IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.1800 OF 2014 (MV) BETWEEN SRI. NAGARAJU S/O HANUMANTHARAYAPPA AGED ABOUT 37 YEARS R/AT NO.18, 7TH CROSS SRIRAMPURA, BENGALURU ... APPELLANT (BY SRI.SHIVAKUMAR P., ADVOCATE) AND 1. BAJAJ ALLIANZ INSURANCE CO. LTD. NO.31, TBR TOWERS NEW MISSION ROAD NEXT TO BENGALURU STOCK EXCHANGE J.C.ROAD, BENGALURU REP. BY ITS MANAGER 2. MRS. RITA NO.232/7, 2ND BLOCK 27TH CROSS, RAJAJINAGAR BENGALURU – 560 010 ... RESPONDENTS (BY SRI. E. I. SANMATHI, ADV. FOR R1; NOTICE TO R2 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.08.2013 PASSED IN MVC NO.4345/2011 ON THE FILE OF THE VI ADDITIONAL SMALL CAUSES JUDGE AND XXXI ACMM, BENGALURU, 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 appeal is listed for admission, with the consent of learned counsel for the parties, the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 08.08.2013 rendered by the VI Addl.Judge and Member, MACT, Court of Small Causes, Bengaluru City in MVC No.4345/2011.
3. The factual matrix of the appeal is that on 10.07.2011 at about 4.00 p.m. the appellant/petitioner was riding his bike bearing Regn.No.KA-02-EA-9555 along with the pillion rider namely Karthik from Bangalore towards Kulumepalya on Bangalore Tumkur NH-4 Road slowly and cautiously. When they reached near Denso Factory at Jas toll to take ‘U’ turn towards Kulumepalya, with the indicator on, then the driver of the car bearing regn.No.KA-02-MC-9308 came from behind with high speed and in a rash and negligent manner and hit against the bike. As a result of the same, the petitioners fell down and sustained grievous injuries. After the accident petitioners were shifted to Mathrushree Hospital, Nelamangala for treatment. Prior to accident the petitioner was working as delivery boy and also he was doing gas technician work and earning Rs.12,000/- p.m. Due to the said injuries, he is not in a position to do his normal work as earlier. On all these grounds, the claim petition came to be filed by the petitioner seeking compensation.
4. After service of notice, the respondents entered appearance before the Tribunal and filed separate objection statements denying the petition averments and sought for dismissal of the claim petition.
5. Based upon the pleadings of the parties, the Tribunal framed the issues for consideration. In order to substantiate his case, appellant/petitioner got examined himself as PW.1 and got marked documents as per Exs.P1 to P14. Dr.Mruthyunjaya was examined as PW.3 and documents Exs.P21 to 23 was marked and the employer of PW.1 was examined as PW.4 and documents as per Exs.P24 to 26 were got marked. On behalf of respondents RW.1 to RW.3 were examined and no documents were marked. After hearing arguments on both sides and on appreciation of oral and documentary evidence available on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.3,15,000/- with interest at 8% p.a. only on Rs.2,90,000/- (excluding future medical expenses). It is this judgment which is under challenge by the appellant/claimant on various amongst other grounds.
6. Learned counsel for the appellant contends that the Tribunal erred in assessing the monthly of the appellant at Rs.5,000/- as against his avocation as office boy/delivery boy who was earning Rs.10,000/- per month. In this regard the employer was examined as witness and salary certificate is produced. But the Tribunal failed to consider the same. Further, the Tribunal has erred in not properly assessing the disability factor and the compensation towards loss of future earning deserves to be enhanced. He contends that the Tribunal has not awarded any compensation towards loss of amenities as against the injuries sustained and the disability suffered. It is contended that the Tribunal has erred in awarding only Rs.60,000/- towards pain and sufferings whereas the appellant has suffered grievous injuries. On all these grounds, the learned counsel for the appellant seeks for enhancement of compensation by allowing the present appeal.
7. Per contra, Sri E.I.Sanmathi, learned counsel for Respondent No.1 contends that the driver of the offending vehicle did not possess valid and effective driving license at the time of accident and further, he has not satisfied the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989,. The driver of the said vehicle was under the influence of alcohol at the time of accident. The rider of the motorcycle took ‘U’ turn without following traffic rules. Further, the compensation awarded by the Tribunal is just and proper and it does not call for interference of this Court and sought for dismissal of the appeal.
8. Having regard to the strenuous contentions as taken by learned counsel for appellant and so also, counter arguments made by learned counsel for respondent insurer, it is relevant to state that there is no dispute about the accident that had occurred due to the actionable negligence on the part of the driver of the offending car bearing Regn.No.KA-01-MC-9308. In support of his claim, documents such as Ex.P1-FIR, Ex.P2 – complaint, Ex.P3- Mahazar, Ex.P4 – wound certificate, Ex.P5-charge sheet are produced by the claimant.
9. As per the evidence of PW.1 and Ex.P4- wound certificate, the petitioner has sustained Type III B compound severely comminuted fractures both bones with displacement of right leg. The Doctor has opined that the said injury mentioned is grievous in nature. PW.3 – Orthopedic surgeon is also examined in this regard who has assessed 36% disability to the right lower limb and 12% to the whole body. He has taken treatment at various hospitals as an inpatient. It is opined that the fracture sustained by the petitioner is grievous in nature. Having regard to the nature of injuries sustained by the petitioner and the duration of treatment taken by him and the pain that he has to carry for rest of his life, I deem it appropriate to grant a sum of Rs.25,000/- towards loss of amenities as no compensation is awarded under this head.
10. The Tribunal while awarding compensation towards loss of future income on account of disability has taken Rs.5,000/- as the monthly income in the absence of proof of income. The accident is of the year 2011. As per the guidelines and norms prescribed in the Lok Adalath chart, the notional income that has to be taken for the year 2011, without there being any documentary proof is Rs.6,500/- p.m. The Tribunal has rightly assessed the disability at 12% and adopted multiplier of ‘15’. Accordingly, the compensation towards loss of future income is re-worked out as under:
Rs.6,500 x 12 x 15 x 12% = 1,40,400/-
Thus, the claimant is entitled for a sum of Rs.1,40,000/- as against Rs.1,08,000/- towards loss of future income. The enhanced compensation under this head is Rs.32,400/-
11. Having assessed the income of the petitioner at Rs.6,500/-, the loss of income during the treatment period would be Rs.26,000/- (Rs.,6,500 x 4) as against Rs.20,000/- awarded by the Tribunal. The enhanced compensation towards this head is Rs.6,000/-. However, the compensation awarded by the Tribunal under other heads appears to be just and reasonable and it does not call for any interference of this Court.
12. Thus, the appellant/claimant is entitled for enhanced compensation of Rs.63,400/- in addition to what has been awarded by the Tribunal. For the aforesaid reasons and findings, I have to proceed to pass the following:
ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.63,400/- with interest @ 6% p.a. from the date of petition, till realisation. The impugned judgment and award in MVC No.4345/2011 is modified accordingly.
Respondent-insurer shall deposit the enhanced compensation with accrued interest, before the Tribunal, within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification.
Office to draw the decree accordingly.
DKB Sd/- JUDGE