IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25th DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.8186 of 2016 (MV) BETWEEN SRI. DYAVEGOWDA, S/O. VENKATEGOWDA, AGED ABOUT 53 YEARS, R/O. KANCHENAHALLI VILLAGE, KASABA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT-573 102.
... APPELLANT (BY SRI. MURTHY D.L., ADVOCATE) AND 1. K.M. MOHAN, S/O. JAVAREGOWDA, MAJOR, R/O. KANCHENAHALLI VILLAGE, KASABA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT-573 102.
2. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COM. LTD.
2ND FLOOR, LAKSHMI COMPLEX, OPP. B.S.N.L. BHAVAN, B.M. ROAD, HASSAN-573 201.
... RESPONDENTS (BY SRI. H.S. LINGARAJU, ADV. FOR R-2, NOTICE TO R1 DISPENSED VIDE COURT ORDER DATED 10.11.2017) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.02.2016 PASSED IN MVC NO.31/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
The claimant/appellant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.31/2009 on the file of the Court of Senior Civil Judge and MACT, Arkalgud, wherein a total compensation of Rs.1,73,200/- has been awarded for the injuries sustained by the claimant in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for Respondent No.2-Insurance Company.
3. The brief facts leading to the filing of this appeal are that, on 20.09.2008 at about 8.00 p.m., the appellant was proceeding by walk near Narasinakuppe bus stand, on the left side of the road, at that time, a motor bike bearing registration No.KA-13-L-4092 ridden by its rider in a rash and negligent manner, dashed against the appellant from his back, consequently, he sustained grievous injury all over his body and his right upper arm was fractured. He was immediately shifted to Sri. Chamarajendra Hospital, Hassan and treated as an inpatient.
4. The learned counsel for the appellant submitted that the injured-appellant was an agricultural coolie, earning a sum of Rs.8,000/- per month and on account of the accidental injuries, he has suffered permanent disability. There is deformity to his right hand and he is not able to eke out his livelihood as an agricultural coolie and therefore, he submits that the total compensation awarded by the Tribunal is on a lower side and accordingly seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
5. The learned counsel appearing for Respondent No.2-Insurance Company submitted that the appellant has not established that he was earning a sum of Rs.8,000/- per month by working as an agricultural coolie and further submits that the total compensation awarded by the Tribunal is just and reasonable and therefore, he seeks to dismiss the appeal.
6. The injuries sustained by the appellant in a road traffic accident which occurred on 20.09.2008 involving the offending motor bike bearing registration No.KA-13-L-4092 and the actionable negligence on the part of the rider of the said bike is not in dispute. The offending motor bike was insured with the 2nd respondent-Insurance Company, which is also not disputed.
7. According to the learned counsel for the appellant, the injured was earning a sum of Rs.8,000/- per month as an agricultural coolie. The Tribunal has taken the notional income of the appellant at Rs.3,000/- per month. The accident has occurred in the year 2008. Considering the facts and circumstances of the case, the notional income of the appellant is taken at Rs.4,500/- per month.
8. The appellant has sustained abnormal mobility of the right arm. He has sustained fracture of right humerus. According to the doctor-PW2, open reduction and internal fixation was done using plates and screws. The appellant has taken treatment as an inpatient for a period of 27 days i.e., from 20.09.2008 to 17.10.2008, he was discharged with an advice of doctor not to use his right upper limb for a minimum period of two months and he was put-on a plaster. PW2 has deposed that when he examined the appellant on 25.08.2012, he has observed that there is a malunion of fracture and the appellant was suffering from pain in the right upper limb with inability to lift weights and disabled from doing daily activities including bending, walking for long distance and doing labour. The movements were painful and restricted. He was advised physiotherapy. PW2 – doctor has also deposed that the appellant’s fracture failed to unite clinically and he was unable to do all acts of daily living. I have also perused Ex.P7, the photos.
9. According to the medical evidence, the x- ray showed that the fracture of humerus remains un- united with early osteoarthritis changes at the neighbouring joints and failure of implant in situ. PW2 deposed that the appellant needs another surgery for removal of implants, re-osteosynthesis, bone grafting and stabilization of the joints, which would cost around Rs.30,000/-. According to him, the physical disability with respect to the right upper limb is up to 37%. In the facts and circumstances of the case, the Tribunal has rightly considered the disability in respect of the whole body at 15%.
10. The Tribunal has awarded a sum of Rs.30,000/- towards ‘pain and suffering’ considering the injuries sustained and the disability suffered. The same is enhanced to Rs.50,000/-. The compensation of Rs.18,000/- awarded towards ‘loss of income during laid up period’ is enhanced to Rs.27,000/-. A sum of Rs.15,000/- awarded towards ‘loss of amenities, life comforts and expectancy of life’ is enhanced to Rs.50,000/-. The Tribunal has awarded a sum of Rs.70,200/- towards ‘loss of future income on account of permanent disability’. This court has assessed the notional income of the appellant at Rs.4,500/- per month. The appropriate multiplier applicable to his age is 13. Hence, the appellant is entitled for a compensation of Rs.1,05,300/- (Rs.4,500x12x13x15/100) under the said head. The compensation of Rs.40,000/- awarded towards future medical expenses, attendant, conveyance, nourishing food and other incidental expenses’ is enhanced to Rs.60,000/-. Hence, the appellant is entitled for a total compensation of Rs.2,92,300/- as against Rs.1,73,200/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 20.02.2016 passed by the Senior Civil Judge and MACT, Arkalgud, in MVC No.31/2009 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.2,92,300/- as against Rs.1,73,200/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of receipt of the copy of this judgment.
Sd/- JUDGE Snc