IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 05TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO. 7926 OF 2013 (MV) Between:
Sri Jayaramu R. S/o. Rangaswamaiah Aged about 40 years Residing at Lakshmanappa Layout Next to Gangadhareshwara Temple Subashnagar, Nelamangala Taluk Bangalore District. ... Appellant (By Sri Shivakumar P., Advocate) And:
1. The Oriental Insurance Co. Ltd., No.44/45, Leo shopping complex Residency Road Bangalore – 560 001. Rep. by it’s Manager.
2. Sri H.T. Govind Raj S/o. Thimmappa Residing at No.896/11 12th Cross, Mahalakshmi Layout Bangalore – 560 086. … Respondents (By Sri V. Narayana Swamy, Adv. for R1 This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 12.06.2013 passed in MVC No.6648/2011 on the file of the VII Additional Small Causes Judge, MACT-3, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though this appeal is listed for admission, the same is taken up for final disposal with the consent of both the learned counsel.
2. The injured claimant in MVC No.6648/2011 has preferred this appeal seeking enhancement of compensation awarded by the Tribunal, wherein a sum of Rs.2,66,370/- has been awarded towards the injuries sustained by him in a road traffic accident.
3. The brief facts of the case are that:
On 05.09.2011 at about 10.00 p.m. the appellant was driving a car bearing registration No.KA-03-P-3513 along with one Sri Dharmegowda (petitioner in MVC No.6649/2011) on Tumakuru- Bengaluru road. When they reached near Bommanahalli Gate, a Jeep bearing registration No.KA-02-Z-2065 which was moving in front of the car, suddenly stopped near road divider without giving any signal. As a result of which, the car driven by the appellant dashed against the said jeep. Both inmates of the car sustained grievous injuries in the said accident. They were shifted to Mathrushree hospital, Nelamangala. The appellant took treatment as an inpatient for the accidental injuries sustained by him in the said hospital as well as in Tirumala hospital.
4. It is the case of the appellant that he was working as a supervisor in one Mandara Engineering Works, SRS Complex, opposite to New Krishna Saw Mill, Vishwespura, Nelamangala drawing a salary of Rs.12,000/- per month and on account of the accidental injuries, he suffered permanent disability and he has incurred loss of income etc., 5. The appellant by filing a claim petition sought for a total compensation of Rs.9,00,000/-. The Tribunal after considering the evidence and material on record, has awarded a compensation of Rs.2,66,370/- with interest at 8% per annum from the date of petition till the date of realization.
6. Seeking enhancement of compensation, the learned counsel for the appellant submitted that the Tribunal was not proper in taking the income of the appellant at Rs.5,000/- per month without properly considering the fact that the appellant was working as a Supervisor in one Mandara Engineering Works. He further submits that the Doctor has assessed the total permanent disability suffered by the appellant to the whole body at 15% and therefore, the Tribunal was not justified in assessing the disability to the whole body at 10%. 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.
7. Learned counsel appearing for respondent No.1/Insurance Company on the other hand submits that the Tribunal has awarded just and reasonable compensation and no interference is called for and accordingly, he seeks to dismiss the appeal.
8. The accident in question involving a jeep bearing registration No.KA-02-Z-2065 and the actionable negligence on the part of the driver of the said jeep is not in dispute. According to the appellant, he was working as a Supervisor in one Mandara Engineering Works and earning a sum of Rs.12,000/- per month. Apart from his oral testimony, there is no other evidence to substantiate his contention that he was earning a sum of Rs.12,000/- per month by working as a Supervisor. In the absence of the same, it cannot be held that the appellant was earning a sum of Rs.12,000/- per month. However, considering the facts and circumstances of the case and also the year of accident, the notional income of the appellant is taken as Rs.6,500/- per month.
9. The appellant has sustained the following injuries:
1. Fracture head of femur right side.
2. Sterno membrane disruption.
3. Acute complete tear of posterior cruciate ligament involving mid third.
4. Grade I/II changes in the posterior horn of medical meniscus 10. The wound certificate is marked as Ex.P5.
The appellant took treatment as inpatient from 05.09.2011 to 14.09.2011 in Mathrushree hospital and again from 26.09.2011 to 30.09.2011 at Tirumala hospital.
11. PW.5 is an Orthopedic Surgeon who has assessed the disability suffered by the appellant. He has deposed that the appellant has undergone surgeries on his fractured right femur with implants. He has assessed the disability at 45% on the right lower limb and to the whole body at 15%. He has stated that the fracture of right limb has been united. However, on examination of appellant, he found that there was difficulty in squatting/sitting, cross legged, difficulty in climbing and running and instability of right knee on walking and climbing. Considering the aforesaid medical evidence on record, I deem it proper to take the permanent disability of the appellant to the whole body at 15% as against 10% assessed by the Tribunal. The appellant was aged about 38 years at the time of accident and therefore, appropriate multiplier is 15. The appellant is therefore, entitled for a compensation of Rs.1,75,500/- (6,500 x 12 x 15 x 15/100) towards ‘Loss of future income’ on account of disability as against Rs.90,000/- awarded by the Tribunal.
12. The Tribunal has awarded a total sum of Rs.75,500/- towards ‘Pain and agony’. The same is just and reasonable. The appellant was inpatient for about 14 days. Considering the nature of injuries and disability suffered, the compensation awarded towards ‘Loss of income during the treatment period’ is enhanced from Rs.5,000/- to Rs.13,000/-. The sum awarded towards ‘Attendant charges, conveyance, food and nourishment’ is enhanced from Rs.12,500/- to Rs.25,000/-. The compensation awarded towards ‘Loss of amenities’ is enhanced from Rs.10,000/- to Rs.25,000/-. A sum of Rs.73,370/- awarded towards actual medical bills is undisturbed.
13. PW.5 has stated that the appellant may require a sum of Rs.25,000/- towards implants removal and a sum of Rs.70,000/- towards PCL re-construction cost. However, there is no sufficient evidence adduced with regard to approximate cost towards ‘Future medical expenses’. Hence, a sum of Rs.25,000/- is awarded towards ‘Future medical expenses’. The appellant is therefore, entitled for a total compensation of Rs.4,12,370/- as against Rs.2,66,370/- awarded by the Tribunal.
Accordingly, I pass the following:
O R D E R The appeal is allowed in part. Judgment and award dated 12.06.2013 passed in M.V.C.No.6648/2011 on the file of the VII Additional Small Causes Judge, MACT-3, Court of Small Causes, Bangalore is hereby modified.
The appellant is entitled for a total compensation of Rs.4,12,370/- as against Rs.2,66,370/- awarded by the Tribunal.
The enhanced compensation of Rs.1,46,000/- shall carry interest at 6% per annum from the date of the petition till the date of realization (Except for the future medical expenses).
Learned counsel for respondent No.1 is permitted to file vakalat within a period of two weeks.
Sd/- JUDGE nms