IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Miscellaneous first Appeal No.8799 OF 2010 (MV) Between:
SRI ANJINAPPA SON OF LATE SONNAPPA, AGED ABOUT 54 YEARS, NOW RESIDING AT NO.314, JAKKUR VILLAGE, YELAHANKA HOBLI, BENGALURU NORTH.
... APPELLANT (BY SRI KARTHIK.P.M., ADVOCATE FOR SRI K.N.RAKSHIT, ADVOCATE) And:
1. THE ORIENTAL INSURANCE CO., LTD., REPRESENTED BY ITS MANAGER, DIVISIONAL OFFICE NO.10, 213-217, NAGAPRABHA CHAMBERS, 3RD MAIN, 4TH CROSS, CHAMARAJPET, BENGALURU – 560 018 2. SRI B.K.LOKESH SON OF K.KRISHNAPPA, MAJOR, RESIDING AT BUDIGERE CROSS, VIRGONAGAR POST, BENGALURU – 560 049 ... RESPONDENTS (BY SRI E.S.INDIRESH, ADVOCATE FOR R1; SRI M.J.ALWA, ADVOCATE FOR R2) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 14.07.2010 PASSED IN MVC NO.281/2009 ON THE FILE OF XVI ADDITIONAL JUDGE, MEMBER MACT., BENGALURU CITY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLENEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the claimant in MVC No.281/2009 on the file of the XVI Additional Judge, Motor Vehicles Accident Claims Tribunal., Bengaluru (SCCH – 14) (for short, the Tribunal). The petition in MVC No.281/2019 filed under Section 166 of Motor Vehicles Act, 1988, is allowed by the Tribunal by the impugned judgment dated 14.07.2010 granting a total sum of Rs.2,06,680/- along with interest at the rate of 6% per annum from the date of petition till the date of the realization. This amount of Rs.2,06,680/- is awarded under the following heads:-
2. The learned counsel for the claimant submits that there is no dispute about the accident or the liability the insurer-respondent No.1, and this appeal is filed seeking enhancement in the compensation awarded. It is therefore undisputed that the claimant and another Sri Ramachandrappa were hit by the offending vehicle, a tempo bearing registration No.KA03-AA-1239, when they were waiting to board a bus on Devanahalli-Sulibele Road. Sri Ramachandrappa succumbed to the injuries caused by this accident, and the claimant who suffered fracture of right tibia as well as right fibula, was hospitalised and had to undergo surgical procedure. He was hospitalised for three days and he has undergone procedure for fracture of shaft of right tibia and right fibula. The Doctor who treated the claimant is examined as PW.3 and has stated that the claimant has suffered a permanent disability of 8%.
3. The learned counsel for the claimant argued for enhancement in the compensation on the following grounds:-
a) The Tribunal has awarded only a sum of Rs.40,000/- towards pain and suffering. This amount is conservative in view of the fact that the claimant has suffered fractures of both right tibia and right fibula and had to undergo surgery as aforesaid. Therefore, there will have to be appropriate enhancement.
b) The claimant, at the time of the accident was earning his livelihood as a milkman. He has not placed on record proof of actual income. The Tribunal has taken notional income at Rs.4,000/- per month, but it should be as per norms evolved for settlement in Lok Adalath. As per such schedule, in the cases of accidents in the year 2008, notional income would be Rs.4,500/- per month.
c) The Doctor has assessed permanent disability at 8% in the light of the injuries suffered, but the Tribunal has taken the partial disability at 6% for the purpose of computation of loss of future earning capacity. The undisputed evidence is that the claimant was working as a milkman and this vocation involves physical exercise with lots of walking and lifting. The functional disability could not have been taken at 6%.
d) If the compensation towards loss of income and loss of future earning capacity is reworked with these changes in the notional income and percentage of functional disability, the claimant would be entitled for enhancement. The claimant would also be entitled for enhancement in the compensation towards loss of income during laid up period.
e) The Tribunal has granted only a sum of Rs.10,000/- towards conveyance, attendant’s charges, nourishment and diet charges. There should be appropriate enhancement under this head in the facts and circumstances of the case.
f) The Tribunal has awarded a sum of Rs.8,000/- towards future medical expenses, but the Doctor has opined that the claimant would require a sum of Rs.10,000/- for future medical expenses. The Tribunal has not awarded appropriate sum towards future medical expenses.
