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.11648 OF 2012 [MV] BETWEEN SRI. NARAYANA MALEKUDIYA, AGED 52 YEARS, S/O. SRI. ITHU MALEKUDIYA, R/A ALAKE HOUSE, THANNIRUPANTHA VILLAGE AND POST, BELTHANGADY TALUK-574 211.
DAKSHINA KANNADA DIST.
... APPELLANT (BY SRI. A. KESHAVA BHAT, ADVOCATE) AND 1. SRI. ALOYSIUS J.R. FERNANDIS, MAJOR, S/O. MICHEL FERNANDES. R/AT NO.16-5-362/1, BALMATA, MANGALORE-575 001.
2. UNITED INDIA INSURANCE CO LTD, REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, BRIDGE ROAD, BALMATTA, MANGALORE-575 001.
... RESPONDENTS (BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R2, R1 SERVICE OF NOTICE IS DISPENSED WITH AS PER THE ORDER DATED 28.02.2014) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.07.2012 PASSED IN MVC NO.1340/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, BELTHANGADY, 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 seeking enhancement of compensation, wherein the Tribunal awarded a total compensation of Rs.1,36,302/- to the appellant- claimant for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for respondent No.2-Insurance Company.
3. The brief facts of the case are that on 24.01.2007, the appellant was proceeding on a motor cycle bearing registration No.KA-21-J-5681 from Puttur to Uppinangady as a pillion rider. At about 11.30 a.m., at a place called Shakthinagara, a Tata Sumo bearing registration No.KA-19-N-2237 driven by its driver came from Uppinangady side, in a rash and negligent manner and dashed against the motor cycle, on account of which, both the rider and the pillion rider of the motor cycle fell down and sustained grievous injuries. The appellant herein was taken to Adarsha Hospital, Puttur. He was admitted therein and took treatment as an in-patient for about 44 days.
4. The appellant filed a claim petition before the Tribunal, seeking a total compensation of Rs.6 Lakhs for the injuries sustained by him.
5. The Tribunal by its common judgment and award dated 21.07.2012 awarded a total compensation of Rs.1,36,302/- in so far as MVC No.1340/2007 is concerned, for the injuries sustained by the appellant- claimant herein.
6. Seeking enhancement of compensation, the learned counsel for the appellant would contend that the age of the appellant was 45 years and therefore the appropriate multiplier applicable to his age is ‘14’ and not ‘13’ as taken by the Tribunal. He would further submit that the appellant was a skilled labourer and he was working as an Operator of laterite (red stone) cutting machine and his net income was Rs.5,000/- per month and the income taken by the Tribunal at Rs.3,000/- is on the lower side. He would submit that the compensation awarded under different heads are on the lower side and accordingly, seeks to enhance the compensation.
7. Per contra, the learned counsel appearing for Respondent No.2-Insurance Company would justify the judgment and award passed by the Tribunal and seeks to dismiss the appeal.
8. The accident in question and the appellant sustaining injuries in the said accident is not in dispute. Further, the offending vehicle having been insured with Respondent No.2-Insurance Company is also not in dispute.
9. It is the contention of the learned counsel for the appellant that the appellant was aged about 45 years and therefore, the appropriate multiplier should be ‘14’. In this regard, it is seen that there is no convincing document adduced by the appellant to show that he was aged about 45 years. In the wound certificate, which is marked as Ex.P-3, the age of the appellant is shown as 46 years. Considering the same, the multiplier which is taken as ‘13’ by the tribunal is proper.
10. According to the appellant, he was working as an Operator of laterite (red stone) cutting machine and he had net income of Rs.5,000/- per month. Except the oral testimony, there is no other corroborative piece of evidence on record to substantiate the income of the appellant. However, taking into consideration the facts and circumstances of the case and the year of accident, I am of the view that Rs.4,000/- can be taken as the notional income of the appellant.
11. The doctor has opined that the appellant is having 30% disability to the particular limb. Therefore, the permanent disability to the whole body assessed by the Tribunal at 10% is proper. The appellant is therefore entitled for a total compensation of Rs.62,400/- (Rs.4,000x12x13x10/100) as against Rs.46,800/- awarded by the Tribunal towards loss of future income.
Ex.P3 – Wound Certificate reveals that the appellant sustained the following injuries :
1) Comminuted fracture upper 1/3 of the right tibia and right fibula upper 1/3.
2) Closed fracture of middle 1/3 of right femur.
3) Fracture of the Ischeal bone of hip bone.
4) Pain in chest.
The appellant was an in-patient in the hospital for about 44 days. Considering the nature of injuries, treatment taken and also the disability suffered, the compensation awarded towards ‘pain and suffering’ is enhanced from Rs.25,000/- to Rs.45,000/-. The compensation towards ‘loss of amenities’ is enhanced from Rs.10,000/- to Rs.20,000/-, ‘loss of earning during treatment’ is enhanced from Rs.4,000/- to Rs.7,000/- and the compensation towards ‘food, conveyance, nourishment and attendant charges’ is enhanced from Rs.5,000/- to Rs.10,000/-. A sum of Rs.45,102/- awarded under the head ‘medical expenses’ is unaltered. Hence, the appellant is entitled for a total compensation of Rs.1,89,502/- which is rounded off to Rs.1,90,000/- as against Rs.1,36,302/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 21.07.2012 passed by the Senior Civil Judge and MACT, Belthangady in MVC No.1340/2007 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.1,90,000/- as against Rs.1,36,302/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of receipt of a copy of this judgment.
snc Sd/- JUDGE