IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. No.2636 OF 2010 (MV) BETWEEN:
SRI.D.MARAPPA S/O SRI.THIMMAPPA AGED ABOUT 43 YEARS R/O SHARANABASAVESHWARA LAYOUT JAGALUR, DAVANAGERE DISTRICT …APPELLANT (BY SRI.M.NAGARAJA, ADV.) AND:
1. MOHAMMED AMANULLA S/O MOHAMMED KHASIM SAB AGE 35 YEARS R/O SANTHEMUDDAPURA VILLAGE BISTHUVALLI POST, JAGALUR TALUK DAVANAGERE DISTRICT 2. THE ORIENTAL INSURANCE COMPANY LTD THILUVALLY COMPLEX 1ST FLOOR, P.B.ROAD DAVANAGERE – 577 002 REPRESENTED BY THE MANAGER 3. SALEEM S/O BASHA SAB AGE 41 YEARS R/O SANTHEMUDDAPURA VILLAGE BISTHUVALLI POST, JAGALUR TALUK DAVANAGERE DISTRICT …RESPONDENTS (BY SRI.A.M.VENKATESH, ADV. FOR R2;
R1 AND R3 NOTICE DISPENSED WITH VIDE ORDER DATED 13.07.2010) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGIANST THE JUDGMENT AND AWARD DATED 14.12.2009 PASSED IN MVC NO.662/2007 ON THE FILE OF II ADDITIONAL CIVIL JUDGE (SR.DN.) & VI ADDITIONAL MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant aggrieved by the quantum of compensation awarded by the Tribunal has preferred this appeal seeking enhancement of compensation.
2. Heard Sri M.Nagaraja, learned counsel appearing for the appellant/claimant and Sri A.M.Venkatesh, learned counsel appearing for respondent No.2/insurer. Perused the judgment and award passed by the Tribunal.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 02.05.2007 due to rash and negligent driving of the offending TVS Star Deluxe Motor Bike bearing registration No.KA-17/U-4878 by its rider and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:
“Whether the compensation of Rs.1,58,300/- with interest at 6% per annum awarded by the Tribunal is just and reasonable or does it call for enhancement?”
4. As per the wound certificate-Ex.P6, the claimant had sustained comminuted fracture lower end of humerus and there was a wound over posterior aspect of right elbow. For the fractured injuries he underwent operation of open reduction and fixation of plates and wires with POP cast. The injuries sustained and treatment underwent by the claimants were evident by other medical records and corroborated by the oral evidence of the claimant and Doctor who were examined as PW1 and PW2 respectively. PW2 doctor in his evidence has stated that he treated the claimant for the aforesaid injuries and assessed the disability at 35% to 40%.
5. Considering the nature of injuries sustained by the claimant Rs.25,000/- awarded by the Tribunal towards ‘pain and suffering’ is on the lower side and therefore a sum of Rs.40,000/- awarded towards ‘pain and suffering’.
6. As Rs.15,000/- awarded by the Tribunal towards medical expenses is as per the medical bills produced by the claimant it is just and reasonable and there is no scope for enhancement under this head.
7. The claimant was treated as impatient for 17 days at Bapuji Medical Hospital, Davanagere.
Considering the same, a sum of Rs.7,500/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges as against Rs.5,000/- awarded by the Tribunal.
8. Nature of injuries sustained by the claimant would suggest that he must have been under rest and treatment for a period of three months. Therefore, a sum of Rs.12,000/- is awarded towards loss of income during laid up period as against Rs.7,700/- awarded by the Tribunal.
9. The claimant claims to have been earning Rs.9,500/- per month by doing contract work and agricultural work, but it is not established by adducing evidence. In the absence of proof of income, considering his age as 42 years, year of accident as 2007 and his avocation as daily wager, his income is assessed at Rs.4,000/- per month. The multiplier applicable to his age group is ‘14’. The doctor has assessed 35% to 40% disability. The Tribunal considering the injuries sustained by the claimant had taken 15% disability to the whole body. So loss of future income works out to Rs.1,00,800/- and it is awarded as against Rs.75,600/- awarded by the Tribunal. A sum of Rs.30,000/- is awarded towards loss of amenities and discomfort as against Rs.25,000/- awarded by the Tribunal. A sum of Rs.10,000/- awarded by the Tribunal towards future medical expenses is just and proper.
10. Thus, the claimant is entitled for the
11. Accordingly, the appeal is allowed-in-part.
The judgment and award dated 14.12.2009 passed in MVC No.662/2007 by the II Additional Civil Judge (Sr.Dn.) & VI Addl. MACT at Davangere Small Causes Judge and XXVIII ACMM, Bengaluru, stands modified. The claimant is entitled for an additional compensation of Rs.57,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
12. 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 and same is ordered to be released in favour of the claimant immediately after the deposit.
No order as to costs.
SD/- JUDGE KLY/