IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.11076/2012 (MV) BETWEEN: SRINIVASA SON OF LATE VENKATARAMANAPPA AGED ABOUT 22 YEARS RESIDENT OF RAYANAKALLU MANCHENAHALLI HOBLI GOWRIBIDANUR TALUK CHKKABALLAPURA DISTRICT. … APPELLANT (BY SRI. H.J. ANANDA, ADV.) AND:
1. SRI. K.B. RAMESH SON OF BETTAIAH AGED ABOUT 48 YEARS NO.1123, 7TH MAIN, 10TH D CROSS 2ND STAGE, WOC ROAD MAHALAXMIPURAM BENGALURU-560 086.
2. THE MANAGER THE UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD.
SITUATED AT NO.7/3, 2ND FLOOR KVD TOWERS OLD MADRAS ROAD 100 FEET RING ROAD INDIRANAGAR BENGALURU-560 038. ... RESPONDENTS (BY SRI. NINGE GOWDA, ADV. FOR R1 SRI. RAVI S. SAMPRATHI, ADV. FOR R2) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.01.2010 PASSED IN MVC.NO.5040/2010 ON THE FILE OF THE VIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-5, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant challenging the judgment and award passed in M.V.C.No.5040 of 2010 dated 11.02.2010 on the file of Motor Accident Claims Tribunal-V, Court of Small Causes, Bengaluru City challenging the quantum of compensation awarded in a sum of Rs.2,64,800/- with interest at the rate of 6% per annum(except future medical expenses) from the date of petition till the deposit.
Brief facts of the case:
2. It is the case of the petitioner that on 23.06.2010 at about 3.00 pm., when he was riding a motor cycle from Muddenahalli Malekote road near Chikkarayappanahalli, the driver of the Tipper lorry bearing registration No.KA-02-D-161 came in a rash and negligent manner and dashed against him and as a result, he sustained grievous injuries. Hence, filed a claim petition before the tribunal. The injuries sustained by the petitioner are as follows:
1. Compound fracture of both bones right leg 2. Closed fracture of right femur 3. Distal pole patella fracture 4. Bony avulsion injury of lateral collateral ligament of right knee.
3. The petitioner, in order to substantiate his claim examined himself as P.W.1 and got marked the documents Exs.P1 to P17. He also examined the doctor as P.W.2 and one witness as P.W.3. On the other hand, the respondent No.1 examined himself as R.W.1 and got marked the documents Exs.R1 to R4. The tribunal, after considering both oral and documentary evidence, awarded a compensation of Rs.2,64,800/- with interest at the rate of 6% per annum. Being aggrieved by the same, the appellant has preferred this appeal.
4. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal in his oral argument would contend that the compensation awarded by the tribunal in all the heads are meager and not just and reasonable. Hence, it requires interference of this Court.
5. Per contra, learned counsel appearing for the respondents would contend that the appellant has not produced any documentary proof with regard to his avocation and income and the Court below has taken note of both oral and documentary evidence and has awarded just and reasonable compensation and the same does not require interference of this Court.
6. Having heard the arguments of learned counsel for the appellant and also the learned counsel for the respondents, the points that arise for consideration are:
1. Whether the Court below has committed an error in not awarding just and reasonable compensation and whether it requires interference of this Court?
2. What order?
Point Nos.1 and 2:
7. The present appeal is filed challenging the quantum of compensation awarded by the tribunal. It is evident that the claimant has suffered grievous injuries in the road traffic accident stated supra and there is no dispute with regard to the accident and also the liability. Hence, the only question before this Court is with regard to awarding just and reasonable compensation.
8. Having taken note of the nature of injuries sustained by the appellant, it is evident that the Court below has awarded a sum of Rs.35,000/- towards ‘pain and agony’. Considering the nature and gravity of the injuries sustained by the appellant/claimant, the same is very meager and it requires enhancement. Hence, an amount of Rs.60,000/- is awarded as against Rs.35,000/-.
