IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.5680/2013 (MV - I) BETWEEN:
SRI HANUMANTHA NAIK S/O. CHANDRA NAIK AGED ABOUT 42 YEARS OCC: AGRICULTURE R/AT THOLAHUNASHI VILLAGE DAVANAGERE TALUK & DISTRICT ... APPELLANT (BY SMT. SARITHA KULKARNI, ADVOCATE) AND:
1. SRI K.NAGARAJA S/O. LINGA NAIK AGED ABOUT 29 YEARS R/AT HOSACAMP, 7TH CROSS DAVANAGERE CITY-577 001 2. SRI B. MALLIKA S/O. BANDIGISAB NEAR DONGI PARK NITTUVALLI ROAD DAVANAGERE-577 001 3. THE MANAGER IFFCO-TOKIO GENERAL INSURANCE CO. LTD., SUDEV PLAZA, 3RD FLOOR OPP. LAKSHMI TEMPLE DAGIBANPETH HUBLI ... RESPONDENTS (BY SRI D.S.SRIDHAR, ADVOCATE FOR R3; R1 IS SERVED;
SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED 07.12.2017) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988 PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 24.07.2012 PASSED BY THE COURT OF II ADDITIONAL DISTRICT JUDGE & MACT, DAVAGERE IN MVC NO.138/2011.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T Though this appeal is posted for admission, the same is taken up for final disposal at the consent of the learned counsels appearing on both side.
2. This appeal is preferred by the injured claimant in MVC No.138/2011 on the file of II Additional District Judge and MACT at Davanagere, seeking enhancement of compensation, wherein the Tribunal by judgment and award dated 24.07.2012 awarded a total compensation of Rs.2,81,500/- with interest at the rate of 6% p.a.
3. I have heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent No.3 – Insurance Company. Respondent No.1 is served but unrepresented. Service of notice on respondent No.2 has been held sufficient.
4. It is the case of the appellant-claimant that on 13.08.2010 at about 5.45 p.m., he was going on a motorcycle bearing registration No.KA-17/EB-5596, as a pillion rider, from Tholahunase towards Davanagere and at a place near Anjaneya Mill opposite to Sri. Basaveshwara Higher Primary School, Bada-Santhebennur Road, a Bajaj Auto Rickshaw bearing No.KA-17/A-3009, which was driven by its driver – 1st respondent herein, came in a high speed and in a rash and negligent manner and dashed against the motorcycle and caused the accident, as a result, he along with the rider fell on the road and sustained injuries all over the body. He was shifted to S.S. High Tech Hospital at Davanagere and he was treated for the grievous injuries sustained by him as an impatient from 13.08.2010 to 28.09.2010. It is his further case that he was aged 40 years and earning Rs.8,000/- per month as an agriculturist and in view of the disability sustained on account of the accident, he is deprived of earning as he is unable to do any work.
5. The appellant herein filed a Claim Petition claiming compensation of Rs.9,00,000/- towards the injuries sustained and the disability suffered on account of such injuries. The Tribunal, by its judgment and award dated 24.07.2012 passed in MVC No.138/2011, was pleased to award a total compensation of Rs.2,81,500/- with interest thereon at the rate of 6% p.a. from the date of petition till the date of deposit or its recovery. The respondents before the tribunal were held jointly and severally liable to pay the compensation.
6. The learned counsel appearing for the appellant submitted that on account of the accident, he sustained multiple fractures and he has undergone operation and he was an inpatient in the hospital for 45 days. The injuries suffered by him has directly affected the avocation of the appellant and in view of the nature of injuries and the period of treatment taken by him, the Tribunal erred in awarding a meager sum of Rs.20,000/- towards ‘Pain and Sufferings’ and also the compensation awarded under the other heads namely towards ‘loss of amenities’ and towards ‘incidental charges’ are insufficient. It is further submitted that the Tribunal has taken Rs.4,500/- per month as the income, which is also on the lower side, in view of the avocation pleaded and established by the appellant and accordingly, seeks enhancement of compensation.
