IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.2946/2014 (MV) BETWEEN:
SRI. NARAYANAPPA, AGED ABOUT 44 YEARS, S/O MAYIGOWDA, R/O MANGALWARPET, CHANNAPATNA TALUK, RAMANAGARAM DISTRICT-571 501.
... APPELLANT (BY SRI.RITHISH D. NAIK, ADVOCATE FOR SRI.VIVEKANANDA T.P, ADVOCATE) AND:
1. NAGARAJU, AGED: MAJOR, S/O RAMEGOWDA, RESIDING AT NO.105/1, 2ND FLOOR, 5TH MAIN ROAD, 2ND CROSS, BYATARAYANAPURA, BANGALORE-560 026.
2. IFCO TOKIYO GENERAL INSURANCE COMPANY LIMITED, NO.4, 2ND FLOOR, CRISTO COMPLEX, LAVELLE ROAD, BANGALORE-560 061. REPRESENTED BY ITS MANAGER.
…RESPONDENTS (BY SRI.E.I. SANMATHI, ADVOCATE FOR R2; NOTICE TO R1 IS D/W V/O DATED12.02.2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.10.2013 PASSED IN MVC NO.137/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGARA DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for Admission, the same is taken up for final disposal with the consent of both the learned counsel.
2. This appeal is preferred by the injured claimant seeking enhancement of compensation awarded by the Tribunal, wherein a total compensation of Rs.1,03,840/- has been awarded for the injuries sustained by him in a road traffic accident.
3. It is the case of the appellant that on 07.01.2010, at about 7 P.M, when he was walking by the side of the road on B.M. Road, a motorcyclist, by riding his motor cycle bearing registration No.KA02- EY-4666 came from Mysore side in a high speed and in a rash and negligent manner, dashed against him and on account of the same, he sustained grievous injuries. He was shifted to Channapatna Government Hospital and from there to Sanjay Gandhi Hospital for higher treatment. It is the further case of the appellant that he was earning a sum of Rs.6,000/- per month as a coolie and due to the accident, he has undergone surgery and taken treatment as inpatient and spent a huge amount towards medical expenses. It is also stated that he has suffered permanent disability and therefore, he is not in a position to work and eak out his livelihood.
4. The Tribunal after considering the oral and documentary evidence on record, awarded a total compensation of Rs.1,03,840/- with interest at the rate of 6 % per annum, from the date of petition till deposit.
5. The learned counsel for the appellant would contend that the total compensation awarded by the Tribunal is on lower side, since the Tribunal has taken only a sum of Rs.3,000/- per month as the income of the appellant and also taken 8.33 % as the disability suffered by the appellant to the whole body, contrary to the medical evidence. Accordingly, he seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
6. Per contra, learned counsel appearing for the Insurance Company/Respondent No.2 would justify the award passed by the Tribunal, contending that the same is just and reasonable and does not call for any interference and accordingly, he seeks to dismiss the appeal.
7. The accident in question involving the motorcycle bearing registration No.KA02-EY-4666 and the actionable negligence on the part of the rider of the said motorcycle, is not in dispute. The said motorcycle was insured with the 2nd respondent herein.
8. The contention of the learned counsel for the appellant is that the appellant was working as a coolie and earning a sum of Rs.6,000/- per month and therefore, the Tribunal was not justified in taking the income of the appellant at Rs.3,000/- per month. Apart from the oral testimony of the appellant, who was examined as PW.1, there are no other acceptable evidence to prove the income in support of his evidence. However, considering the avocation of the appellant and also the year of accident, the notional income of the appellant can be taken at Rs.5,500/- per month.
9. The appellant has sustained fracture of both bones (L-Leg). According to the medical evidence, he was admitted to the hospital on 7.1.2010 and discharged on 13.01.2010. PW.2 is the orthopedic surgeon. He has deposed that on 11.01.2010, under spinal anesthesia fracture of both bones on left leg was operated and fixed with interlocking nail. He examined the appellant clinically and radiologically on 30.08.2012. He has assessed the total permanent physical disability to the whole body at 25 %. It is not elicited in the cross- examination of PW.2 that the disability assessed by him is not to the whole body. The Tribunal has taken the whole body disability at 8.33 %. Considering the aforesaid evidence on record and also the injury suffered and surgery done on the appellant and also considering the avocation of the appellant, I deem it appropriate to take the whole body disability at 20 %.
10. The appellant was aged about 48 years at the time of accident as per the medical records and therefore, the appropriate multiplier is 13. Hence, the appellant is entitled for a compensation of Rs.1,28,700/- towards loss of income due to disability. A sum of Rs.5,500/- is awarded towards loss of income due to laid up period, a sum of Rs.5,000/- is awarded towards attendant, food, nourishment and conveyance charges. Compensation awarded under ‘loss of future amenities’ and towards ‘future surgeries’ are just and reasonable. A sum of Rs.40,000/- is awarded towards ‘pain and suffering’ as against Rs.20,000/- awarded by the Tribunal. Compensation of Rs.13,452/- awarded towards medical expenses is undisturbed. Hence, the appellant is entitled for a total compensation of Rs.2,22,652/- as against Rs.1,03,840/- awarded by the Tribunal.
11. Accordingly, I pass the following:
ORDER The appeal is allowed in part;
Judgment and award dated 01.10.2013 passed in MVC No.414/2016 on the file of the Court of Senior Civil Judge & J.M.F.C. & AMACT, at Channapatna, is hereby modified;
The appellant is entitled for a total compensation of Rs.2,22,652/- as against Rs.1,03,840/- awarded by the Tribunal with interest at the rate of 6 % per annum from the date of petition till the date of deposit; and Respondent No.2-Insurance Company shall deposit the entire amount within a period of four weeks from the date of receipt of copy of this order.
SD/- JUDGE cbc