IN THE HIGH COURT OF KARNATAKA, AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR M.F.A. No.8017 OF 2015 (MV) BETWEEN HANUMANTHARAYAPPA AGED ABOUT 31 YEARS, S/O ANJINAPPA, C/O RAMAKRISHNAIAH, BELAGUMBA KASABA, TUMKUR TALUK AND DISTRICT. ... APPELLANT (BY SRI. PATEL D. KAREGOWDA) AND 1. SHIVAKUMAR MAJOR, S/O S. RUDRAIAH, SOMESHWARA TEMPLE ROAD, DABBASPET (POST), NELAMANGALA TALUK, BENGALURU RURAL DISTRICT.
2. NATIONAL INSURANCE CO. LTD., BEHIND SRI KRISHNA TALKIES, BESIDE KRISHNA CHOULTRY, M.G. ROAD, TUMAKURU-572 101, BY ITS MANAGER. ... RESPONDENTS (BY SRI. C. M. POONACHA, ADV., FOR R-2 NOTICE TO R1 DISPENSED WITH VIDE ORDER DT. 12.12.2017) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.07.2015 PASSED IN MVC NO.1382/2009 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT – XI, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for Respondent No.2 and perused the records. Notice to Respondent No.1, the owner of the offending vehicle who was placed exparte before the MACT, has been dispensed with by this court by its order dated 12.12.2017.
2. The injured-claimant has preferred this appeal seeking enhancement of compensation, being not satisfied with the quantum of compensation awarded by the MACT by its impugned judgment dated 22.07.2015, in M.V.C.No.1382/2009. By its impugned order, the MACT had awarded a compensation of Rs.1,44,800/- with interest at 6% per annum from the date of the petition till the date of realization and the respondent No.1 – owner and Respondent No.2 – Insurance Company were held jointly and severally liable to pay the compensation.
3. The facts of the case are that on 20.07.2008 at about 8.00 p.m., when the appellant / petitioner was proceeding from the left side of the road towards Urdigere, on the way, the rider of a motor cycle bearing registration No.KA-04-EU-2711 came and dashed against the appellant, as a result of which he fell down and sustained grievous injuries.
4 After service of notice, the owner of the offending vehicle Respondent No.1 did not appear and hence was placed exparte. Respondent No.2 – Insurance Company appeared before the tribunal, and filed their written statement and contested the claim petition. During the enquiry before the Tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the rider of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
5 The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to the rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.1,44,800/- with interest at 6% per annum from the date of the petition till the date of realization under the following heads.
Sl.
No.
Headings Amount Rs.
Total Rs.1,44,800/-
6 The learned counsel for the appellant vehemently contended that the compensation under the head ‘Pain and suffering’ is on the lower side, since the appellant had sustained grievous injuries in the accident and was an in- patient for a period of three months. As per the wound certificate at Exhibit P6, the appellant had sustained fracture of mid right femur, fracture to right medial malleolus and crush injury, right foot lacerated wound over right knee joint. The injuries being grievous in nature, the learned counsel submits that the amount of Rs.35,000/- awarded towards ‘Pain and suffering’ is on the lower side.
Further, he contended that the Tribunal erred in awarding an amount of Rs.14,000/- towards loss of income during laid up period, which is also very meagre having regard to the fact that the appellant was an in- patient for a period of three months. The learned counsel submits that the compensation towards ‘Loss of future income due to permanent disability’ is also on the lower side and the Tribunal has erred in assessing the notional income of the deceased at Rs.3,500/-. Since he was doing milk vending business and was earning Rs.8,000/- per month, the Tribunal ought to have taken his notional income at least at Rs.5,000/-. Further, when the Doctor himself had opined that the appellant had suffered 17% disability to the whole body, the Tribunal was not justified in considering the disability at just 5% to the whole body and arriving at the loss of future income due to permanent disability. The learned counsel further contends that since the appellant had to undergo further surgery for removal of implants, the compensation of Rs.8,000/- awarded under the said head is on the lower side and hence the same requires enhancement having regard to the facts and circumstances of the case.
7 Per contra, the learned counsel appearing for the insurer submitted that the Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
8. On careful evaluation of the material on record, it is seen that the injured claimant had sustained fracture of mid right femur, fracture to right medial malleolus and crush injury, right foot lacerated wound over right knee joint and was an in-patient in hospital for a period of three months. Under such circumstances, having regard to the nature of injuries sustained by the claimant, period of treatment undergone by the injured and consequential disability sustained by him, the compensation awarded by the tribunal towards ‘Pain and suffering’ is slightly on the lower side and the same is awarded at Rs.50,000/- as against Rs.35,000/- awarded by the Tribunal. Further, the amount of Rs.14,000/- towards ‘loss of income during laid up period’, being on the lower side, having regard to the fact that the appellant was an in-patient for a period of three months, the same is awarded at Rs.25,000/- as against Rs.14,000/- awarded by the Tribunal. Since the appellant was doing milk vending business and it was contended that he was earning Rs.8,000/- per month, the Tribunal having taken it as Rs.3,500/- per month, is on the lower side. Hence, his notional income is taken at Rs.5,000/-. Further, when the Doctor himself had opined that the appellant had suffered 17% disability to the whole body, the Tribunal was not justified in considering the disability at just 5% to the whole body and arriving at the loss of future income due to permanent disability. Hence, the disability suffered by the appellant is hereby re- assessed at 10% to the whole body, instead of 5%. Hence, taking the notional income at Rs.5,000/- per month and disability at 10% and with multiplier 18, the compensation under the head ‘Loss of future income due to permanent disability’ comes to Rs.1,08,000/- (5000 x 12 x 18 x 10/100) as against Rs.37,800/- awarded by the Tribunal. Further, the compensation under the head ‘Future medical expenses’ is enhanced by another Rs.7,000/- in addition to Rs.8,000/- already awarded by the Tribunal. Hence, the compensation towards ‘Future medical expenses’ would be totally Rs.15,000/- as against Rs.7,000/- awarded by the Tribunal. However, the compensation awarded by the Tribunal under other heads is just and reasonable and does not call for interference. Thus, in all, the claimant is entitled to a total compensation of Rs.2,48,000/- as against Rs.1,44,800/- awarded by the Tribunal.
9. Accordingly, the appeal preferred by the appellant is allowed in part. In modification of the impugned judgment and award dated 22.07.2015 passed by the Addl. Senior Civil Judge & MACT-XI, Tumakuru, in M.V.C.No.1382/2009, the compensation payable to the claimant / appellant is enhanced from Rs.1,44,800/- to Rs.2,48,000/-. The enhanced compensation comes to Rs.1,03,200/-, which will carry interest at 6% from the date of claim petition till the date of realization. The enhanced compensation with interest shall be deposited before the Tribunal within six weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant/appellant, in terms of the award passed by the Tribunal, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS