IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA MISCELLANEOUS FIRST APPEAL NO. 814 OF 2016 BETWEEN:
Sri. Keshava Karvi, S/o Narayana Karvi, Aged about 34 years, R/at. Madikal, Uppunda Village, Kundapura Taluk, Ududpi District – 576 201.
(By Sri. Nagaraja Hegde, Advocate) …Appellant AND:
1. Damodara Kharvi, S/o. Rama Kharvi, Aged about 29 years, R/at Buknimane, Madikal, Uppunda Village, Kundapura Taluk, Udupi District – 576 201.
2. Nagaraj Kharvi, S/o Narayana Kharvi, Aged about 30 years, R/at Hingaru Mane, Madikal, Uppunda Village, Kundapura Taluk, Udupi District – 576 201.
3. The New India Assurance Co. Ltd., Divisional Office, Sriram Arcade, Opp: Main Post Office, Udupi Taluk and District – 576 101. Represented by its Divisional Manager.
…Respondents (By Sri. A.M. Venkatesh for R3, Advocate R1 & R2 served unexecuted) This Miscellaneous First Appeal is filed under section 173(1) of the Motor Vehicle Act, 1989, against the judgment and award dated 04.11.2015 passed in MVC No.857/2012 on the file of the additional district and session Judge & MACT, Udupi (sitting at Kundapura), Kundapura, 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:
JUDGMENT Heard the learned counsel appearing for the parties and perused the judgment and award passed by the Tribunal.
2. Claimant aggrieved by the quantum of compensation awarded by the tribunal has preferred this appeal seeking enhancement of compensation.
3. As there is no dispute regarding ‘fracture of femur’ of left leg sustained by the claimant in a road traffic accident occurred on 02/06/2012 due to rash and negligence driving of a motor cycle bearing registration No.KA-20-EA-5993 by its rider and liability of the insurer of the vehicle, only point remains for consideration in this appeal is, “Whether compensation of Rs. 2,10,940/- awarded by the tribunal is just and reasonable or does it call for enhancement?”
4. Sri. Nagraja Hegde, learned counsel appearing for the claimant submits that quantum of compensation awarded by the tribunal is on the lower side and it is required to be enhanced. Therefore, he prays for allowing the appeal by enhancing the compensation awarded by the tribunal.
5. Whereas Sri. A.M. Venkatesh, the learned counsel appearing for the insurer of the vehicle submits that the compensation already awarded by the tribunal is just and reasonable and there is no scope for enhancement and he prays for dismissal of the appeal.
6. As per the wound certificate Ex. P3, claimant had sustained fracture of femur of left leg and it was dislocated. He underwent open surgery and internal rod was fixed and was treated for other injuries. Injuries sustained and treatment undergone by the claimant are evident from, Ex.P3 wound certificate, Ex.P6 (62 medical bills), Ex.P7 - Disability certificate, Ex. P8 - Impatient record, Ex.P9 - Xrays and supported by oral evidence of the claimant and doctor who were examined as PW1 and PW2 respectively. Dr. Dinesh Kumar Shetty, in his evidence has stated that the claimant has suffered a permanent disability of 16%.
7. Considering the nature of injury sustained by the claimant Rs.35,000/- awarded by the tribunal towards pain and suffering is on the lower side and it deserves to be enhanced by another Rs.25,000/- and is awarded Rs.60,000/- under head pain and suffering.
8. As Rs.59,500/- awarded by the tribunal towards medical expenses is as per the medical bills produced by the claimant at Ex.P6, it is just and proper and there is no scope for enhancement of compensation under this head.
9. The claimant claims to have been earning at Rs.10,000/-by working as fisherman, but no proof of income is produced. In the absence of proof of avocation and income, the Tribunal considering age of the claimant as 30 years, year of accident as 2012 and his avocation as daily wager was justified in assessing his income at Rs.7,000/- p.m. He was treated as inpatient for a period of 27 days at Chinmaya Hospital, Kundapura. Nature of injuries sustained by him would suggest that claimant must have been under rest and treatment for a period of 6 months. Therefore, a sum of Rs.42,000/- is awarded towards loss of income during laid up period.
10. PW2-doctor who treated the claimant has stated that the claimant has suffered permanent disability of 16%. But he has not stated the disability caused to limb and to the whole body separately. In the absence of such evidence disability of 10% is taken for the purpose of working out of loss of income. His income is assessed at Rs.7,000/- per month. Multiplier applicable to his age group is ‘17’. So, loss of future income would work out to Rs. 1,42,800/- (7000x12x10x17) and it is awarded as against Rs.73,440/- awarded by the tribunal.
11. Considering the nature of injuries sustained, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs.40,000/- is awarded towards loss of amenities as against Rs.15,000/- awarded by the Tribunal. A sum of Rs.15,000/- is awarded for future medical and incidental expenses as against Rs.10,000/- awarded by the Tribunal.
12. Thus, claimant is entitled for following compensation:-
13. A total sum of Rs.3,59,300/- is awarded as against Rs.210,940/- awarded by the Tribunal and claimant is entitled for an additional compensation of Rs.1,48,360/-.
14. Appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.1,48,350/- with interest at 6% p.a. from the date of claim petition till the date of realisation.
15. The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. Out of which, 70% with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 3 years and the claimant is at liberty to withdraw the interest periodically and the remaining 30% with proportionate interest shall be released in favour of the claimant immediately after deposit.
16. The Tribunal while releasing 30% of the amount is also directed to issue the fixed deposit slips, so as to enable the claimant to withdraw the deposit amount on its maturity without approaching the Tribunal once again and the Bank is also directed to release the fixed deposit amount on its maturity without insisting for any further order from the Tribunal.
No order as to cost.
SD/- JUDGE AKV