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.9523 OF 2013 (MVC) BETWEEN SRI. HANUMANTHARAJU, S/O. OBALAIAH, AGED ABOUT 26 YEARS, R/AT KAANEGODENAHALLI, KASABA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT, THE APPELLANT IS A DUMB AND DEAF, REP. BY HIS FATHER, OBALAIAH, 563 125.
... APPELLANT (BY SRI. VENUGOPAL G.M., FOR SRI. KALYAN R., ADVOCATES) AND 1. SRI. G. VENKATESH, S/O. GANGAIAH, AGED MAJOR, R/AT NO.183, ULLALA, BANGALORE-560 056.
2. THE MANAGER, ICICI LOMBARD MOTOR INSURANCE CO. LTD, NO.82, 2ND FLOOR, SVR COMPLEX, MADIVALA, HOSUR MAIN ROAD, BANGALORE-560 068.
... RESPONDENTS (BY SRI. H.C. VRUSHABENDRAIAH, ADVOCATE FOR R-2, R-1 SERVED UNREPRESENTED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.07.2013 PASSED IN MVC NO.2484/2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR DICTATION, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal in MVC no.2484/2012 on the file of the Court of the III Additional Senior Civil Judge, M.A.C.T., Bengaluru, wherein a total compensation of Rs.2,71,708/- with interest at 8% per annum, was awarded for the injuries sustained by the appellant in a road traffic accident which occurred on 03.04.2012 involving a two wheeler bearing registration No.KA-01-EU-1411.
2. I have heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for R-2/Insurance Company.
3. It is the case of the claimant that on 03.04.2012 at about 7.30 a.m., when he was walking on the left side of the Doddaballapura-Nelamangala Road, near ‘U’ turn Railway Gollahalli Colony in Nelamangala Taluk, the rider of TVS bearing registration No.KA-01-EU-1411 came in a high speed and rash and negligent manner and dashed against him, on account of which, he sustained grievous injuries. Claim petition was filed seeking a total compensation of Rs.4,50,000/-.
4. Before the Tribunal, on behalf of the claimants, PWs.1 and 2 are examined and Exs.P-1 to P-7 were got marked. The claim was disputed by the respondent-Insurance Company. However, no evidence was led and no documents were got marked on behalf of the respondents.
5. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.2,71,708/- with interest at 8% per annum from the date of petition till the date of realization, under the following heads:
PARTICULARS AMOUNT Pain and agony Rs.55,000-00 Medical Expenses Rs.11,908-00 Loss of income during laid up period, rest, nourishment and attendant charges Rs.15,000-00 Loss of future income Rs.1,45,800-00 Loss of amenities Rs.15,000-00 Conveyance Rs.4,000-00 Future medical expenses Rs.25,000-00 TOTAL Rs.2,71,708-00 6. It is the contention of the learned counsel for the appellant that the injured-claimant has suffered permanent physical disability to an extent of 28% to the whole body as per the evidence of the doctor, however, the Tribunal has taken the disability at 15% to the whole body. Therefore, he submits that the compensation awarded under the head ‘loss of future income’ is on the lower side. It is also his submission that the claimant was earning a sum of Rs.8,000/- per month by working as welder and painter and therefore, the income taken by the Tribunal at Rs.4,500/- per month is on the lower side and total compensation awarded under the head ‘loss of income during laid up period’ is also on the lower side. Hence, he seeks to allow the appeal.
7. Per contra, the learned counsel appearing for Respondent No.2-Insurance Company justified the judgment and award passed by the Tribunal and sought to dismiss the appeal.
8. The case of the claimant is that on 03.04.2012 at about 7.30 a.m., while he was walking on the left side of the road, the rider of the TVS bearing registration No.KA-01-EU-1411 came with a high speed in a rash and negligent manner and dashed against him, on account of which, he sustained injuries. The accident in question in which the appellant sustained injuries and also the vehicle involved in the accident having been insured with the 2nd respondent herein is not seriously disputed.
9. It is the case of the claimant that he was earning a sum of Rs.8,000/- per month by working as welder and painter. Apart from self serving testimony, there is no other satisfactory evidence to hold that the appellant was earning a sum of Rs.8,000/- per month However, considering the fact that the accident has occurred in the year 2012, the notional income of the appellant is taken at Rs.7,000/- per month as against Rs.4,500/- per month taken by the Tribunal.
10. It is the contention of the learned counsel for the appellant that according to the doctor-PW2, the appellant has suffered disability to an extent of 28% to the whole body. The Tribunal has taken the functional disability at 15%. In this regard, the evidence of PW2 is relevant. His evidence goes to show that on 03.04.2012, the injured-claimant was admitted to Victoria Hospital with a history of road traffic accident. PW2 was working as an Orthopedic Surgeon in the said hospital. He noticed the following injuries :
1) Type-I open fracture left Humurus 2) Fracture left femur, underwent CR and IF Humurus or and IF of femur with IL Nail on 09.04.2012.
The patient was discharged on 24.06.2012. He took regular follow up treatment at Victoria Hospital.
His evidence further discloses that he examined the patient on 15.02.2013 for disability assessment. PW2 was of the opinion that the injured suffered from permanent physical disability of 48% of the left lower limb which is about 24% to the whole body and 10% of left upper limb which is 4% of whole body and total of 28% of whole body. He has also stated that the patient has to undergo one more surgery for removal of internal implant and external fixation has to be done and if patient continues with the external fixation for the period as advised by the doctor, fracture may unite. According to PW2, the appellant sustained permanent physical disability of 48% of left lower limb and 10% of left upper limb. Taking into consideration of the evidence of doctor, the disability taken by the Tribunal at 15% is on the lower side and hence, the disability is assessed at 20% to the whole body. The claimant was aged about 25 years at the time of the accident and therefore, the appropriate multiplier to his age group is 18. Therefore, the claimant is entitled for a compensation of Rs.3,02,400/- (Rs.7,000x12x18x20/100) as against Rs.1,45,800/- awarded by the Tribunal, under the head ‘loss of future income’.
12. The compensation awarded under the head ‘loss of income during laid up period’ is enhanced from Rs.15,000/- to Rs.25,000/-. The compensation of Rs.15,000/- awarded under the head ‘loss of amenities’ and a sum of Rs.4,000/- under the head ‘conveyance charges’ is enhanced to Rs.30,000/-. The compensation awarded under all other heads are just and reasonable and no enhancement is called for. Hence, the appellant is entitled for a total compensation of Rs.4,49,308/- which is rounded off to Rs.4,50,000/-. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 04.07.2013 passed by the III Addl. Senior Civil Judge and M.A.C.T. in MVC No.2484/2012 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.4,50,000/- as against Rs.2,71,708/- awarded by the Tribunal with interest at 8% per annum, from the date of petition till the date of realization.
The Respondent No.2-Insurance Company shall deposit the amount within a period of 4 weeks from the date of the receipt of the copy of this judgment.
Sd/- JUDGE snc