IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.6368/2014 (MV) Between:
Sri Basavaiah S/o Sri Mari Madegowda Aged about 56 years R/at. No.2, Survey No. 114/2 Cauverynagar, Kattriguppe Bangalore – 560 085. ... Appellant (By Sri Naik Ramachandra Rama, Advocate) And:
1. Sai Care Skywings Logistics Private Ltd., No.8, 15th Cross, J.P. Nagar 5th Phase, Bangalore – 560 078. Rep. By its Director.
2. Universal Sompo General Insurance Company Ltd., “KVD Towers”, No.7/3 2nd Floor, above Barklaya Finance Opp. 100 feet Road, Old Madrass Road Indira nagar Bangalore – 560 038 By its Div. Manager … Respondents (By Sri B. Pradeep, Adv. for R2 Notice to R1 is dispensed with) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 31.07.2014 passed in MVC No.1943/2013 on the file of the XIII Additional Small Cause Judge, Member, MACT, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though this appeal is listed for admission, it is taken up for final disposal.
2. The injured claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal.
3. I have heard the learned counsel appearing on both side.
4. The case of the appellant is that on 25.09.2012 at about 5.30 a.m., while he was proceeding on his bicycle from his house to go towards Banana Mandi and when he reached near CAR Police quarters, Binny Mill Road, Bangalore, the Tavera car bearing registration No.KA-05-AD-5350 driven by its driver in a rash and negligent manner came and dashed against his bicycle. Due to the said impact, he fell down and sustained injuries all over the body.
5. The Tribunal awarded a total compensation of Rs.2,05,400/- with interest at 8% per annum from the date of petition till realization.
6. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel appearing for the appellant would submit that the appellant was aged about 55 years at the time of accident and he was earning a sum of Rs.500/- per day as a Banana vendor. He submits that on account of accidental injuries, the appellant has suffered permanent physical disability to the whole body at 12%. He submits that the total compensation awarded by the Tribunal is not commensurate with the injuries suffered by the appellant and therefore, seeks to enhance the compensation awarded by the Tribunal.
7. Per contra, the learned counsel appearing for respondent No.2/insurance co., justifying the total compensation awarded by the Tribunal would contend that the compensation awarded is just and reasonable and seeks to dismiss the appeal.
8. The accident in question involving Tavera car bearing registration No.KA-05-AD-5350 and the appellant having sustained injuries on account of the actionable negligence on the part of the driver of the said car is not disputed. The offending vehicle was insured with the respondent No.2/insurance company.
9. Though it is contended that the appellant was earning a sum of Rs.500/- per day, however, apart from his oral testimony there is no other convincing evidence on record to hold that the appellant was earning Rs.500/- per day i.e., Rs.15,000/- per month. The Tribunal has taken the income of the appellant as Rs.4,500/- per month. Considering the avocation of the appellant and also the year of accident, it is just and proper to take the notional income of the appellant at Rs.7,000/- per month.
10. The appellant has suffered fracture of left knee patella, aeromico clavicullar diastasis of the left shoulder, deep cut wound over left back of the thigh, lacerated wound over left knee and abrasion injury over the left lateral malleolus. According to the medical evidence, the first two injuries are grievous in nature and other injuries are simple in nature. He has taken treatment as an inpatient from 25.09.2012 to 02.10.2012. It is stated that fracture has been united. The doctor has assessed the permanent physical impairment at 35% to the lower limb. Considering the medical evidence on record, the percentage of disability taken by the Tribunal at 10% to the whole body is just and proper. The appropriate multiplier applicable to the age of the appellant is 11 and therefore, the appellant is entitled for a sum of Rs.92,400/- towards ‘Lost of future income’. The Tribunal has awarded a sum of Rs.20,000/- towards ‘Lost of income during laid up period, diet, nourishment etc., and the same is enhanced to Rs.30,000/-. The compensation awarded under all other heads are just and reasonable. The appellant is therefore, entitled for enhanced compensation of Rs.43,000/-.
Accordingly, I passed the following:
O R D E R The appeal is allowed in part. Judgment and award dated 31.07.2014 in MVC No.1943/2013 on the file of the XIII Additional Small Causes, MACT, Bangalore is hereby modified.
The appellant/claimant is awarded an additional compensation of Rs.43,000/- with interest at 6% per annum from the date of the petition till the date of realization in addition to what has been awarded by the Tribunal.
Respondent No.2/insurance company shall deposit the amount within a period of four weeks from the date of receipt of the copy of this order.
Sd/- JUDGE nms