IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A.NO.7883 OF 2016 (MV I) BETWEEN:
SRI KEMPEGOWDA, AGED ABOUT 50 YEARS, SON OF LATE KYATAIAH, RESIDING AT NO.247, 6TH CROSS, VIKRAMADITHYA ROAD, LAKSHMI PURAM, BANGALORE-560 019. ... APPELLANT (BY SRI PAWADEGOWDA, ADVOCATE FOR; SRI PRATHAPA R, ADVOCATE) AND:
1. SMRITHI KRISHNA, AGED ABOUT 42 YEARS, NO.17/61,VAIKASH STREET, CHINMAYA NAGAR, STAGE-2 CHENNAI-600 092 2. ROYAL SUNDARAM ALLIANCE, REGIONAL OFFICE, NO.186,THE MANAGING/7, GROUND FLOOR, RAGHAVENDRA COMPLEX, OPP.TO BLUE DOT COURIERS, 1ST CROSS,HOSUR MAIN ROAD, WILSON GARDEN, BANGALORE-560 027. ... RESPONDENTS (BY SRI RAVI S SAMPRATHI, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.09.2016 PASSED IN MVC NO.3025/2015 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE (SCCH-11), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G NIJAGANNAVAR J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the injured claimant for seeking enhancement of compensation and for modification of the judgment and award passed in MVC No.3025/2015 dated 21.09.2016 by the MACT, Bangalore, SCCH -11 (herein after referred to as the tribunal for brevity).
2. The facts briefly stated are that on 31.5.2015 at about 7.20 a.m. the petitioner was driving his own auto rickshaw bearing registration No.KA 05 C 4764. When his vehicle was near Army Teachers College Circle, Basavanagudi a car bearing registration No.TN 10 U 7241 driven by its driver in a rash and negligent manner came in a high speed and took a right turn despite there being prohibition for taking right turn in the said circle and dashed against the auto rickshaw. Due to the impact, the appellant and two passengers in the auto were injured. The Appellant sustained grievous injuries and his auto rickshaw was also damaged. The appellant was shifted to KIMS Hospital where he took treatment as inpatient from 31.05.2015 to 09.06.2015. There was a compression fracture of L1 Vertebrae, as such he has undergone surgery. On account of grievous injuries sustained and fracture of the L1 vertebrae, the appellant being the driver of the auto rickshaw is unable to drive the vehicle. The permanent disability has resulted in loss of earning capacity. The owner and insurer of the car are liable to pay the compensation. With these assertions the claim petition was filed.
3. On service of notice the respondent No.1 did not appear before the Court and he was placed ex-parte. Respondent No.2 Insurance Company appeared through its counsel and filed its objection denying the averments made in the petition.
4. In order to prove the claim the appellant got himself examined as PW.1 and he has also examined the doctor who treated him as PW.2 and documents were marked as EXs.P1 to P30. The respondent Insurance Company has not adduced any evidence and no documents are produced on their behalf.
5. On appreciation of the oral and documentary evidence placed on record the learned tribunal has come to the conclusion that the accident was due to the rash and negligent driving of the driver of the car. The tribunal has awarded the compensation under several heads as detailed below:
6. The counsel for the appellant submitted that on account of the accident there was a compression fracture of L1 vertebrae, as a result of which he is unable to drive his auto rickshaw. Therefore, he has lost his future income and also the earning capacity. The learned Tribunal has only taken into consideration the evidence of the doctor to assess the disability as 10% to the whole body and has committed error in awarding a meager compensation of Rs.1,09,200/- which is not proper and justified. The tribunal has failed to consider the functional disability of the appellant who was the auto rickshaw driver. Even the compensation awarded under other heads are far less and disproportionate. Thus there are valid grounds for enhancement of compensation.
7. Per contra, the learned counsel representing the Insurance Company submitted that the doctor who treated the injured has clearly stated that he can perform his day to day activities and there is no evidence to show that he has become totally disabled, and he is unable to drive his auto rickshaw. In the absence of cogent evidence to prove the functional disability of the injured claimant the evidence of the doctor alone has to be relied to assess loss of earning capacity. Considering the evidence on record, the tribunal has rightly come to the conclusion that the loss of earning capacity is 10%.
