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.1415 OF 2018 (MV) BETWEEN:
SRI.MAREGOWDA H S/O. HANUMAIAH, AGED ABOUT 26 YEARS, RESIDING AT NO. 21, KAKOLU VILLAGE AND POST, HESARAGATTA HOBLI, BENGALURU NORTH TALUK, BENGALURU – 560 089 ...APPELLANT (BY SRI.GOPAL KRISHNA N, ADV.) AND:
1. NIRMALA C.V.
FATHER’S NAME NOT KNOWN, MAJOR IN AGE, HOSADURGA ROAD, HOSADURGA TALUK, CHITRADURGA DISTRICT, 2. IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD REGIONAL OFFICE, SRI. SHANTHI TOWERS, NO.141, 5TH FLOOR, III MAIN, EAST TO NGEF LAYOUT, KASTURINAGAR, BANGALORE – 560 043.
REP. BY ITS MANAGER ...RESPONDENTS (BY SRI.B PRADEEP, ADV. FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O DTD:28.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.11.2017 PASSED IN MVC NO.6129/2016 ON THE FILE OF XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, & MEMBER 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 The learned counsel for the appellant has filed memo seeking dispensation of notice to respondent No.1. Memo is taken on record. Notice to respondent No.1 dispensed with.
2. For the accidental injuries suffered in the road traffic accident that took place on 28th August 2016 when the appellant along with another was proceeding in Rajanakunte, Bangalore North on a two-wheeler bearing registration No.KA 50 K 9773, the offending vehicle car bearing registration No.KA 16 N 0336 driven by its driver in rash and negligent manner came from opposite direction and dashed against the petitioner the impact of which the appellant sustained grievous injuries. In this regard he made claim petition before the Motor Accident Claims Tribunal, Bengaluru. The Tribunal, by its Judgment and award dated 04th November 2017 passed in MVC No.6129 of 2016 awarded compensation of Rs.5,14,500/-. Being not satisfied with the compensation amount, the appellant is before this Court seeking enhancement of the Compensation.
3. The learned counsel appearing for the appellant submits that the Tribunal has erred in not awarding just compensation. He submits that the appellant was a driver by profession and he was earning Rs.15,000/- per month by that profession. The Tribunal has disbelieved the same and has assessed the income at Rs.8,000/- per month. Secondly, he submits that that though the Doctor has assessed 50% disability, but the Tribunal has taken the same at 20% which is an error. He further submits that the compensation awarded under other heads also require enhancement. Hence, he prays for suitable enhancement in compensation.
4. The learned counsel appearing for the respondent- insurer submits to dismiss the appeal. He submits that the Tribunal, after considering the oral and documentary evidence placed before it, has awarded reasonable compensation and the same does not call for interference by this Court.
5. Heard the learned counsel for the parties and gone through the judgment and award of the Tribunal. The occurrence of accident and the injuries suffered by the appellant in the accident are not in dispute. Exhibit P28 is the driving licence of the appellant. It proves that he was driver by profession. With relevance to the accident of the year 2016, this court consistently assess the income at Rs.10,000/- per month. Accordingly, the same is assessed in the instant case also.
6. In the accident, the appellant has suffered the following injuries:
(i) Crush injury over right foot with subtotal amputation at midtarsal joint;
(ii) Fracture of medial malleolus of right ankle;
(iii) Open would over right knee joint.
The said injuries are grievous in nature for which the appellant has underwent surgical procedure of drbridement; amputation of right foot and midtarsal level, open reduction, internal fixation of fracture of medial malleolus using a malleolar screw, primary debridement and closure of the open would over right knee, joint surgery and debridement with mid tarsal amputation. In this regard the Doctor PW.3 has assessed residual physical disability of 50%. Considering the nature of injury, and the evidence of doctor, I am inclined to take the disability at 30% to the whole body, instead of 20% as assessed by the Tribunal. Assessing thus, now the compensation is to be calculated for loss of future earnings. Hence, the calculation would be Rs.10,000/- x 12 x 18 x 30/100 which comes to Rs.6,48,000/-. The same is awarded as against Rs.3,46,000/- awarded by the Tribunal.
7. Considering the pain and agony underwent by the appellant and the fact that he has suffered amputation of right foot and midtarsal level, and also considering age and profession of the appellant and also taking note of the fact that the appellant has to suffer discomfort for the rest of his life, I am inclined to award another Rs.25,000/- each under the heads pain and suffering and for loss of amenities. Taking the monthly income at Rs.10,000/- and considering that the appellant might require three months rest, I am inclined to award Rs.30,000/-
towards loss of income during the laid up period including the amount of Rs.16,000/- awarded by the Tribunal. Further, Rs.10,000/- is awarded towards attendant charges. In total, the enhanced compensation would be Rs.3,76,000/-. Interest and apportionment shall be as per the order of the Tribunal.
Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn