IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.4567 OF 2013 [MV] BETWEEN SRI. NAGARAJ, S/O. HARALAPPA @ AVALAPPA, AGED ABOUT 44 YEARS, RESIDING AT, MANGALAVADA VILLAGE @ P.O., NIDAGALLU HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT. ... APPELLANT (BY SRI. P. SHIVAKUMAR, ADVOCATE) AND 1. ICICI LOMBARD GENERAL INSURANCE CO. LTD, NO.89, 2ND FLOOR, SVR COMPLEX, MADIVALA, HOSUR ROAD, BANGALORE-560 068.
REP. BY ITS MANAGER, 2. SRI. M.C. LAKSHMANA GOWDA, S/O. CHANNARAMA GOWDA M.G. RESIDING AT NO.570, 4TH CROSS, MAHALAKSHMI LAYOUT, BANGALORE-560 086.
... RESPONDENTS (BY SRI. D. MANJUNATH, ADVOCATE FOR R1, SRI. S.V. PRAKASH, ADVOCATE FOR R2) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.02.2013 PASSED IN MVC NO.2761/2012 ON THE FILE OF THE XIII ADDL SMALL CAUSES JUDGE, MEMBER, MACT, METROPOLITTIAN AREA, BANGALORE, (SCCH.NO.15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FURTHER HEARING, THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant-claimant seeking enhancement of compensation awarded by the Tribunal for the injuries sustained by him in a road traffic accident which occurred on 01.04.2012.
2. I have heard the learned counsel appearing for both the parties.
3. Brief facts of the case are that, on 01.04.2012 at about 2.00 p.m., the claimants in MVC No.2761, 2851 and 2852 of 2012 were sitting on a concrete slab on Tumkur-Bengaluru NH-4 service Road, near Subhashnagar, Nelamangala Town, at that time, a Maruthi car bearing registration No.KA-02-MF- 3316 came from Sondekoppa Circle in a rash and negligent manner and dashed against them. Due to the impact, all of them sustained grievous injuries. The appellant was shifted to Mathrushree Hospital, Nelamangala, wherein he was admitted and took treatment as an inpatient for two weeks. On account of the accident, he suffered compound comminuted fracture shaft left tibia, fracture shaft of right tibia and he underwent surgeries.
4. The appellant filed a claim petition in MVC No.2761/2012, seeking a total compensation of Rs.15 Lakhs for the injuries sustained by him.
5. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.6,09,280/- with interest at 6% per annum on Rs.5,59,280/- (excluding future medical expenses) under the following heads :
Pain and sufferings Rs. 50,000-00 Medical Expenses Rs.1,36,880-00 Loss of earning during the Laid up period Rs. 30,000-00 Loss of future earnings Rs.3,02,400-00 Loss of amenities Rs. 40,000-00 Future Medical expenses Rs. 50,000-00 Total Rs.6,09,280-00 6. Seeking enhancement of compensation, the learned counsel appearing for the appellant would submit that the appellant was an agriculturist and he used to earn a sum of Rs.20,000/- per month and therefore the income taken by the Tribunal at 6,000/- per month is on the lower side. He would further submit that the appellant has suffered 48% disability to the whole body on account of the injuries sustained by him as per the evidence of the Doctor. However, the Tribunal has taken the disability at 30% to the whole body which is not justified. He would also contend that according to the doctor – PW6, appellant has to undergo recession surgery with both grafting in left lower limb costing about Rs.30,000/- and for removal of implants in two stages each limb costs about Rs.25,000/- to Rs.30,000/- hence, the compensation of Rs.50,000/- awarded towards ‘future medical expenses’ is also not sufficient and accordingly, he seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
7. The accident in question and the involvement of the Maruthi car bearing registration No.KA-02-MF-3316 and also the fact that the said Maruthi car was insured with the 1st respondent – Insurance Company herein is not in dispute.
8. According to the appellant, he was aged about 43 years at the time of accident and he was earning a sum of Rs.20,000/- per month by doing agricultural work. However, except the oral testimony, there is no substantive piece of evidence to hold that he was earning a sum of Rs.20,000/- per month. Hence, considering that the accident took place in the year 2012, the notional income of the appellant- claimant is taken as Rs.7,000/- per month.
9. PW6 has deposed that the appellant has suffered disability of 47% to the right lower limb, 50% to the left lower limb and 48% to the whole body. He has stated that there is difficulty for the appellant in attending to his normal routine work and he walks with limp and with the help of walker and there is difficulty to sit cross leg and squat. Further, he has stated that there is non-union of left leg fracture and union of right leg with implants present in both lower limbs.
10. Considering the evidence of the doctor with regard to the disability to the particular limb, I am of the view that the functional disability of the appellant can be taken at 32% to the whole body. The appropriate multiplier applicable to his age is ‘14’. Therefore the ‘loss of future earning’ would come to Rs.3,76,320/- (7000x12x14x32/100) as against Rs.3,02,400/- awarded by the Tribunal.
11. The medical evidence on record disclose that the appellant sustained compound tibial shaft fracture, fracture shaft of right tibia and he underwent surgeries. He was inpatient for about 11 days i.e., from 01.04.2012 to 11.04.2012.
12. Considering the nature of injuries, period of treatment and disability suffered and also the fact that there was surgeries conducted and implants done to the limbs of the appellant, the compensation under the head ‘pain and suffering’ is enhanced from Rs.50,000/- to Rs.60,000/-. The compensation towards ‘loss of earning during laid up period’ is enhanced from Rs.30,000/- to Rs.35,000/-, the compensation awarded under the head ‘loss of amenities’ is enhanced from Rs.40,000/- to Rs.50,000/-.
13. PW6 has deposed that the appellant has to undergo recession surgery with both grafting in left lower limb costing about Rs.30,000/- and for removal of implants in two stages each limb costs about Rs.25,000/- to Rs.30,000/-. He has assessed the expenses at Rs.1 Lakh in this regard. The Tribunal has awarded a sum of Rs.50,000/- towards ‘future medical expenses’. However, it is observed that there is no estimation produced by the doctor with regard to the actual future medical expenses. However, considering the evidence of PW6 and since the appellant has to undergo surgeries for removal of implants, an additional sum of Rs.20,000/- is awarded towards ‘future medical expenses’. The compensation awarded under the head ‘medical expenses’ is unaltered. The appellant is entitled for a total compensation of Rs.7,28,200/- as against Rs.6,09,280/- awarded by the Tribunal, with interest at 6% per annum. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 20.02.2013 passed by the XIII Addl. Small Cause Judge and Member, MACT, Bengaluru in MVC No.2761/2012 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.7,28,200/- as against Rs.6,09,280/- awarded by the Tribunal, with interest at 6% per annum.
The enhanced compensation of Rs.1,18,920/- shall carry interest at 6% per annum from the date of petition till its realization.
The respondent no.1/insurance company shall deposit the amount within a period of 4 weeks from the date of receipt of a copy of the order.
Sd/- JUDGE snc