8. In view of the contentions urged by the counsel on both sides, the only point that would arise for our consideration is as follows:
“Whether the claimant appellant is entitled for enhancement of compensation”?
9. The present appeal is by the injured claimant.
The respondent insurance company has not disputed or denied its liability. The main point in controversy is regarding the quantum of compensation awarded by the Tribunal towards loss of earning capacity and other heads namely, pain and suffering, loss of amenities in life and loss of income during the laid up period.
10. On re-appreciation of the evidence placed on record it is evident that the appellant who is the auto rickshaw driver has sustained the compression fracture of L1 vertebrae. No doubt the evidence of the doctor clarifies that after operation he is completely cured, but there is no specific evidence regarding his earning capacity. Considering the submission of the counsel for the appellant and the medical records we are inclined to hold that the loss of earning capacity would be 15% instead of 10% as awarded by the Tribunal. The tribunal has assessed the income of the petitioner at Rs.7,000/- p.m. But it is pertinent to note that the appellant is the owner cum driver of the auto rickshaw. Generally, the skilled workers or the drivers of auto rickshaw are likely to earn much more than the labourers. Considering this aspect the monthly income of the injured is taken at Rs.15,000/- p.m. On considering the age of the appellant which is stated to be 50 years, the multiplier applicable would be ‘13’. Thus as per necessary calculation the compensation is assessed at Rs.3,51,000/- (15,000x12x13x15%) towards loss of earning capacity and future income.
11. Considering the injuries sustained by the appellant and the fracture of L1 vertebrae, the tribunal has awarded a sum of Rs.50,000/- under the head of pain and suffering. The quantum of compensation awarded under pain and suffering appears to be quite reasonable and there is no need for interference. As far as loss of amenities in life is concerned, we are inclined to award a sum of Rs.40,000/.- as he is put to lot of suffering and inconvenience on account of the injury and the fracture of L1 vertebrae.
12. It is submitted that the appellant has spent a sum of Rs.83,500/- towards medical expenses. Considering the same the tribunal has awarded the said amount. There is no dispute as far as the medical expenses are concerned. Thus the same amount is retained. As far as incidental charges are concerned, we are inclined to award Rs.30,000/- as the claimant has spent about 2½ months in the hospital on account of the surgery undergone by him for the L1 vertebrae. Considering the period of treatment a sum of Rs.30,000/- would be justified towards incidental charges. In respect of loss of income during the laid up period, it is stated that treatment was taken for 3 months. We have taken the monthly income of the appellant at the rate of Rs.15,000/-
p.m. Due to the injuries sustained, the appellant was compelled to take medical treatment and rest for a period of three months. Considering this aspect a sum of Rs.45,000/- is awarded. Accordingly, the re-assessed compensation is as under:
13. We are of the considered view that the total compensation of Rs.5,99,500/- would be the just and fair compensation which would meet the ends of justice. The said amount is rounded off to Rs.6 lakh. The same shall carry the interest at the rate of 6% p.a. from the date of petition till the date of realization of the decreetal amount.
14. Learned counsel representing the Insurance Company submitted that the compensation awarded by the tribunal along with upto date interest is deposited before the tribunal. Learned counsel representing the appellant submitted that the said amount is not withdrawn by the claimant.
15. Considering the submissions made by both the counsel we are of the view that out of the entire compensation amount 50% of the amount along with proportionate interest shall be released to the appellant claimant and the balance 50% along with proportionate interest shall be deposited in Post Office or in any nationalized or a scheduled bank for a period of five years. He shall be entitled to draw the periodical interest to be accrued on the said deposit.
16. In the result, the appeal is partly allowed.
17. The respondent Insurance Company is directed to pay the enhanced compensation amount of Rs.2,95,800/- with upto date interest at 6% p.a. from the date of petition till the date of realization. The respondent Insurance Company shall deposit the enhanced compensation along with interest within a period of four weeks from the date of receipt of certified copy of the judgment.
Parties to bear their respective costs.
Registry to transmit the original records to the concerned tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE ykl