IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.1051 OF 2014 (MV) BETWEEN SRI. GANGADHARA @ GANGARAJU, S/O. NARAYANAPPA, AGE 31 YEARS, OCC:NIL, R/O. NO.82, SUBBAYYA PALYA, BENGALURU EAST, BANGALORE-560 033. ... APPELLANT (BY SMT. SUNITHA B.H., FOR SRI. SURESH M. LATUR, ADVOCATES) AND 1. SRI. SENTHAMARAJ RAJU, R/O. NO.22, 3RD CROSS, BML 3RD STAGE, R.R. NAGAR, BANGALORE-560 098.
2. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD, DO.NO.2, NO.3, 1ST FLOOR, 1ST CROSS, OPPOSITE KAMATH YATHRI NIVAS, KHENY BUILDING, GANDHINAGAR, BANGALORE-560 009.
... RESPONDENTS (BY SRI. K. SURESH, ADVOCATE FOR R2 R1 NOTICE DISPENSED WITH VIDE COURT ORDER DATED 03.08.2016) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.08.2013 PASSED IN MVC NO.2452/2012 ON THE FILE OF THE II ADDL. SMALL CAUSES JUDGE, XXVII ACMM, BANGALORE (SCCH-13), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL DISPOSAL, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT The injured-claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.2452/2012 wherein a total compensation of Rs.2,10,600/- has been awarded with interest at 6% per annum.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the 2nd respondent-Insurance Company.
3. The case of the claimant is that on 08.10.2008 at about 10.30 p.m., when he was proceeding on a motor cycle bearing registration No.KA-04-EX-2929 as a pillion rider and when he reached near Babusapalya, Kalyannagar, at that time, a Tata Sumo bearing registration No.KA-41-M-1580 driven by its driver in a rash and negligent manner, dashed against his bike and due to the said impact, he sustained grievous injuries, immediately he was shifted to Bowring Hospital, Bengaluru for treatment.
4. It is the further case of the claimant that he was a driver by profession and earning a sum of Rs.9,000/- per month and on account of the accident, he suffered fracture of both bones of right leg and suffered permanent disability.
5. Considering the evidence and material on record, the Tribunal awarded a total compensation of Rs.2,10,600/- with interest at 6% per annum from the date of petition till realization.
6. The learned counsel for the appellant contended that the injured was a driver and he was earning a sum of Rs.9,000/- per month and on account of the permanent disability suffered by him, he has lost his working capacity as a driver. It is submitted that the notional income taken by the Tribunal at Rs.5,000/- per month is on the lower side and also the compensation awarded under other heads are also meager. Hence, the learned counsel seeks to allow the appeal by modifying the judgment and award passed by the Tribunal.
7. Per contra, the learned counsel appearing for Respondent No.2-Insurance Company would justify the compensation awarded by the Tribunal contending that the same is just and reasonable and seeks to dismiss the appeal.
8. The accident in question and involvement of Tata Sumo bearing registration No.KA-41-M-1580 in the said accident causing injuries to the appellant and the said vehicle being insured with the 2nd respondent- Insurance Company is not in dispute.
9. It is the contention of the learned counsel for the appellant that the appellant was working as a driver and earning a sum of Rs.9,000/- per month. However, there is no satisfactory evidence regarding definite income of the claimant as on the date of the accident. The Tribunal has taken the income of the appellant as Rs.5,000/- per month. I am of the view that the same is just and reasonable in view of the fact that the accident is of the year 2008.
10. The appellant has taken treatment as an inpatient for about 17 days and he was advised to take follow up treatment. On radiological examination, the doctor stated that the fracture of right tibia shows union and fibula malunion. According to him, the claimant has suffered disability to an extent of 27.3% to the right lower limb and 13.65% to the whole body. Considering the nature of work and injury and disability suffered by the claimant, the extent of functional disability taken at 13% by the Tribunal to the whole body is also just and proper. Hence, the total compensation of Rs.1,32,600/- awarded under the head ‘loss of future earning’ does not call for any interference. The Tribunal has awarded a sum of Rs.40,000/- towards ‘pain and suffering’, a sum of Rs.3,000/- has been awarded towards medical expenses. The same are just and reasonable and the same do not call for interference.
11. However, the compensation awarded under the head ‘loss of amenities’ is enhanced from Rs.15,000/- to Rs.30,000/- and the compensation awarded under the head ‘conveyance, nourishment, food and attendant charges’ is enhanced from Rs.10,000/- to Rs.20,000/-. Hence, the total compensation awarded by the Tribunal is enhanced from Rs.2,10,600/- to Rs.2,35,600/-. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 05.08.2013 passed by the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru in MVC No.2452/2012 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.2,35,600/- as against Rs.2,10,600/- awarded by the Tribunal, with interest at 6% per annum from the date of petition till realization.
The respondent no.2/insurance company shall deposit the amount awarded within a period of 4 weeks from the date of receipt of a copy of this order.
snc Sd/- JUDGE