IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.5410/2013 (MV) BETWEEN:
Sri. Gangachikkaiah, S/o. Apayanna, Aged about 38 years, R/at Jakkasandra, Kasaba Hobli, Nelamangala Taluk, Bengaluru Rural District-562 123. ... APPELLANT (By Sri. Kalyan R., Advocate) AND:
1. H.M.Vijay Kumar, S/o. Manchegowda, Aged Major, No.85, Huchayyana Doddi, Kondapura, K.K.Pural, Ramanagara – 562 126.
2. Panner Selvam Aged major, No.224, Malaprabha Block, B-Z, National Games Housing Project, K.H.B, Koramangala, Bengaluru-560 034.
3. The Divisional Manager, National Insurance Co. Ltd., No.15-17-19, Shri. Lakshmi Complex, St. Marks Road, Bengaluru – 560 001. ... RESPONDENTS (By notice to R1 is dispensed with V/o. dated 02.06.2016; R2 is served; Sri. L. Sreekanta Rao, Advocate for R3;) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 05.04.2013 passed in MVC No.5515/2012 on the file of the XXIV Additional Small Causes Judge, 22nd ACMM, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This Appeal coming on for Further hearing this day, the Court delivered the following:
J U D G M E N T This appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal by its judgment and award dated 05.02.2013 in MVC.No.5515/2012, whereby a total compensation of Rs.3,47,800/- was awarded with interest @ 6% per annum for the injuries sustained by the appellant in a road traffic accident which occurred on 30.09.2012.
2. I have heard the learned Counsel for the appellant and the learned Counsel for Respondent No.3-Insurance Company.
3. It is the case of the claimant/appellant that on 13.08.2012, when he was riding his TVS bearing registration No.KA-52-EV-5657 near Mallarabanavadi U turn, Kasaba Hobli, Nelamangala Taluk, Bengaluru Rural District, a Santro car bearing Reg. No.KA-03-MA-4222 came in a high speed and in a rash and negligent manner and dashed against his two wheeler(TVS). On account of which, he sustained grievous injuries and he was immediately shifted to Mathrushree Hospital, Nelamangala, wherein he was admitted as inpatient for about 30 days and surgery was conducted.
4. It is the further case of the claimant that he was aged about 48 years and he was earning a sum of Rs.10,000/- per month as a coolie and also as an agriculturist. Due to the accident, he suffered permanent disability and as such, he is unable to do any work.
5. Before the Tribunal, the claimant/appellant got examined himself as PW.1 and Doctor was examined as PW-2 and Exs.P1 to P16 were marked on behalf of the appellant. Though the claim was refuted by respondent No.3-Insurance Company, however no evidence was led and no documents were produced and marked.
6. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.3,47,800/- under the following heads:
1. Pain and Sufferings Rs. 50,000/-
2 Medical Expenses Rs.1,61,000/-
3 Loss of income during the period of treatement Rs. 12,000/-
7. Seeking enhancement of compensation awarded by the Tribunal, learned Counsel for the appellant submits that the appellant was working as a coolie and also as an agriculturist and he was earning a sum of Rs.10,000/- per month. However, the Tribunal has taken the income at Rs.4,000/- per month which is on the lower side. Further, it is submitted that, according to Doctor, whole body disability is to the extent of 17%. However, the Tribunal without any basis has taken the percentage of disability for whole body at 12%. He further contended that though the medical bills were produced for Rs.2,12,062.05, the Tribunal has awarded only a sum of Rs.1,54,800/-and hence the compensation awarded towards medical expenses is also on the lower side. Accordingly, he seeks for enhancement of compensation by modifying the judgment and award passed by the Tribunal.
8. On the other hand, learned counsel appearing for respondent No.3-Insurance Company would submit that the appellant has not adduced any evidence with regard to the income. Therefore, the Tribunal is justified in taking the income at Rs.4,000/- per month. He further contended that even otherwise the income cannot be taken more than what has been provided under the Minimum Wages Act, 1948. It is his contention that the total compensation awarded by the tribunal is just and reasonable, as such no enhancement is called for. Accordingly, he seeks to dismiss the appeal.