9. The tribunal has awarded a sum of Rs.85,000/- towards ‘medical expenses’ considering the medical bills for a sum of Rs.75,000/- after adding an amount of Rs.10,000/- towards conveyance, food, nourishment and attendant charges. The material discloses that the claimant was inpatient for a period of 28 days. Having considered the same, the tribunal has awarded a sum of Rs.10,000/- towards conveyance, food, nourishment and attendant charges, which is very meager. Since, the claimant was in the hospital for a period of 28 days, at least, the tribunal ought to have taken the same as Rs.30,000/- in stead of Rs.10,000/-. Hence, an amount of Rs.1,05,000/- (Rs.75,000/- + Rs.30,000/-) is awarded towards ‘medical expenses’.
10. The tribunal has awarded a sum of Rs.15,000/- towards ‘loss of income’. Having considered the nature of injuries and the fact that the claimant was in hospital for a period of 28 days, the ‘loss of income’ awarded by the tribunal also appears to be on the lower side. Hence, it requires to be enhanced. Taking into consideration the multiple fractures sustained by the claimant which requires time for uniting the fracture and healing, it is appropriate to take five months salary at Rs.5,500/- per month and award an amount of Rs.27,500/- towards ‘loss of income’.
11. The tribunal has awarded a sum of Rs.64,800/- towards ‘loss of future earning’. The doctor, who has been examined before the tribunal has assessed disability at 56.8% to the light lower limb and 28% to the whole body. Having considered the evidence of the doctor, the tribunal has restricted the disability to 10% and the same is not in consonance with the evidence of the doctor. Therefore, it requires enhancement. Considering the multiple fractures and the injuries sustained by the claimant and the disability assessed by the doctor at 56.8%, the tribunal has erred in taking the disability only at 10% and it has to be taken as 1/3 which comes around 19% and the same is rounded off as 20%. Hence, taking the disability as 20% and the monthly income of the claimant at Rs.5,500/- per month since the accident is of the year 2010 and applying the relevant multiplier as ‘18’ since the claimant was aged about 20 years as on the date of the accident, an amount of Rs.2,37,600/-
(Rs.5,500 x 12 x 18 x 20 / 100) is awarded towards ‘loss of future earning’.
12. The tribunal has awarded a sum of Rs.30,000/- towards ‘loss of amenities and unhappiness’. It is to be noted that the claimant was aged about 20 years as on the date of the accident and he has to lead rest of his life with the disability. Hence, an amount of Rs.40,000/- is awarded towards ‘loss of amenities and unhappiness’.
13. The tribunal has awarded a sum of Rs.10,000/- towards future medical expenses. The records would disclose that the claimant has to undergo operations for removal of implants from femur and tibia which are in different sides. Hence, the tribunal has committed an error in awarding a sum of Rs.10,000/- and hence a sum of Rs.40,000/- is awarded towards ‘future medical expenses’.
14. The tribunal has awarded a amount of Rs.25,000/- towards ‘loss of marriage prospectus’. Taking into consideration the fact that the claimant is aged about 20 years and taking the disability at 20%, reconsidering the evidence of the doctor, the amount awarded under the head ‘loss of marriage prospectus’ is on the lower side. Hence, an amount of Rs.50,000/- is awarded as towards ‘loss of marriage prospectus’.
15. Having reconsidered the compensation awarded by the tribunal on different heads, it is evident that the tribunal has committed an error in not awarding just and reasonable compensation. Hence, the judgment and award passed by the tribunal requires to be modified and accordingly, the same is modified.
16. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award passed in M.V.C.No.5040 of 2010 dated 11.02.2010 on the file of Motor Accident Claims Tribunal-V, Court of Small Causes, Bengaluru City awarding a compensation in a sum of Rs.2,64,800/- is enhanced to Rs.5,60,100/- with interest at the rate of 6% per annum from the date of petition till the deposit.
(iii) It is made clear that the order of tribunal is modified to the extent of enhancing the compensation awarded by the tribunal and in all other respects, the order of the tribunal stands unaltered.
Sd/- JUDGE ST