IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.2552 OF 2016 (MV - I) BETWEEN:
SRI. ASWATHAIAH R, S/O LATE RAJANNA, AGED ABOUT 62 YEARS, R/AT NO.K-35, I STAGE, 13TH CROSS, KYATHAMARANAHALLI, RAJAJINAGAR, BANGALORE – 560 010.
(BY SRI.VENKATE GOWDA K., ADVOCATE) AND:
1. SRI. D S PRASANTH, S/O LATE SHIVAKUMARA SWAMY, AGED IN MAJOR, R/AT NO.1628, BASAVESWARA NILAYA, LAKSHMIPURAM EXTENSION, HASSAN – 573 201.
2. M/S. IFFCO-TOKIO GENERAL, GENERAL INSURANCE CO. LTD, NO.41, 2ND FLOOR, NEXT TO MANDAVI MOTORS, CRISTU COMPLEX, LAVELLE ROAD, ... APPELLANT BANGALORE – 560 002. REPRESENTED BY ITS MANAGER.
(BY SRI.B.PRADEEP, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 27.02.2018) ... RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.17.12.2015 PASSED IN MVC NO.3475/2014 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSES JUDGE, MACT, BENGALURU, 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:
J U D G M E N T For the injuries suffered in the road traffic accident that took place on 17.03.2011, the claimant preferred claim petition before the Motor Accident Claims Tribunal-XIX, Bangalore. The Tribunal, by its judgment and award dated 17.12.2015 passed in MVC No.3475/2014 awarded compensation of Rs. 1,96,689/-. Being aggrieved by the same, the appellant is before this Court seeking enhancement in the compensation.
2. The brief facts of the case are as follows:
On 17.03.2011 at about 6.00 P.M. the appellant was proceeding on motor cycle bearing Regn.No.KA-09-ES-7416 as pillion rider. When they were proceeding near Srinivas Engineering Works, a motor cycle bearing Reg.No.KA-13- V-5947 driven by the rider at a high speed in a rash and negligent manner, came from opposite direction and dashed against the motor cycle of the appellant. The appellant who is a pillion rider and his friend sustained injuries and taken to the B.M. Hospital and was shifted to Rajarajeshwari Hospital, Mysore Road, Bangalore for treatment and further the appellant taking follow-up treatment at B.G.S. Global Hospital. The appellant filed a claim petition contending that he was working as a mechanic and earning Rs.20,000/- per month and due to the injuries sustained in the accident, he is unable to do the work and had incurred huge loss of earning and sought for compensation of Rs.10,00,000/-.
3. Sri Venkate Gowda, learned advocate appearing for the appellant contended that the compensation awarded by the Motor Accident Claims Tribunal is too meager. He further contends that the percentage of disability assessed by the Tribunal is on lower side as against the evidence of the doctor who has deposed that claimant suffered 56.66% to whole body disability and awarded lesser compensation under the head loss of future earning capacity. He further submitted that compensation awarded under ‘Pain and sufferings’, loss of income during laid up period are also on lower side. Tribunal has not awarded any compensation towards future medical expenses, as per the doctor-P.W.2 the appellant needs removal of implant at a later date and which would cost Rs.50,000/-. The Tribunal has taken income of the appellant at Rs.5,000/- p.m. which is on lower side. Therefore, he submits that compensation under these heads needs to be modified.
4. Per contra learned counsel for the second respondent – insurer supports the order of the tribunal and submits to dismiss this appeal.
5. I have heard the learned counsel for both the parties. I have gone through the records placed before me.
6. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced.
7. Considering one grievous injury and one simple injury sustained by the claimant, a sum of Rs.15,000/- is awarded towards ‘Pain & Suffering” in addition to Rs.35,000/- awarded by the Tribunal.
8. Considering the nature of injuries sustained by the claimant, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.30,000/- awarded towards ‘loss of amenities’.
9. The claimant is aged about 60 years at the time of accident, and the multiplier applicable to his age group is 9. His income is assessed at Rs.6,500/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 18% to the whole body. Therefore, the ‘loss of future income’ works out to Rs.1,26,360/- (6,500 x 12 x 9 x 18/100) and it is awarded under the same head.
10. The claimant stated to be earning a sum of Rs.20,000/- per month, by working as a mechanic. In the absence of proof of income considering his age as 60 years, year of accident as 2011, his income could be assessed at Rs.6,500/- per month as against Rs.5,000/- per month assessed by the Tribunal. The nature of injuries suggest that he must have been under rest and treatment for a period of 3 months and therefore a sum of Rs.19,500/- is awarded towards ‘loss of income during laid up period’ as against Rs. 15,000/- awarded by the Tribunal.
11. Considering the nature of injury and treatment undergone, a sum of Rs. Rs.15,000/- awarded towards “incidental expenses’ such as food and nourishment and attendant charges Rs.9,000/- awarded by the Tribunal is sound and proper and does not call for any interference.
12. Towards future medical expenses Rs. 35,000/- is awarded since the claimant is required to take further treatment for fracture injury.
13. Thus, the claimant is entitled for the following compensation:-
14. Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs. 1,29,560/- with interest at 6% p.a. from the date of claim petition till the date of realization.
15. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment.
No order as to costs.
Sd/-
ACTING CHIEF JUSTICE HR