IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 5TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.1129 OF 2014 [MV] C/W MFA NO.1130 OF 2014[MV] IN MFA NO.1129/2014 BETWEEN SRI. C. R. NAGARAJ, S/O. RAMANAYAKA, NOW AGED ABOUT 33 YEARS, RESIDING AT CHAULAHALLI, HOONAVALLI-HOBLI, TIPTUR-TALUK, TUMKUR DISTRICT.
(BY SRI. KAMALA D.K., ADVOCATE) AND 1. GOUSE MOHIDDIN, S/O. SABULAL SAB, TANGALI-VILLAGE AND POST, KADUR TALUK, CHICKMAGALUR DISTRICT.
2. UNIVERSAL SHAMPO GEN INS CO LTD., REP. BY ITS MANAGER, OPP. CRYSTAL PLAZA, INFANTRY MOHALLA, RING ROAD, ANDHERI WEST, MUMBAI-400 058.
... APPELLANT ... RESPONDENTS (BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R2, R-1 NOTICE DISPENSED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.10.2013 PASSED IN MVC NO.726/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, MEMBER MACT, ARASIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO.1130 OF 2014 BETWEEN ***** SMT. ASHWINI N.S., W/O. C.R. NAGARAJA, AGED ABOUT 21 YEARS, R/AT CHAULAHALLI, HOONAVALLI HOBLI, TIPTUR TALUK, TUMKUR DISTRICT.
(BY SMT. KAMALA D.K., ADVOCATE) ... APPELLANT AND 1. GOUSE MOHIDDIN, S/O. SABULAL SAB, TANGALI-VILLAGE AND POST, KADUR TALUK, CHICKAMAGALUR DISTRICT.
2. UNIVERSAL SHAMPO GEN INS CO LTD., REP. BY ITS MANAGER, OPP: CRYSTAL PLAZA, INFANTRY MOHALLA, RING ROAD, ANDHERI WEST, MUMBAI-400 058. ... RESPONDENTS (BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R-2 NOTICE TO R1 DISPOSED WITH) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:7.10.2013 PASSED IN MVC NO.727/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MEMBER, MACT, ARASIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’S COMING ON FOR ADMISSION., THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Though these appeals are listed for admission, at the consent of learned counsel for both the parties, the appeals are taken up for final disposal.
The claimants in MVC Nos.726 and 727 of 2012 on the file of Civil Judge (Sr. Dn.), JMFC, Arasikere have preferred these appeals seeking enhancement of compensation awarded therein.
2. The claimant in MVC No.726/2012 has preferred MFA No.1129/2014 and the claimant in MVC No.727/2012 has preferred MFA No.1130/2014.
3. I have heard the learned counsel appearing for the appellants-claimants and the learned counsel appearing for the respondent-Insurance Company.
4. It is the case of the appellants/claimants that on 13.03.2012 at about 12.00 noon, within the jurisdiction of Arasikere Rural Police Station on Arasikere-Tiptur Road near Belagumba Gate, while they were proceeding in a motor cycle bearing registration No.KA-13-X-3906, a Scorpio vehicle bearing Registration No.KA-03-MD-7931 driven by its driver in a rash and negligent manner dashed against the motor cycle, on account of which, both the rider and the pillion rider sustained grievous injuries.
5. It is the case of the claimant in MVC No.726/2012 that on account of the accident, he sustained injuries on his back, neck, left side of the head, legs etc., and he was shifted to Arasikere Government Hospital and from there he was shifted to the SSM Hospital, Hassan wherein he was an in-patient for 16 days and underwent surgery. It is his further case that, he was earning a sum of Rs.20,000/- per month by doing business and also by doing agricultural work and in view of the accident, he suffered permanent disability. The claim petition was filed seeking total compensation of Rs.15 Lakhs.
6. It is the case of the claimant in MVC No.727/2012 that on account of the accident, she sustained injuries to back bone and other other parts of the body and she was shifted to Arasikere Government Hospital, from there, she was shifted to SSM Hospital, wherein she was an in-patient for about fifteen days and due to the accident, she suffered permanent disability. Claim petition was filed seeking a totoal compensation of Rs.10 lakhs.
7. Before the Tribunal, the claimants got examined PWs.1 to 4 and Exs.P-1 to 20 were got marked to establish their claim.
8. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.1,09,000/- with interest at 6% per annum in MVC No.726/2012 and awarded a sum of Rs.1,01,500/- with interest at 6% per annum in MVC No.727/2012.
9. The negligence on the part of the driver of the Scorpio vehicle bearing registration No.KA-03-MD- 7931 and the liability of the Insurance Company to pay the compensation is not in dispute.
10. The learned counsel appearing for the appellant contended that, according to the claimant in MVC No.726/2012, he was earning a sum of Rs.20,000/- per month and the claimant in MVC No.727/2012 was earning a sum of Rs.10,000/- by doing agricultural work. However, the Tribunal has taken the income at Rs.3,500/- per month in both the cases, which is on the lower side. It is also contended that the claimants have suffered serious injuries and also suffered permanent disability and therefore the compensation awarded under the head ‘pain and suffering’, loss of future income and other heads are also on the lower side. Accordingly, prays to enhance the compensation by modifying the judgment and award passed by the Tribunal.
