IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.2452 OF 2014 [MV] BETWEEN Sri Krishnappa, s/o Mallanna Age 52 years, Opp:Agriculture and Coolie, No.6, Egavaaivara Palli, Gulur Hobli, Bagepalli Taluq, Chikkaballapura District – 562 101. ... Appellant [By Smt.Sunitha B H, Advocate] AND 1. Smt.Nanjamma w/o.Marappa Malakacheruva Palli Gulur (Post), Bagepalli Taluq, Chikkaballapura District – 562 101.
2. The Manager ICICI Lombard General Insurance Co., Ltd., No.89, 2nd Floor, PVR Complex, Hosur Main Road, Madivala Koramangala Bangalore-560 068. ... Respondents [By Sri H N Keshavaprashanth, Advocate for R2, R1 – service of notice d/w v/c/o dtd.28.10.2015) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 5.9.2013 passed in MVC No.1367/2012 on the file of XVIII Additional Judge Court of Small Causes and MACT-V, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT Though this matter is listed for admission, the same is takenup for final disposal with the consent of both the counsel.
2. Being aggrieved by the inadequacy of compensation awarded by the Tribunal in MVC No.1367/2012 vide judgment and award dated 5.9.2013, the injured/claimant has preferred this appeal seeking enhancement of compensation.
3. It is the case of the claimant that on 19.1.2012 at about 4.10 p.m, when he was traveling on a motorcycle bearing Regn. No.AP-36/J-642, at Government High School Circle, near Gulur, Bagepalli Taluk, Chikkaballapura, a tractor bearing Regn. No.KA-40/T-
9662 came from the opposite direction with high speed and in a rash and negligent manner and dashed against the motorcycle, as a result of which, he sustained grievous injuries and shifted to the hospital and took treatment as an inpatient for a period of five days. It is the further case of the claimant that he was aged about 50 years at the time of accident and he was earning a sum of Rs.9,000/-
p.m. by doing agriculture and coolie work. On account of the accident, he suffered disability, as such, he is not able to do the work and earn as he was able to earn prior to the accident.
4. Before the Tribunal, a total compensation of Rs.8,00,000/- was sought for the injuries sustained by the claimant. On behalf of the claimant, two witnesses were examined as PWs.1 and 2 and Exs.P1 to P14 were marked. Though the claim was disputed by the Insurance Company, no evidence was let in.
5. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.1,32,780/- under the following heads:
1. Pain and sufferings - Rs.30,000/-
2. Loss of amenities & happiness - Rs.15,000/-
3. Medical and incidental charges - Rs. 3,000/-
4. Loss of earnings during the period of treatment - Rs.13,500/-
5. Loss of future earnings due to disability - Rs.71,280/-
Total Rs.1,32,780/-
6. It is the contention of the learned counsel for the appellant that the appellant was earning about Rs.9,000/- p.m. by doing agriculture and coolie work and therefore the Tribunal was not justified in taking the income as Rs.4,500/- p.m. It is further submitted that the age of the appellant was 50 years at the time of accident and therefore the multiplier applied is on the lower side. It is the further submission that according to the doctor, the appellant sustained disability at 15% to the whole body and therefore the percentage of disability taken as 12% by the Tribunal is also not correct. Accordingly, learned counsel seeks enhancement of compensation by allowing the appeal.
7. Per contra, learned counsel appearing for respondent No.2/Insurance Company would contend that the total compensation awarded in the facts and circumstances of the case is just and proper and does not call for any interference.
8. The accident in question, the involvement of tractor bearing Regn. No.KA-40/T-9662, the appellant sustaining injuries in the said accident and also the fact that the said vehicle was insured with respondent No.2 are not disputed.
9. It is the case of the appellant that he was aged about 50 years and earning a sum of Rs.9,000/- p.m. by doing agriculture and coolie work. However, to substantiate the income, apart from the testimony of the appellant, there is no other satisfactory evidence on record. However, considering that the accident is of the year 2012, I am of the view that the notional income of the appellant can be taken as Rs.7,000/- p.m. Though it is contended that the age of the appellant was 50 years, the Tribunal has considered the age as 55 years on the basis of the wound certificate at Ex.P7, which cannot be said to be erroneous. The appropriate multiplier applicable is therefore 11. PW2 – doctor has assessed the disability to the left lower limb at 29.6% and 15% to the whole body. Hence, total percentage of disability taken by the Tribunal at 12% is justified in the facts and circumstances of the case. Hence, the compensation to be awarded towards loss of future income due to disability would be Rs.1,10,880/- (7,000X12X11X12/100).
10. Appellant has sustained Type-1 open (compound) comminuted fracture of both bones (tibia and fibula) of left leg at the junction of middle and lower one third. PW2 based on the radiological examination has stated that the fracture of tibia and fibula shows malunion. Considering the nature of injuries sustained by the appellant, the compensation awarded towards pain and suffering is enhanced from Rs.30,000/- to Rs.40,000/-. The compensation awarded towards loss of amenities and happiness is enhanced from Rs.15,000/- to Rs.25,000/-. The compensation awarded towards loss of earning during the period of treatment is enhanced from Rs.13,500/- to Rs.21,000/-. The compensation awarded towards medical and incidental charges is enhanced from Rs.3,000/- to Rs.10,000/- including attendant and miscellaneous charges. Hence, appellant is entitled for a total compensation of Rs.2,06,880/- as against Rs.1,32,780/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER Appeal is allowed in part.
The judgment and award dated 5.9.2013 passed in MVC No.1367/2012 on the file of XVIII Additional Judge Court of Small Causes and MACT-V, Bangalore, is herby modified.
Appellant is entitled for a total compensation of Rs.2,06,880/- as against Rs.1,32,780/- awarded by the tribunal. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till its realization.
Respondent No.2-Insurance Company shall deposit the entire compensation within a period of four weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Bkm.