IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE L.NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO.7583 OF 2017 (MV)
(MR.Y.P.VENKATAPATHI, ADVOCATE FOR RESPONDENT NO.2 NOTICE TO RESPONDENT NO.1 DISPENSED WITH VIDE ORDER DATED 17.10.2017) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.7.2017 PASSED IN MVC NO.163/2015 ON THE FILE OF THE ADDITIONAL MACT AND ADDITIONAL SENIOR CIVIL JUDGE AT RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT This appeal is filed by the claimant seeking enhancement of compensation awarded by the Additional Motor Accidents Claims Tribunal and Additional Senior Civil Judge, Ramanagara in MVC No.163 of 2015 by the judgment and award dated 21.7.2017. The Tribunal has awarded compensation of `83,400/-.
2. Heard the learned counsel for the respective parties.
3. It is the case of the claimant that on 23.11.2014, while he was walking on the left side of the road, an auto bearing No.KA-02-A-0632 driven by its driver in a rash and negligent manner dashed to the claimant, resulting in grievous injuries to him. He was shifted to the hospital.
The doctor has treated him. The claimant has produced medical documents, namely, Ex.P4 – wound certificate, Exs.P6 and P8 – X-rays and Ex.P7 – disability evaluation form.
4. The learned counsel for the claimant submitted that the accident is not in dispute, since the claimant has produced Ex.P1 – FIR, Ex.P2 – complaint, Ex.P3 – spot mahazar and Ex.P5 – charge sheet, to prove the same. It is submitted that in the disability evaluation form it is stated that the claimant has suffered 7.3% disability. The same has been accepted by the Tribunal. It is further submitted that in the cross-examination of the claimant it is elicited that he was working as a mason and was earning `9,000/- per month. The same is stated in the claim petition also. When there is material and evidence, the Tribunal should have taken the income at `9,000/- per month for awarding compensation under the head loss of future earnings on account of permanent disability. Therefore, he submitted to enhance the compensation.
5. The learned counsel for the insurance company submitted to dismiss this appeal on the ground that the disability could not be considered, since the claimant has not examined the doctor who treated him. The disability certificate produced is not prepared by PW2 – the doctor. In the circumstances, he submitted that the compensation awarded by the Tribunal is on the higher side and the appeal is liable to be dismissed.
6. The accident is not disputed and so also the injuries suffered by the claimant. Though the claimant has not examined the doctor who treated him, in order to substantiate the medical documents PW2, who is also a doctor, has been examined. The wound certificate and medical reports reveal that the claimant has suffered grievous injuries like fractures. Considering the same, the Tribunal should have awarded suitable compensation under the head ‘pain and suffering’. The Tribunal has awarded `5,000/- under the head ‘pain and suffering’. This Court consistently awards `20,000/- per fracture under ‘pain and suffering’. Considering the evidence of PW2 and also the medical documents, a sum of `30,000/- is awarded towards ‘pain and suffering’ as against `5,000/- awarded by the Tribunal.
7. The Tribunal has awarded `5,000/- towards ‘nourishment and attendant charges’, which is on the lower side. Considering the injuries suffered by the claimant and the treatment taken, additional compensation of `15,000/- is awarded under this head. Hence, `20,000/- is awarded under the head ‘food, nourishment and attendant charges’ as against `5,000/- awarded by the Tribunal.
8. The income of claimant is taken at `9,000/- per month, as elicited in the cross-examination of the claimant. Taking the laid up period as 3 months, `27,000/- is awarded towards ‘loss of income during laid up period’.
9. The claimant was aged about 47 years at the time of accident. The appropriate multiplier would be 13. It is stated in the disability evaluation form that the claimant has suffered 7.3% disability for the whole body. Hence, the calculation of ‘loss of future income’ would be 9000 x 12 x 13 x 7.3% and the compensation under the head ‘loss of future income’ comes to `1,02,492/- as against `68,328/- awarded by the Tribunal.
10. The Tribunal has awarded `5,000/- towards ‘loss of amenities and enjoyment of life’. Considering the pain and suffering undergone by the claimant, a sum of `20,000/- is awarded towards ‘loss of amenities and enjoyment of life’.
11. Therefore, the claimant is entitled to compensation as follows:
Pain and suffering Food, nourishment and attendant Charges Loss of income during laid up period Loss of future income Los of amenities and enjoyment of Life TOTAL 11. Accordingly, the appeal is allowed in part. The claimant is entitled to compensation of `1,99,492/-, as against `83,400/- awarded by the Tribunal, with interest at 6% from the date of petition till payment.
Sd/- JUDGE AHB