IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No. 1069 OF 2012(MV) BETWEEN:
Sri. Devaraja S/o Shri. Gurulingappa Mulaker Aged about 37 years R/at No.U-17, 6th Cross ‘B’ Main, Pipe Line Malleshwaram, Bangalore-560 003. … Appellant (By Sri.Prabhu Swamy N., Advocate for Sri.V.B.Siddaramaiah, Advocate) AND:
1. The United India Insurance CO. Ltd, Regional Office, No.25 Shankaranarayana Building M.G.Road, Bangalore-560 001. Rep. by its Regional Manager 2. Sri. L.R.Sannaveerappa S/o L.S. Rudrappa R/o Jade at post Soraba Taluk, Shimoga District Pin-577201. ... Respondents (By Sri.Jwala Kumar, Advocate for R1: Notice to R2 dispensed with v/o 24.01.2014) This MFA is filed under 173(1) of MV Act, against the Judgment and Award dated:20.08.2011 passed in MVC.No.6992/2009 on the file of the XII Additional Small Causes Judge, Member, MACT, Bangalore, 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 This appeal is filed by the claimant challenging the judgment and award dated 20.08.2011 passed by the Motor Accident Claims Tribunal, Bangalore in MVC No.6992/2009 whereby the Tribunal has awarded a compensation of Rs.3,44,000/- with interest at 6% p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 19.09.2008 at about 11.50 a.m. the claimant was riding the Bajaj Motorcycle bearing No.KA-15/K-807 along with a pillion rider. Near SSGVS High School, within the limits of Shakunavalli, a canter lorry bearing No.KA-15/4285 being driven by its driver in a rash and negligent manner dashed against the said motor cycle, as a result of which both the rider and pillion rider were knocked down on the road thereby they sustained grievous injuries. Immediately after recovering from the injuries, he has filed a claim petition before the MACT, Bangalore in MVC No.6992/2009.
3. To establish his case, claimant has examined himself as PW1 and two doctors as PWs. 2 and 3 and got marked 23 documents. On the other hand, the Insurance Company has neither examined any witness nor marked any documents. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.3,44,000/- with interest at 6% p.a. from the date of petition till the date of realization. Being aggrieved by the same, claimant has filed this appeal.
4. Sri N.Prabhuswamy, learned counsel for the appellant submits that due to the accident the appellant has suffered (a) Graced abrasion present over the chin measuring 2 x 3 cms. Skin deep, irregular in shape, aged more than 12 hours; (b) Contusion present over the chest, oval in shape, measuring 2 x 2 cms. (c) Graced abrasion present over the lateral aspect of left thigh, measuring 2 x 4 cms. aged more than 12 hours; (d) X-ray of right femur showed fracture shaft of right femur; (e) X-ray of right wrist joint showed fracture lower end of right radius; (f) X- ray of skull showed fracture of left maxilla with nasal bone.
PW3 - the doctor, who has been examined, has stated that the claimant has suffered whole body disability to the extent of 33%. But the Tribunal has taken only 25% whole body disability.
5. Secondly, learned counsel contended that due to severe injuries the claimant has suffered fracture of shaft of right femur, fracture of end of right radius and fracture of left maxilla and was in the hospital as inpatient for about 24 days. He has suffered severe pain and agony, but the Tribunal has granted only Rs.40,000/- under the head ‘pain and agony’.
6. Thirdly, he contended that the claimant has claimed the monthly income of Rs.6,000/-. But the Tribunal was not justified in coming to the conclusion that the monthly income of the claimant is only Rs.4,000/-. Even as per the chart prepared by the Lokadalat, the notional monthly income for the accident of the year 2009 is fixed at Rs.5,000/-.
7. Fourthly, he contended that the claimant had suffered grievous injuries and he has undergone surgery, as per the documents produced along with the I.A., in which it shows that for removal of implants the future medical expenses of Rs.2,25,000/- is required. But the Tribunal has awarded only Rs.25,000/- under the head ‘future medical expenses’.
8. Fifthly, due to disabilities the claimant has to suffer throughout his life. But the Tribunal has awarded only Rs.5,000/- in the category of ‘future amenities’. Therefore, he sought for enhancement of the compensation.
9. Per contra, Sri Jwala Kumar, learned counsel for the respondent – Insurance Company submits that even though records are produced to show that the whole body disability is at 33% but PWs. 3 and 4 who have been examined by the claimant are not the doctors who treated the claimant.
10. Secondly, he contends that the injuries suffered by the claimant are not grievous in nature. Therefore, the Tribunal has rightly awarded compensation under the head ‘pain and agony’.
11. Thirdly, as far as the income of the claimant is concerned, he submits that the claimant has not produced any documents to establish his income as Rs.6,000/-. Therefore, the Tribunal as rightly assessed the income of the claimant at Rs.4,000/- per month.
12. Fourthly, as regards to the ‘future medical expenses’ learned counsel submits that even though he has produced the documents from the Hospital, neither PW2 nor PW3 have stated anything about the future medical expenses. Therefore, he sought for dismissal of the appeal.
13. Heard learned counsel for the parties and perused the records.
14. It is not in dispute that the claimant suffered injuries due to the accident on 19.09.2008. Due to that accident he has suffered grievous injuries as referred to above. The claimant has undergone treatment for the period from 19.09.2008 to 11.10.2008. The injuries are grievous in nature. Therefore, the Tribunal is not justified in awarding only Rs.40,000/- in the category of ‘pain and suffering’. This Court is of the opinion that in the said category the amount awarded has to be enhanced from Rs.40,000/- to Rs.60,000/-.
15. In the category of ‘loss of future income’ is concerned, even though the claimant has claimed his monthly income as Rs.6,000/-, he has not produced any documents. But in catena of decisions, this Court is following the chart prepared by the Lok Adalat for assessing the notional income. As per the chart, for the accident of the year 2009 the income is fixed at Rs.5,000/-. Accordingly, the income of the claimant has to be taken a Rs.5,000/-. Hence, the future loss of income is assessed as under:
Rs.5,000 x 12 x 16 x 25 = Rs.2,40,000/-.
16. In the category of ‘future amenities’ is concerned, claimant has suffered severe injuries and there is a whole body disability at 25%. The claimant has to suffer the disability throughout his life. Therefore, the compensation awarded by the Tribunal in the category of ‘future amenities’ is on the lower side. Hence, the same is enhanced from Rs.5,000/- to Rs.30,000/-.
17. In view of the enhancement of the monthly income of the claimant from Rs.4,000/- to Rs.5,000/- per month, the compensation awarded in the category of ‘loss of income during laid up period’ is enhanced from Rs.24,000/- to Rs.30,000/-.
18. In the category of ‘future medical expenses’ is concerned, the claimant has examined two doctors as PWs. 2 and 3, but the doctors have not mentioned anything regarding future medical expenses. But, on a perusal of the wound certificate produced by the claimant subsequently by filing I.A. for production of additional documents, shows that the claimant requires to undergo the surgeries for removal of implants. Under these circumstances, the compensation awarded by the Tribunal at Rs.25,000/- on the said head is on the lower side and it requires to be enhanced to Rs.60,000/-.
19. The award passed by the Tribunal, dated 20.08.2011, is modified as under:
expenses 20. The Insurance Company is directed to deposit the enhanced compensation amount along with an interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of six weeks from today. The amount so deposited by the Insurance Company shall be disbursed to the claimant, after due verification of his identity.
With the above modifications the appeal is allowed in part.
Sd/- JUDGE Cm/-