IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21st DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.7039 OF 2016 [MV] BETWEEN Sri.Ahamed Sharif, S/o Abdul Jabbar Sab, Aged about 60 years, R/o Christian Colony, Chikkamagaluru – 577 101. ... Appellant [By Sri. Prakash Salmani, Advocate for Sri.Sathish R Girji, Advocate] AND 1. The Secretary, Sri.Chunchanagiri Higher Primary School, B.G.Nagar, Nagamangala, Mandya District – 571 401.
2. The Branch Manager, National Insurance Co. Ltd., No.1576, 1st Floor, V.V. Road, Mandya – 571 401. ...Respondents [By Sri. E.I.Sanmathi, Advocate for R2;
R1 notice dispensed with vide order dated 21.03.2019] This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 08.07.2016 passed in MVC No.139/2014 on the file of the 2nd Additional District Judge & MACT, Chikkamagaluru, 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 Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent-insurer and perused the records.
2. Though the matter is listed for admission, with consent of both the parties, the same is heard for final disposal.
3. The injured-claimant has preferred this appeal being not satisfied with the quantum of compensation awarded vide judgment and award dated 08.07.2016, passed by the II Additional District Judge and Motor Accident Claims Tribunal, Chikkamagaluru, in MVC. No.139/2014, thereby seeking enhancement of compensation. The Tribunal has awarded a total compensation of Rs.1,55,175/- with interest at 6% per annum from the date of petition till the date of deposit, for the injuries sustained by the claimant in a road traffic accident.
4. The facts of the case are that on 21.01.2013 at about 5.30 p.m, when the injured-claimant was waiting for an autorickshaw at KST road near Keshavaswamy temple and town road near Mariyappa circle, the driver of the bus bearing registration No.KA-54/2665 drove the same in a rash and negligent manner and dashed against the claimant. Due to the impact, he sustained grievous injuries. He was shifted to BGS hospital at Adhichunchanagiri, wherein he took treatment as an inpatient. It is the further case of the claimant that he was earning Rs.9,000/- to 12,000/- per month by vending vegetables and scrap business and on account of the accidental injuries, he lost the capacity to earn.
5. The respondents herein, the owner and insurer of the offending vehicle did appear before the Tribunal and contested the claim petition. During the enquiry before the Tribunal, the claimant established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the 2nd respondent herein and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident occurred due to the rash and negligence of the driver of the Maruthi Omni and consequently awarded a total compensation of Rs.1,55,175/- with interest at 6% per annum from the date of petition till the date of realization under the following heads.
Sl Headings Amount No Rs.
1 Future loss of income 64,800-00
7. Learned counsel for the appellant would contend that though the Doctor has assessed the permanent disability suffered by the appellant to the whole body at 50%, the Tribunal has not considered the same and it is not justified in assessing the disability at 10%. Further, the income assessed at Rs.6000/- is also on the lower side. Therefore, he submits that the total compensation awarded by the Tribunal requires to be enhanced, by modifying the judgment and award.
8. Per contra, learned counsel appearing for the 2nd respondent-insurer, would justify the total compensation awarded by the Tribunal, contending that the same is just and reasonable and no enhancement is required and accordingly, prays for dismissal of the appeal.
9. According to the appellant, he was earning a sum of Rs.9000 to 12,000/-. Except the self serving testimony of the claimant, there is no evidence forthcoming to substantiate the same. However, considering the fact that the accident was of the year 2013, this Court deem it appropriate to take the income of the claimant at Rs.8000/- per month.
10. Ex.P.3, wound certificate reveals that the claimant had sustained fracture of distal 1/3rd tibia and fracture of upper 1/3rd distal end fibula. The Doctor who treated the injured has been examined as CW No.1 through commission. According to the Doctor, the claimant was aged 58 years and he found that there was an operated scar over the upper and lower end of the left leg. He was treated at M.G. hospital, Chikkamagaluru and X-ray shows mal-union of tibia with implants in situ. He is unable to walk on plain surface without support, not able to walk on slopes and climb stairs, he cannot able to squat on the floor, not able to sit and stand cross legged, not able to stand on affected limb. The Doctor has stated that the appellant has suffered functional disability to an extent of 50%.
11. Learned counsel for the 2nd respondent while disputing such percentage of disability, contended that the stroke/paralysis suffered by the claimant was not on account of the injuries sustained by him in the accident. He further contended that the Doctor (CW.1), in his cross-examination has stated that he cannot say as to whether the paralysis suffered by the petitioner was due to the injuries sustained by him in the road traffic accident.
12. Considering the avocation of the appellant, nature of injuries, surgery undergone by him and the medical evidence on record, this Court deem it appropriate to assess the permanent disability suffered by the claimant-appellant at 15% as against 10% taken by the Tribunal. As, the appellant was aged 60 years at the time of accident, the appropriate multiplier that would be applicable is ‘9’. Therefore, towards loss of future earning, the claimant- appellant is entitled to a compensation of Rs.1,29,600/- (Rs.8000x12x9x15/100=1,29,600) as against Rs.64,800/- awarded by the Tribunal. Having regard to the nature of injuries, period of treatment and consequential disability suffered by the appellant, the compensation awarded towards pain and sufferings is on the lower side and the same is enhanced to Rs.40,000/-. The compensation awarded towards ‘Loss of amenities’ is enhanced to Rs.35,000/-. The loss of income during laid up period is enhanced to Rs.24,000/-. The compensation of Rs.7,000/- awarded towards conveyance, food and nourishment is enhanced to Rs.20,000/-. The sum awarded towards medical expenses is just and proper. The doctor has stated that one more surgery is required for removal of implants. However, no amount is awarded by the Tribunal. A sum of Rs.20,000/- is awarded towards future medical expenses. Thus, the claimant-appellant is entitled for a total compensation of Rs.3,21,975/- rounded off to Rs.3,22,000/-, as against Rs.1,55,175/- awarded by the Tribunal. Hence, I pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 08.07.2016, passed by the II Additional District Judge and Motor Accident Claims Tribunal, Chikkamagaluru, in MVC.139/2014, the compensation payable to the claimant-appellant herein is enhanced from Rs.1,55,175/- to Rs.3,22,000/- (Rupees Three lakhs twenty two thousand only) with interest at the rate of 6% per annum from the date of petition till realization excluding Rs.20,000/- awarded towards future medical expenses.
The 2nd Respondent-insurer shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the enhanced amount with interest accrued thereon shall be disbursed to the claimant- appellant herein, on proper identification.
sd/- JUDGE VR