IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR M.F.A. No.1361/2015 (MV - I) BETWEEN:
SRI.AJITH SHETTY, S/O BASAVA SHETTY, AGED ABOUT 33 YEARS, R/O “ANUGRHA NILAYA”, KOIKURU, MANOOR VILLAGE, UDUPI TALUK AND DISTRICT – 576 101.
(BY SRI NAGARAJA HEGDE, ADVOCATE) AND:
1. SAHOD, S/O ABDUL GANI, AGED ABOUT 23 YEARS, R/AT “HOUSE NO.2-54, UMMER MAZIL, GRACE AUDITORIUM, KANNUKERE, THEKKATTE VILLAGE AND POST, KUNDAPURA TALUK UDUPI DISTRICT – 576 201.
2. THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., SHANKAR BUILDING, MOSQUE ROAD, UDUPI DISTRICT – 576 101.
3. ABDUL GANI, S/O SHEIK UMMER SAHEB, AGED ABOUT 55 YEARS, UMMER MANIZIL, “GRACE AUDITORIUM’, ... APPELLANT KANNUKERE, THEKKATTE VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT – 576 201.
... RESPONDENTS (BY SRI JANARDHAN REDDY, ADVOCATE FOR R2; VIDE ORDER DATED 22.11.2016 NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.11.2014 PASSED IN MVC NO.8/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, KUNDAPURA, 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 Though this appeal is listed for admission with the consent of the learned counsel for the appellant and the respondents, this appeal is taken up for final disposal.
2. I have heard the learned counsel for the appellant and the learned counsel for the respondents and perused the records.
3. The brief matrix of the appeal are as follows;
It is stated in the appeal that on 12.04.2012 at about 12.35 p.m. the appellant was injured while he was riding motorcycle bearing Reg. No.KA-20-Q- 3279 along with the pillion rider in MVC No.909/2012 on the road NH-66 from Kota towards Padukere side. When they reached the place called Amrutheswari Temple Cross Road of Kota, at the same time a motorcycle bearing Reg.No.KA-20-EA- 2642 belonging to the first respondent and driven by himself in a very high speed and rash and negligent manner came from Saligrama towards Kundapura side and dashed against the appellant’s motorcycle, due to the said impact, the appellant sustained grievous injuries.
4. Subsequently, the injured namely Ajith Shetty was shifted to Mahesh Hospital, Brahmavar wherein he was treated in first aid treatment and thereafter shifted to Chinmayi Hospital, Kundapura and taken treatment from 12.04.2012 to 20.04.2012. Thereafter, the appellant was treated as an out patient and under treatment with advise of complete rest for the period of six months. The appellant has stated that he has spent Rs.40,000/- towards medical expenses, Rs.10,000/- towards food and nourishment charges and Rs.15,000/- towards conveyance charges and Rs.4,000/- towards nursing and attendants charges and hence, he has filed petition seeking award of compensation.
5. Based upon the pleadings of the parties, the Tribunal has given finding in MVC No.8/2013 and the petitioner has been examined as PW.2 and the doctor has been examined as PW.3 and got marked the documents as Exs.P.8 to 14.
6. The Tribunal has awarded a sum of Rs.1,39,655/- with interest at the rate of 6% from the date of petition till the date of deposit of compensation before the Tribunal. This appeal is filed seeking enhancement of compensation on the ground that the compensation awarded by the Tribunal is insufficient, inadequate and disproportionate to the actual loss and damage caused to the appellant. The compensation of Rs.30,000/- awarded towards pain and suffering is inadequate. He was working as Junior Assistant in KOTA CA Bank and he was earning more thatn Rs.15,000/- per month, but the Tribunal has taken only Rs.6,500/- as his income and awarded a sum of Rs.26,000/- towards loss of income which is on the lower side. The Tribunal has not awarded any compensation towards permanent disability and loss of future earning capacity though the doctor assessed disability at 20% to his right lower limb. The compensation awarded on the other heads also on the lower side.
7. The learned counsel for the respondent submitted that the compensation awarded by the Tribunal is just and fair compensation and this appeal is liable to be dismissed.
8. PW.3 who is the Orthopedic Surgeon of Chinmayi Hospital, Kundaura has deposed that the appellant has suffered disability to the extent of 20% to the whole body. He further stated that the accidental injuries has caused disability to the appellant. Regarding loss of future earning capacity, PW.2 has been examined in MVC No.8/2013. He has stated that he has working as Junior Assistant in KOTA CA Bank and earning Rs.15,000/- per month but the Tribunal has taken only Rs.6,500/- per month. It cannot be said that the appellant is not entitled for seeking compensation towards disability of 20% to the whole body. It is further stated that the injured could not work for four months after the accident.
In the Wound Certificate-Ex.P.8 and Disability Certificate-Ex.P.9 issued by the doctor and Ex.P.10 is the certificate issued by KOTA CA Bank.
9. The learned counsel for the respondent submits that considering the evidence of PW.2 who is said to be injured and PW.3-Doctor who has treated the injured has given treatment and stated that the injured has suffered disability to the extend of 20% to the whole body. Considering the same, the Tribunal has awarded just and proper compensation under various the heads. PW.2 is working as Junior Assistant in KOTA CA Bank and he was drawing salary of Rs.15,000/-. However, the appellant has not examined the author of Ex.P.10 to prove his income and accordingly, the Tribunal has taken his income of Rs.6,500/- which is just and correct.
10. Having regard to the contentions urged by the both parties, it is relevant to consider the evidence of PW.3 who has treated the appellant. The appellants have also produced Wound Certificate, Disability Certificate and Medical Bills. Though the PW.2 was subjected to cross-examined by the respondents, the respondents have not disputed the documents produced by the appellant. The Tribunal has taken income of Rs.6,500/- as the income of the appellant which is on the lower side. Considering the year of the accident as 2012 and nature of work of the appellant, the notional income of Rs.7,000/- is taken for the purpose of considering the loss of income during laid up period. Hence, the appellant is entitled another sum of Rs.20,000/- towards pain and suffering, the appellant is entitled for Rs.28,000/- towards loss of income during laid up period. Further, a sum of Rs.25,000/- is awarded towards loss of amenities. Hence, the appellants are entitled for enhance amount of compensation of Rs.47,000/-. In all, the appellants are entitled for Rs.1,86,655/- as against Rs.1,39,655/- awarded by the Tribunal in the impugned judgment. The enhanced amount carries 6% interest from the date of petition till the payment. Accordingly following order is passed;
ORDER This appeal is allowed in-part and the appellant is entitled for total compensation of Rs.1,86,655/- with interest at 6% per annum from date of petition till the date of realization. The respondent-Insurance Company is directed to deposit the enhanced compensation amount of a sum of Rs.47,000/- with interest at 6% p.a. within a period of four weeks from today. The entire amount of compensation shall be released in favour of the appellant after due identification.
Office is directed to send back the LCRs to the concerned Tribunal if received.
Sd/- JUDGE nm