11. Per contra, the learned counsel appearing for the respondent-Insurance Company would justify the judgment and award passed by the Tribunal contending that the compensation awarded is just and reasonable and the same does not call for any interference and accordingly prays to dismiss the appeals.
12. The case of the appellant in MFA No.1129/2014 is that he was doing agricultural work and also doing business and earning a sum of Rs.20,000/- per month. Apart from the oral evidence, there is no other evidence adduced by the appellant to substantiate his claim that he was earning a sum of Rs.20,000/- per month. However, considering that the accident is of the year 2012, the income taken by the Tribunal at Rs.3,500/- per month is on the lower side. Accordingly, the national income of the claimant is taken as Rs.7,000/- per month. According to the doctor – PW3, the total disability in relation to the left upper limb is 26%. There is no serious challenge to the said evidence given by the doctor. In that view of the matter, the disability taken at 6% by the Tribunal is unjust. Hence, I deem it appropriate to take the disability at 9% to the whole body. The Tribunal has taken the age of the claimant as 24 years and adopted the multiplier of 18. However, it is the case of the claimant himself that he was aged about 31 years at the time of the accident, which is also evident from the document marked at Ex.P6. In view of the same, the appropriate multiplier which is applicable to his age is 16. Hence, the claimant is entitled for a compensation of Rs.1,20,960/- (Rs.7,000/- x12x16x9/100) under the head ‘loss of future income’, against Rs.45,500/- awarded by the Tribunal.
13. The Tribunal has awarded a sum of Rs.3,500/- under the head ‘Loss of income during laid up period’, the same is enhanced to Rs.7,000/-.
14. The Tribunal has awarded a sum of Rs.25,000/- towards ‘medical expenses’. Considering that the bills produced by the claimant amounts to Rs.30,237/-, he is entitled for the said amount towards ‘medical expenses’.
15. The Tribunal has awarded a sum of Rs.20,000/- towards ‘pain and suffering’. Considering the nature of injuries and the disability, I deem it appropriate to award a sum of Rs.30,000/- under the said head. The compensation of Rs.5,000/- awarded under the head ‘food and nourishment’ is enhanced to Rs.10,000/-. The compensation of Rs.10,000/- awarded under the head ‘loss of amenities’ is just and proper. Accordingly, the claimant is entitled for a total compensation of Rs.2,08,197/- which is rounded off to Rs.2,10,000/- with interest at 6% per annum, as against Rs.1,09,000/- awarded by the Tribunal.
16. It is the case of the appellant-claimant in MFA No.1130/2014 that she was doing agricultural work and earning a sum of Rs.10,000/- per month. It is her further case that she was aged about 19 years at the time of the accident. Apart from the oral evidence, there is nothing to show that she was earning a sum of Rs.10,000/- per month. However, considering that the accident is of the year 2012, the income of the claimant taken at Rs.3,500/- per month by the Tribunal is on the lower side and the national income is taken at Rs.7,000/- per month.
17. The doctor-PW4 has assessed the permanent disability suffered by the claimant to an extent of 24% in relation to the left upper limb. The Tribunal has assessed the permanent disability at 5% to the whole body which is on the lower side and therefore considering the evidence of PW-2, I deem it proper to take the disability suffered by the appellant- claimant at 8% to the whole body. The appropriate multiplier which is applicable to her age is 18 and therefore the appellant is entitled for a compensation of Rs.1,20,960/- (Rs.7,000/-x12x18x8/100) as against Rs.38,000/- awarded by the Tribunal.
18. The Tribunal has awarded a sum of Rs.20,000/- towards ‘pain and suffering’. Considering the nature of injuries and the disability suffered, the same is enhanced to Rs.30,000/-.
19. The appellant-claimant has produced medical bills for Rs.31,831/-. Accordingly, she is entitled for the said amount towards ‘medical expenses’. The compensation of Rs.3,500/- awarded towards ‘loss of income during laid up period’ is enhanced to Rs.7,000/-. The compensation of Rs.5,000/- awarded under the head ‘food and nourishment’ is enhanced to Rs.10,000/-. The compensation of Rs.10,000/- awarded by the Tribunal towards ‘loss of Amenities’ is just and proper. Hence, the appellant/claimant is entitled for a total sum of Rs.2,09,791/- which is rounded off to Rs.2,10,000/- with interest at 6% per annum as against Rs.1,01,500/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER MFA No.1129/2014 and 1130/2014 are allowed in part.
The judgment and award dated 07.10.2013 passed by the Senior Civil Judge and JMFC, MACT, Arasikere in MVC No.726/2012 is hereby modified.
The appellant-claimant in MFA No.1129/2014 is entitled for a compensation of Rs.2,10,000/- as against Rs.1,09,000/- awarded by the Tribunal, with interest at 6% per annuam, from the date of petition till the date of realization.
The judgment and award dated 07.10.2013 passed by the Senior Civil Judge and JMFC, MACT, Arasikere in MVC No.727/2012 is hereby modified.
The appellant-claimant in MFA No.1130/2014 is entitled for a compensation of Rs.2,10,000/- as against Rs.1,01,500/- awarded by the Tribunal, with interest at 6% per annum, from the date of petition till the date of realization.
The respondent No.2-Insurance Company shall deposit the amount within four weeks from the date of receipt of copy of this judgment.
snc Sd/- JUDGE