IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.11812 OF 2012 (MV) BETWEEN:
SRI. NAVEEN @ P. NAVEEN KUMAR, S/O. POOPAUL, AGED ABOUT 30 YEARS, RESIDING AT NO.357, RAMACHANDRA MOUDALIAR ROAD, MURPHY TOWN, HALASURU, BAGNALORE-560 008.
... APPELLANT (BY SRI. N. GOPALAKRISHNA, ADVOCATE) AND 1. THE MANAGING DIRECTOR, M/S. MINERVA TOURS & TRAVELS PVT. LTD., NO.25/7 & 8, MUNIBASAPPA BUILDING, LALBAGH FORT ROAD, BENGALURU-04.
2. THE IFFCO-TOKIO GENERAL INSURANCE CO. LTD., NO.41, 2ND FLOOR, CRISTU COMPLEX, LAVELLE ROAD, BENGALURU-560 001. REP:BY ITS MANAGER.
... RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R2; R1-SERVED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.08.2012 PASSED IN MVC NO.6419/2010 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-10), 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, the same is taken up for final disposal with the consent of learned counsel on both sides.
I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.2-Insurance Company.
This appeal is directed against the judgment and award dated 02.08.2012, passed by the MACT, Court of Small Causes, Bengaluru (SCCH.10) in MVC No.6419/2010.
The brief facts of the case are that on 06.05.2010 at about 3.00 a.m., the appellant and another who were standing near Bishop Cottons Boys High School, at Residency Road, Bengaluru City, waiting for the bus, at that time, a Tata Indica car bearing registration No.KA-01-D-5972 came from Richmond Circle side to go towards Cash Pharmacy side in a high speed and came to the wrong side of the road and dashed against the appellant and another person. Due to the impact, they were knocked down and sustained injuries. They were taken to Mallya Hospital for treatment.
2. The case of the appellant is that he sustained type III B compound fracture right tibia with lacerated wounds with crush wound over right leg and due to the accidental injuries, he suffered permanent disability. The Tribunal awarded a total compensation of Rs.2,87,920/- with interest at 6% per annum.
3. Seeking enhancement of compensation awarded by the Tribunal, the learned counsel appearing for the appellant would contend that the appellant was working as a Steward in a hotel and he was earning a sum of Rs.12,000/- per month. However, the Tribunal has taken the income of the appellant at Rs.4,000/- per month, which is on a lower side. He further submits that according to the medical evidence, the appellant has suffered disability to an extent of 24% to the whole body. Therefore, the Tribunal was not justified in taking the disability to the whole body at 12%. He further submits that the appellant has undergone three surgeries and he took treatment as an inpatient for about 29 days and suffering from chronic osteomyelites disease, which is incurable and he has suffered the said disease on account of the accident. Therefore, the total compensation awarded by the Tribunal is inadequate. Accordingly, he seeks to enhance the compensation by modifying the judgment and award passed by the Tribunal.
4. Per contra, the learned counsel appearing for respondent No.2-Insurance Company would contend that PW3 is not a treated doctor and therefore, his evidence can not be considered with regard to the disability suffered by the appellant. He submits that in the facts and circumstances of the case, the compensation awarded by the Tribunal is just and reasonable, which does not warrant any interference by this Court. Accordingly, seeks to dismiss the appeal.
5. The accident in question involving the Tata Indica car bearing registration No.KA-01-D-5972 and the actionable negligence on the part of its driver in causing the accident is not disputed. The said car is insured with the 2nd respondent herein.
6. It is the contention of the learned counsel for the appellant that the appellant was having an income of Rs.12,000/- per month, by working as a Steward in the hotel. However, there is no convincing evidence on record to establish that the appellant was earning a sum of Rs.12,000/- per month. The Tribunal has taken the notional income of the appellant at Rs.4,000/- per month. However, considering the facts and circumstances of the case and also the year of accident, the notional income of the appellant is assessed at Rs.5,500/- per month.
7. Though PW3 is not a treated doctor, he is an orthopedic surgeon who has examined the appellant for assessing the disability. The medical evidence on record disclose that the appellant has suffered type III B compound fracture, right tibia with lacerated wound over right ankle posterior aspect, lacerated wound over anterior aspect left leg, proximal part and abrasion and burn wound over right arm. On 03.07.2010,a surgery was conducted and external fixator done on 05.07.2010 and he was discharged on 06.07.2010. Again operation of interlocking nailing done to right tibia on 11.10.2010 and discharged on 14.10.2010.
8. PW3 deposed that on examination, he found the tenderness in right leg, knee, ankle and foot region and the appellant was having difficulty to stand, walk, bear weight on right leg, cannot sit cross legged, squat, use Indian toilet, difficulty to climb up and down the stair case. He has assessed the disability to the right lower limb at 47.6% and 24% to the whole body. The Tribunal has taken the disability to the whole body at 12%. However, considering the medical evidence on record, I deem it proper to take the disability suffered by the appellant at 16% to the whole body. The appropriate multiplier applicable to his age is 17. Therefore, the appellant is entitled for a compensation of Rs.1,79,520/- (Rs.5,500x12x17x16/10) towards loss of future income due to disability as against Rs.97,920/- awarded by the Tribunal.
9. The Tribunal has awarded a sum of Rs.50,000/- towards pain and suffering. The same is just and reasonable. The compensation of Rs.10,000/-
awarded towards loss of amenities and future discomforts is enhanced to Rs.40,000/-. A sum of Rs.10,000/- awarded towards loss of earning during the period of treatment is enhanced to Rs.20,000/-. A sum of Rs.5,000/- awarded towards future medical expenses is undisturbed. A sum of Rs.10,000/- is awarded towards attendant charges, food and nourishment and conveyance. A sum of Rs.1,15,000/- awarded towards medical expenses and other incidental charges is maintained. In all, the appellant is entitled for a total compensation of Rs.4,19,520/-, which is rounded off to Rs.4,20,000/- as against Rs.2,87,920/- awarded by the Tribunal. Accordingly, I pass the following :
ORDER The appeal is allowed in part.
The judgment and award dated 02.08.2012 passed by the 14th Addl. Judge, MACT, Court of Small Causes, Bengaluru City (SCCH-10) in MVC No.6419/2010 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.4,20,000/- as against Rs.2,87,920/- 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.
Sd/- JUDGE snc