7. Per contra, the learned counsel appearing for the respondent No.3-Insurance Company vehemently contended that the Tribunal has considered the avocation of the appellant and since the appellant has failed to establish the income, a sum of Rs.4500/- is taken as the income of the appellant, which is just and proper. He would further contend that according to the Doctor-PW.4, the claimant has suffered disability to the extent of 45% to 50% to particular part of the body and therefore, he submits that the extent of disability taken by the Tribunal at 25% is not proper, on the other hand, the Tribunal ought to have taken 1/3rd of the same which comes to 15% to 17%. Therefore, he submits that there is no interference called for and seeks to dismiss the appeal.
8. There is no dispute with regard to the injuries sustained by the appellant/claimant in the accident which occurred on 13.08.2010 involving the Auto Rickshaw bearing No. KA 17/A – 3009. The said vehicle was covered under an Insurance Policy issued by the 3rd respondent herein which is also not in dispute. A perusal of the material on record discloses that the appellant, on account of the accident, sustained fractures to right patella, fingers of right hand, comminuted displaced fracture of lower end of right tibia and fibula. For the said injuries, he has taken treatment as inpatient in S.S. High Tech Hospital at Davanagere. It is the submission of the learned counsel for the appellant that earlier to the accident, the claimant was earning a sum of Rs.8,000/- per month by doing agricultural work. The appellant who is examined as PW.1 had deposed that he was earning Rs.8,000/- per month and he was an agriculturist and also an auto-driver and after the accident, in view of the permanent disability, he is not able to do such cultivating, crafting and manual work.
9. The accident is of the year of 2010. This Court has been consistently taking the income in respect of the accident occurred between 2010-2011 at Rs.5,500/- to Rs.6,500/-. Considering the nature of evidence on record, I deem it proper to take the income of the appellant as Rs.6,000/- per month as against Rs.4,500/- taken by the Tribunal.
10. It is not disputed that the appellant sustained in all six injuries as per the wound certificate at Ex.P.4. Injuries No.1 to 3 are simple in nature. Injury No.4 is comminuted displaced fracture of lower end of right tibia and fibula, fracture of right 4th, 5th fingers, fracture of 1st Metacarpal and there was another fracture of right Patella.
11. Ex.P.46 is the disability certificate issued by PW.4. Considering the nature of injuries and the fractures sustained by the appellant herein, the compensation awarded in a sum of Rs.20,000/- on the head of ‘Pain and Sufferings’ is on the lower side. Accordingly, the compensation under the head of ‘pain and sufferings’ is enhanced to Rs.50,000/-. The appellant was taking treatment as inpatient for about three months and therefore, the compensation towards the ‘laid up period’ is enhanced from Rs.13,500/- to Rs.18,000/-.
12. It is the contention of the learned counsel appearing for the respondent No.3 that the appellant sustained 45-50% disability to particular part of the body. Therefore, disability of 25% to the whole body assessed by the Tribunal for assessing ‘loss of future earning’ is on the higher side. Considering the nature of injuries sustained by the appellant and also the avocation of the appellant, I do not find that the disability at 25% taken by the Tribunal is on the higher side. The Tribunal has awarded Rs.1,89,000/- under the head of loss of future earning by taking the income of the injured at Rs.4,500/-. Since the income of the injured is taken at Rs.6,000/- and the appropriate multiples being 14, the loss of future earning comes to Rs.2,52,000/- (Rs.6,000/- x 12 x 14 = 10,08,000/- x 25% = 2,52,000/-). In so far as the compensation awarded under other heads are concerned, the Tribunal has awarded a sum of Rs.39,000/- towards medical expenses and Rs.10,000/- on the head of ‘Loss of Amenities’. Sum of Rupees 10,000/- under the head of nutritious food and other miscellaneous expenses. The same is awarded after considering the evidence and material on record. Hence, no interference is called for . The appellant/claimant is therefore entitle for a total compensation of Rs.3,79,000/-.
Accordingly, I pass the following:
ORDER The appeal is partly allowed.
The judgment and award dated 24.07.2012 passed in MVC No.138/2011 on the file of the Court of II Additional District Judge and MACT at Davanagere is hereby modified.
The total compensation of Rs.2,81,500/- awarded by the Tribunal is enhanced to Rs.3,79,000/-with interest at 6% p.a. from the date of petition till the date of deposit.
The respondent No.3 is directed to deposit the compensation awarded within a period of four weeks from the date of receipt of a copy of this order.
Sd/- JUDGE PYR