IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.5813 OF 2017 (MV) BETWEEN:
SRI.LOKESH S/O CHANDRAPPA, AGED ABOUT 33 YEARS, R/AT NO.85, C/O SADASHIVAPPA, 1ST CROSS, ANJANANAGAR, MAGADI MAIN ROAD, VISHWANEEDAM POST, BENGALURU - 91. ... APPELLANT (BY SRI.SHRIPAD V SHASTRI, ADV. ) AND:
1. THE MANAGER IFFCO-TOKIO GEN. INS. CO. LTD., "SRI SHANTHI TOWERS", 5TH FLOOR, NO.141, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURINAGAR, BANGALORE – 560 043.
(INSURER OF OFFENDED VEHICLE- HONDA DIO BEARING REG.NO.KA-06-EU-4329) 2. MR.RAVI K M S/O. MOTAIAH, KENCHANAHALLI VILLAGE AT POST, HULIYURDURGA HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT – 572 102 (INSURER OF OFFENDED VEHICLE- HONDA DIO BEARING REG.NO.KA-06-EU-4329) ... RESPONDENTS (BY SRI.E.I.SANMATHI, ADV. FOR R1; NOTICE TO R2 IS DISPENSED WITH V/O DATED: 28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.03.2017 PASSED IN MVC NO.1076/2016 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Memo accepted. Notice to respondent No.2 dispensed with.
2. For the injuries suffered in the road traffic accident on 21st January 2016 while he was walking on the side of the road near Sangam Circle, Jayanagar, Bangalore at which time one motorcycle bearing Registration No.KA 06 EU 4329 driven by its rider in a very rash and negligent manner came in a very high speed and dashed against the appellant the impact of which the appellant suffered crush injury over the right leg both bones and other injuries all over the body. He had undergone operation with external fixture. Since he developed gangrene, his right leg below knee was amputated. The appellant made claim petition before the Motor Vehicles Accident Claims Tribunal, Bengaluru. The Tribunal vide judgment and award dated 31st March, 2017 passed in MVC No.1076 of 2016 awarded compensation of Rs.12,86,550/-. Being not satisfied with the compensation amount, the appellant is before this court seeking enhancement.
3. The learned counsel appearing for the appellant submits that the Tribunal has committed an error in not taking the income claimed in the claim petition. He submits that prior to accident the appellant was hale and healthy and was drawing Rs.15,000/- per month whereas the Tribunal has taken the income at Rs.8,500/- per month. He further submits that the compensation awarded under other heads is also meagre. Hence he prays for enhancement in the compensation.
4. The learned counsel for the respondent-Insurance supports the order of the Tribunal and submits to dismiss the appeal. He submits that in the absence of any material documents of proof for income, by applying the theory of probability, the Tribunal has taken the income at Rs.8,500/- per month and has awarded the compensation. He submits that the compensation awarded under other heads also is just and proper and does not call for any interference in this appeal.
5. Heard the learned counsel for parties and gone through the judgment and award. There is some force in the submission of the learned counsel for the appellant. While taking the notional income, the court should be more pragmatic. It has to take into consideration the factors like the place of residence, number of dependents, etc. In the instant case, the appellant is the resident of Bangalore. To feed even a small family, in a place like Bangalore a person has to earn at least Rs.300-400/- per day. If the same is taken into consideration then the amount to be awarded under the head loss of future earning would require enhancement. Further, in the instant case, the leg of the appellant has been amputated which means to say that he has to purchase prosthetic and need to maintain the same. Though the Tribunal has awarded compensation under different heads, but by considering the age of the appellant, the nature of injury and the hardship he has to undergo for the life time, the same appears to be on the lower side. The Tribunal has awarded Rs.1,00,000/- towards pain and suffering, which is enhanced to Rs.1,50,000/-. Towards loss of amenities, as against a sum of Rs.50,000/-, the same is enhanced to Rs.1,00,000/-. Loss of future income, taking the income at Rs.9,500/- and assessing the disability at 75% instead of 50%, the same comes to Rs.13,68,600/- (Rs.9,500/- x 12 x 16 x 75%), which is awarded as against Rs.8,16,000/-. No doubt the Doctor deposed 55% disability, that does not mean that the Tribunal was not empowered to independently assess the disability. In the instant case, right leg of the claimant was amputated below the knee and he was a coolie and he was using clutches. Therefore, the disability is assessed at 75%. The compensation awarded towards loss of income during laid up period is enhanced to Rs.47,500/- as against Rs.42,500/-. The compensation awarded under other heads remain unaltered. The interest on the enhanced compensation comes to around Rs.68,000/-. Total enhanced compensation comes to Rs.7,25,600/- which is rounded of to Rs.7,25,000/- globally and awarded without any interest. Apportionment and award with regard to deposit of the compensation shall be as per the award passed by the Tribunal.
The judgment and award of Tribunal stands modified. Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn