IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 8520 OF 2015 (MV) BETWEEN SRI. MANJUNATH .L S/O LAKSHMIPATHI AGED ABOUT 20 YEARS R/AT AMBEDKAR NAGAR WHITEFIELD BANGALORE-560066.
PERMANENT RESIDENT OF:
MADALUR, SIRA TALUK.
... APPELLANT (BY SRI. K.T. GURUDEVA PRASAD - ADVOCATE) AND 1. SRI. VIJAY KUMAR S/O NARAYANA .M SRINIVASA REDDY BUILDING ITPL MAIN RAOD, HOODI BANGALORE-560048.
2. RELIANCE GENERAL INSURANCE CO. LTD., CENTENARY BUILDING 5TH FLOOR, M. G. ROAD BANGALORE – 560 001 BY ITS MANAGER.
... RESPONDENTS (BY SRI. H. C. BETSUR – ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH VIDE COURT ORDER DATED 23.01.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.06.2015 PASSED IN MVC NO. 3735/2014 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the appellant – claimant being not satisfied with the compensation awarded by the Tribunal by its judgment and award dated 03.06.2015 in MVC No.3735/2014, seeking enhancement of compensation. The Tribunal had awarded compensation in a sum of Rs.8,51,200/- with interest at 6% from the date of petition till realization.
2. Heard the learned counsel for the appellant - injured and the learned counsel for the second respondent – Reliance General Insurance Co. Ltd.
3. The factual matrix of the appeal is that on 04.08.2014 at about 4.30 p.m. when the appellant / injured was proceeding on a motorcycle bearing Regn.No.KA-53-X-2246 as a pillion rider which was driven by one Tirumala on Whitefield Main road, when they reached near Varthur Kodi Petrol Bunk, a Container Lorry bearing Regn.No.KA-03-A-3767 which was driven in a rash and negligent manner had dashed against their motorcycle, as a result of which the appellant fell down and sustained grievous injuries. Immediately, he was shifted to Yashomathi Hospital, Bangalore, for first aid and thereafter to VIMS Hospital wherein he was treated as an in-patient and had spent Rs.3,00,000/- towards medical, conveyance, nourishment, food, transport and other charges. Hence, he filed a claim petition before the Tribunal seeking compensation.
On receipt of notice, the owner of the offending lorry – Respondent No.1 did not appear and hence was placed exparte. However, Respondent No.2 – Insurance Company appeared and filed its written statement denying the petition averments. The Insurance Company had admitted the insurance policy issued to the offending vehicle but that the liability was subject to terms and conditions of the policy. He further contended that the accident had occurred due to the sole negligence of the rider of the motor cycle and that rider did not possess valid licence to ride the said vehicle as on the said date of the accident. Further, the compensation claimed was exorbitant and it had denied the age, occupation, income, mode of accident, rash and negligent driving of the offending lorry and therefore contended that the Insurance Company was not liable to pay compensation. On all these grounds, the Insurance Company sought for dismissal of the petition filed by the appellant / petitioner for compensation.
The Tribunal, after evaluating the oral and documentary evidence held that the accident had occurred due to rash and negligence of the driver of the offending lorry and hence the Tribunal proceeded to award compensation of Rs.8,51,200/- with interest at 6 per annum from the date of petition till the date of realization and directed Respondent No.2 – Insurer to deposit the said compensation. The appellant - injured has filed this appeal seeking for enhancement of compensation.
4. Learned counsel for the appellant contends the appellant was aged 19 years as on the date of the accident and was an Electrician by profession and was earning Rs.10,000/- per month. However, the Tribunal has taken his income at just Rs.6,000/- p.m., which is very much on the lower side. Though there was no material produced to evidence his income, the accident being of the year 2014, as per the settled norms, the notional income ought to have been taken between Rs.8,000 to Rs.9,000/-.
It is the further contention of the learned counsel that PW-3 Dr. S. Ramachandra, Orthopaedic Surgeon had certified that the appellant had suffered 60% disability to his left leg. He had deposed to the effect that ‘Length of the stump of the below knee amputated left leg is about 18 cms’. Hence, it is clear that there is amputation of his left leg below knee about 18 cms. Though the Doctor has not assessed the whole body disability, the learned counsel contends that in view of 60% disability to the left leg, the whole body disability could be taken at 50% and compensation enhanced accordingly. Further, though the appellant was an in- patient for several days, the compensation awarded by the Tribunal towards ‘Pain and suffering’, ‘Nourishment, food, attendant charges’ and ‘Conveyance’ are also on the lower side and the same also require to be enhanced suitably. Hence, the learned counsel contends that taking into consideration these aspects, the compensation awarded by the Tribunal may be enhanced by this Court suitably.
5. Learned counsel for the second respondent - insurer contends that taking into consideration the injuries suffered by the appellant, his age and avocation, the Tribunal has rightly assessed the income of the injured and the percentage of disability as well and has awarded just and fair compensation under all the heads and hence, the impugned judgment and award passed by the Tribunal does not call for any interference and hence the appeal filed by the appellant may be dismissed.
6. Having heard the learned counsel for the parties, I find that the accident being of the year 2014, the income of the appellant ought to have been taken at Rs.8,500/- instead of Rs.6,000/- taken by the Tribunal. Hence, as per the settled norms, the notional income of the appellant is hereby taken at Rs.8,500/- to compute the compensation towards ‘Loss of future earning capacity’. The appellant was aged 19 years at the time of the accident and was an Electrician by procession. Hence, it would be appropriate to add 50% of his income towards future prospects. Hence, adding 50% of his income, i.e., Rs.8500/- towards future prospects, the monthly income comes to Rs.12,750/- (8500 + 4250).
Further, the Doctor has assessed the disability at 60% to the left limb, The Tribunal has erred in adopting the whole body disability at just 30%. In view of the fact that as per Exhibit P3 Wound Certificate the appellant had suffered ‘crush injury with degloving of left foot’ and due to the fact that 18 cms. of his left was amputated below the knee, I hereby consider his whole body disability at 50% in order to award compensation under the said head. Since the appellant was aged 19 years at the time of the accident, the appropriate multiplier would be ‘18’. Hence, with Rs.12,750/- as the income and disability at 50%, applying multiplier ‘18’ the compensation towards ‘Loss of future earning capacity’ is arrived at Rs.13,77,000/- (1275000 x 12 x 18 x 50/100). Further, I find that the compensation awarded by the Tribunal towards conventional heads also require to be enhanced. Hence, the compensation towards ‘Pain and suffering’ is hereby enhanced by another Rs.15,000/-, towards ‘Nourishment food, attendant charges’ the compensation is enhanced by another Rs.10,000/-, towards Conveyance the compensation is enhanced by another Rs.8,000/- and towards ‘Loss of amenities’ the compensation is enhanced by another Rs.10,000/-.
7. In view of the discussion made above and with the altered factors, the compensation is re-worked out
8. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed in part. The impugned judgment and award dated 03.06.2015 passed by the Tribunal in MVC No.3735/2014 is hereby modified. The compensation payable to the appellant / claimant is enhanced from Rs.8,51,200/- to Rs.16,88,000/-. The total enhanced compensation would come to Rs.8,36,800/-. The second respondent - Reliance General Insurance Co. Ltd., shall deposit the enhanced compensation with interest in addition to the amount already awarded by the Tribunal with interest, before the Tribunal within four weeks from the date of receipt of certified copy of this judgment. On such deposit, the same shall be disbursed to the appellant / claimant in terms of the award, on proper identification. The amount already in deposit if any, shall be adjusted.
However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Office to draw the decree accordingly.
SD/- JUDGE KS