4. The learned counsel for the respondent No.1- the insurer of the tempo, argued in support of the Tribunal’s assessment of compensation towards permanent disability and the assessment of compensation towards nourishment. The learned counsel emphasized that if at all there is any re- assessment of the compensation, it should be as per the norms evolved for settlement in the Lok Adalath.
5. The question for consideration in this appeal in the light of the rival submissions is:
“Whether the claimant is entitled for any enhancement awarded”.
This Court, for reasons of consistency and uniformity in assessing compensation adopts the norms/guidelines evolved for settlement in Lok Adalath when there is no evidence as regards actual income or special circumstances justifying a particular amount of compensation. Further, to ensure that such uniformity is maintained even in the matter of assessment of general damages in cases of personal injury, the norms/guidelines evolved for settlement in Lok Adalat is adopted. As per such norms/guidelines, a sum of Rs.40,000/- is awarded for an injury and a sum of Rs.10,000/- for every injury thereafter. The claimant who has suffered fracture of both the bones of right leg would be entitled for enhancement in a sum of Rs.10,000/- towards pain and suffering. The notional income, as per the schedule/guideline for settlement in the Lok Adalath in cases arising out of accident in the year 2008, where there is no proof of actual income, is Rs.4,500 per month. The Tribunal has taken Rs.4,000/- per month. Therefore, the income of the claimant, as of the date of the accident, could be reasonably taken at Rs.4,500/- per month.
6. The amount towards loss of future income would depend upon the functional disability that results from the permanent disability resulting from the injuries. The claimant has suffered fracture of shaft of right tibia mid third with fracture of shaft of right fibula, and the Doctor has assessed the permanent disability at 8%. A person who has suffered fracture of both fibula and tibia and who has to undergo surgery for internal fixators would definitely be impeded in his movement. The claimant’s vocation is as a milkman, and the injuries suffered by him would definitely affect his work.
In the considered opinion of this Court, the functional disability, therefore will have to be taken at 10%. The claimant consequentially will be entitled for enhancement towards loss of income during laid up period and loss of future earning capacity.
7. The Tribunal has granted a sum of Rs.10,000/- towards conveyance, attendant’s charges, nourishment and diet, and a reasonable amount under these heads would be a total sum of Rs.15,000/- and as such, the claimant would be entitled for enhancement of Rs.5,000/-. The claimant would also be entitled to a higher side towards future medical expenses in view of the Doctor’s evidence. The Doctor, has assessed such future medical expenses as of the date of his evidence at Rs.10,000/- per month. However, with march of time, the amount under this head cannot be the same. This Court is of the considered view that there should be an enhancement of Rs.12,000/- towards future medical expenses. Consequentially, the claimant would be entitled for enhanced compensation in a sum of Rs.56,720/-, which is computed as follows:-
Sl.
No.
Head Amount awarded by the Tribunal Enhanced compensation by this Court 1 Pain and suffering 40,000/- Rs.10,000/-
2 Loss of income and inconvenience 16,000/- 2,000/-
(500x4 months) 3 Medical Expenses 81,000/- -
4 Loss of future earning 31,680/- 27,720/-
(4500x12x11x10% - 31,680/-) 5 Loss of amenities 20,000/- -
6 Conveyance, Attendant’s charges, nourishment and diet 10,000/- 5,000/-
7 Future medical expenses 8,000/- 12,000/-
Total 2,06,680/- 56,720/-
For the foregoing reasons the following order:
ORDER a) The appeal is allowed in part. The impugned judgment and award dated 14.07.2010 in MVC.No.281/2009 on the file of the XVI Additional Judge, Motor Vehicles Accident Claims Tribunal., Bengaluru (SCCH – 14) is modified granting an enhanced compensation of Rs.56,720/- along with interest at the rate of 6% from the date of petition till the date of deposit, but no interest shall be paid on the enhancement towards future medical expenses.
b) The respondent No.1-the Insurance Company shall deposit the enhanced amount of Rs.56,720/- with interest as aforesaid within six weeks from the date of receipt of a certified copy of this judgment.
The office to draw the decree accordingly.
Sd/- Judge KPS/RB