IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO. 2117 OF 2012 (MV) BETWEEN:
SRI. NARAYANASWAMY SON OF LATE VENKATARAYAPPA AGED ABOUT 53 YEARS RESIDING AT KUDUPA KUNTE THIMMANAYAKANAHALLI POST SIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT. ... APPELLANT (BY SRI. N. JAGADEESH, ADVOCATE FOR SRI. N. GOPALA KRISHNA, ADVOCATE) AND:
1. SRI. THAN SINGH SON OF ISHWAR SINGH MAJOR IN AGE RESIDING AT NO.8, MODEL TOWN NO.33, T. P. T CENTRE NEW DELHI – 110 033.
2. THE IFFCO TOKIO GENERAL INSURANCE CO LTD., NO.41, CRISTU COMPLEX 2ND FLOOR, LAVELLE ROAD BENGALURU - 560 001.
REP BY ITS MANAGER. ... RESPONDENTS (BY SRI. R. SRINIVASA, ADVOCATE FOR RESPONDENT – 2 SRI. PAVAN M.N, ADVOCATE FOR RESPONDENT – 1) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.02.2011 PASSED IN MVC NO.7546 OF 2008 ON THE FILE OF VI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU CITY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the claimant impugning the judgment and award dated 19.2.2011 in MVC No. 7546/2008 on the file of the VI Additional Judge, Court of Small Causes and MACT, Bengaluru City (for short, ‘Tribunal’). The only question raised in this appeal is whether there should be any enhancement in the compensation awarded by the Tribunal. The Tribunal has awarded a total sum of Rs.2,11,740/- under the different heads as listed hereunder:
Particulars Amount Awarded by the Tribunal 1. Pain and Sufferings Rs. 30,000 2. Food & Nourishment, Attendant Charges, Traveling Expenses and Medical Expenses 3. Loss of Future Income (4500 x 12 x 13 x 12%) Rs. 59,000 Rs. 84,240 4. Loss of Earnings Rs. 13,500 5. Loss of Amenities Rs. 15,000 6. Future Medical Expenses Rs. 10,000 Total Rs. 2,11,740 2. The learned counsel for the appellant contends that there should be an enhancement in the compensation awarded towards pain and suffering, loss of future income, loss of earning during laid up period, loss of amenities and towards future medical expenses. The claimant has suffered perforation of abdomen and the doctor has opined that he will have to undergo further surgery. Therefore, the doctor has also deposed that the appellant will have to undergo further surgery. As such, a sum of Rs.10,000/- towards future medical expenses is also on the lower side. The appellant as on the date of the accident was driving a heavy goods vehicle and he held appropriate license for that. The Tribunal has taken the notional income at Rs. 4,500/- as per the schedule for the settlement in Lok Adalath in cases of injured/deceased whose income is not established as he was not a skilled labour. Therefore, the Tribunal ought to have taken the income of the appellant at Rs.6,000/- per month. In view of the medical evidence on record, which establishes that the claimant has suffered persisting complications, the Tribunal ought to have taken 15% as the functional disability instead of 12%.
3. There is considerable force in each of the submissions by the learned counsel for the appellant. The doctor’s evidence is categorical. The doctor has deposed that not only the appellant has to undergo surgery for perforation with mesenteric tear with haemoperitonium, but also has suffered post-operative complications requiring further investigation and surgery. It is undisputed that the appellant was hospitalized for a period of 11 days and was convulsing for 3 months. In such event, a sum of Rs.30,000/- towards pain and suffering would be on the lower side and a sum of Rs.50,000/- would be more appropriate. If the appellant is able to establish that he was driving a Heavy Goods Vehicle as he has done in the present case by producing the Driving License in that regard as well as stating so in his evidence which has remained unchallenged, Rs. 6,000/- should be taken as the appropriate monthly income. The doctor has spoken about the permanent disability at 15% but considering the nature of the employment of the claimant, 15% disablement would be appropriate. Therefore, there should be consequential enhancement in loss of future income as well as loss of earning during laid up period. The Tribunal has awarded a sum of Rs.15,000/- towards loss of amenities but given the nature of injuries suffered, procedure and the evidence as regards post-operational complications that have persisted a sum of Rs.20,000/- would be more appropriate with accretion of Rs.10,000/- towards future medical expenses in addition to what is awarded. Accordingly, the appellant is entitled to a total compensation in a sum of Rs. 2,97,400/-, with an enhancement in the compensation by Rs. 85,660/-.
The appeal is allowed in part and the respondent - Insurance Company is directed to deposit the said sum of Rs. 85,660/- along with interest at the rate of 6% per annum from the date of the petition till the date of the deposit with the Tribunal within six weeks from the date of receipt of a certified copy of this judgment.
SD/- JUDGE nv