9. The accident in question involving the Santro car bearing Reg. No.KA-03-MA-4222 which was insured with respondent No.3 herein and the appellant sustaining injuries in the said accident are not disputed. The contention of the learned counsel for the appellant is that the claimant was earning a sum of Rs.10,000/- per month and therefore income arrived at by the Tribunal is on the lower side. Except the oral evidence, the appellant has not adduced any satisfactory evidence to show that he was earning a sum of Rs.10,000/- per month by doing agricultural and coolie work. The appellant who was examined as PW1 has denied the suggestion in the cross- examination that he was not earning Rs.10,000/- per month. However, there was no suggestion put to him that he was earning wages as provided under the Minimum Wages Act. There is also no suggestion put to PW.1 that he was earning wages fixed as per the notification issued in this regard.
10. This Court has been consistently taking the notional income with regard to an accident occurred in the year 2012 as Rs.7,000/- per month. Therefore, I deem it appropriate to take the income of the appellant as Rs.7,000/- per month.
11. According to PW-2, there was deformity in angulations right forearm present when he examined the appellant on 09.03.2013. There was loss of 2nd toe in the right foot, ROM in the right foot is 45% and ROM of right forearm is 35% and he concluded that disability to the upper limb is 31%, right lower limb 22% and total body disability is 17%. He has also stated that only after bone grafting there is a chance of union of fracture. However, he has denied the suggestion that the fractures are united. Considering the evidence of Doctor, the percentage of the total body disability can be assessed at 17% to the whole body.
12. The appellant has furnished 173 medical bills and 98 prescriptions, which are marked as Ex.P8 and Ex.P10. According to the Tribunal the medical bills totally amounts to Rs.2,12,062.05/-. However, the Tribunal has awarded a sum of Rs.1,54,800/- towards medical expenses. It is seen that the total bill amount would come to Rs.2,10,907/- which is not disputed by the learned counsel for the appellant. Hence, the appellant is entitled for a sum of Rs.2,10,907/- towards medical expenses.
13. The appellant has sustained compound fracture of shaft of both bones right forearm and compound fracture of lateral fore meta-tarsal of right foot, which are considered as grievous injuries. He underwent surgery of ORIF with plate and screw and also under went surgery of wound debridement with K-wire fixation, re- flapping them on degloving injury of right foot, debridement done and also amputation of right 2nd toe done. He also underwent wound debridement of right foot with SCG. Considering the injuries sustained and disability suffered by the appellant, the sum awarded under the head of pain and agony has to be enhanced. Accordingly, the same needs to be enhanced from Rs.50,000/- to Rs.75,000/-.
14. The appellant was aged about 48 years at the time of the accident. Taking his income as Rs.7,000/- per month and considering the disability at 17% to the whole body and the proper multiplier applicable being ‘13’, the appellant/claimant is entitled for a sum of Rs.1,85,640/- (Rs.7,000/- x 12 x 17% = Rs.14,280/- x 13 = Rs.1,85,640/-) towards loss of future earning capacity.
15. The Tribunal has awarded a total sum of Rs.12,000/- towards loss of income during the period of treatment. The same needs to be enhanced from Rs.12,000/- to Rs.21,000/-.
16. The Tribunal has awarded a sum of Rs.6,200/- towards nourishment and conveyance during the period of treatment as inpatient. The same needs to be enhanced from Rs.6,200/- to Rs.10,000/-.
17. The tribunal has awarded compensation under the other heads like future medical expenses and loss of amenities, which are not disturbed and shall remain the same. In all appellant is awarded a total compensation of Rs.5,52,547/-.
18. Hence, for the foregoing reasons, I pass the following order:
i) The appeal is partly allowed.
ii) The judgment and award dated 05.04.2013 passed by the Court of XXIV Additional Small Causes Judge, MACT, Bengaluru is modified.
iii) The appellant-claimant is entitled for a total compensation of Rs.5,52,547/- with interest @ 6% p.a. from the date of petition till its deposit as against Rs.3,47,800/- awarded by the Tribunal.
iv) The interest will not be applicable to the compensation awarded by the Tribunal under the head of future medical expenses v) Respondent No.3-Insurance Company shall deposit the compensation amount within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE KTY