at 30% to left upper limb. The Tribunal has assessed the total disability to the whole body at 10% which is just and proper. The appellant being aged about 48 years at the time of accident, the appropriate multiplier is ‘13’. Therefore, the appellant is entitled for a total compensation of Rs.1,01,400/- [Rs.6,500 x 10% x 12 x 13] towards loss of future income due to disability as against Rs.62,400/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs.16,000/- towards loss of income during treatment period. Since the notional income has been considered as Rs.6,500/- p.m. The loss of income during the treatment period is enhanced from Rs.16,000/- to Rs.26,000/-.
9. The Tribunal has awarded a sum of Rs.1,25,988/- towards medical expenses including attendant, conveyance, nourishing food and other incidental expenses and the same is enhanced from Rs.1,25,988/- to Rs.1,30,000/-. In view of the disability suffered and the medical evidence on record, the compensation awarded towards loss of amenities/life comforts and expectancy of life is enhanced from Rs.20,000/- to Rs.30,000/-. The compensation of Rs.35,000/- awarded towards pain and sufferings is just and proper.
10. Hence, the appellant is entitled for a total compensation of Rs.3,22,400/-, the same is rounded off to Rs.3,23,000/- as against Rs.2,59,388/- awarded by the Tribunal. Hence, I pass the following:
ORDER The appeal is allowed in part. The Judgment and Award dated 10.05.2016 passed in MVC No.2147/2011 on the file of the II Additional Senior Civil Judge and MACT., Hassan is hereby modified.
The appellant is entitled for a total compensation of Rs.3,23,000/- as against Rs.2,59,388/- awarded by the Tribunal. The enhanced compensation of Rs.63,612/- shall carry interest at the rate of 6% p.a. from the date of petition till realization.
Respondent No.2 shall deposit the entire amount within a period of four weeks from the date of receipt of copy of this Judgment.
Sd/- JUDGE.
Ksm*