IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.1974 OF 2011 [MV] BETWEEN SRI. POOVADI @ MANI, S/O. SEMBALA, AGED ABOUT 30 YEARS, R/O. NO.D-23, 14TH CROSS, MICO LAYOUT, HONGASANDRA, BEGUR MAIN ROAD, BANGALORE-560 068. ... APPELLANT [BY SRI. SPOORTHY HEGDE NAGARAJA, ADVOCATE] AND 1. M/S. IFFCO-TOKIA GENERAL INSU. CO. LTD., BY ITS BRANCH MANAGER, NO.41, CHRISTU COMPLEX, II FLOOR, LAVELLE ROAD, BANGALORE-560 001.
2. SMT. DHANALAKSHMI, W/O. ANBALAGAN, NO.77, MALLAPPA NANJAPPA, KRISHNAPPA VENKATASWAMY LAYOUT, KORAMANGALA, BANGALORE. ... RESPONDENTS [BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R-1.
NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH V.C.O. DATED 30.01.2012.] * * * THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.01.2010 PASSED IN MVC NO.7175/2008 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant is the claimant in M.V.C. No.7175/2008 and he has preferred this appeal, seeking enhancement of compensation awarded by the Tribunal for the injuries sustained by him in a road transport accident that occurred on 11.03.2008. The Tribunal awarded a total compensation of Rs.1,49,960/- with interest at 6% p.a. from the date of the petition till the date of deposit.
2. I have heard the learned counsel for the appellant and the learned counsel for respondent No.1/insurer.
3. It is the case of the claimant that on 11.03.2008 at about 7.30 p.m., while he was proceeding on his motorcycle bearing reg. No.KA-51/J-1396 near 7th main road, B.T.M. Layout, at that time, the driver of the autorickshaw bearing reg. No.KA-03/A-9257 came in a high speed and in a rash and negligent manner and dashed against his motorcycle, as a result of which he sustained injuries. It is the further case of the claimant that he was aged about 29 years and he was earning a sum of Rs.30,000/- p.m. and on account of the injuries sustained by him, he has suffered permanent disability. The claim petition was filed seeking total compensation of Rs.15,00,000/-.
Before the Tribunal, the claimant got himself examined as P.W.1 and the doctor was examined as P.W.2. On behalf of respondent No.1, R.W.1 was examined.
The Tribunal after considering the evidence and material on record, assessed the disability sustained by the claimant to the whole body at 8% and taking the notional income as Rs.3,000/- p.m. and adopting ‘17’ as the multiplier, awarded a sum of Rs.48,960/- towards loss of future earnings due to disability. Further, the Tribunal awarded a sum of Rs.25,000/- towards pain and sufferings, Rs.15,000/- towards loss of amenities and happiness, Rs.42,000/- towards medical and incidental charges, Rs.9,000/- towards loss of earnings during the period of treatment and a sum of Rs.10,000/- towards future medical expenses and in all awarded a sum of Rs.1,49,960/-.
4. The learned counsel for the appellant submits that the claimant/appellant has sustained compound fracture of both bones of right leg upper 1/3 and compound fracture of prox pharynx of right ring finger, deformity of right leg and deformity of right ring finger. He further submits that the percentage of disability which is taken as 8% to the whole body is wholly incorrect. It is his contention that according to the doctor-P.W.2, permanent physical disability suffered by the claimant to his right leg is 10% and his right ring finger is 30% and therefore, as per the evidence of the doctor the Tribunal ought to have taken 15% disability to the whole body. It is his further contention that the income taken by the Tribunal is also on the lower side. It is also his submission that the Tribunal has only awarded Rs.25,000/- towards pain and sufferings, which is not commensurate with the injuries sustained by the claimant, the income taken by the Tribunal which is at Rs.3,000/- p.m. is also on the lower side and accordingly seeks to enhance the compensation by allowing the appeal.
On the other hand, learned counsel for respondent No.1/Insurance Company would contend that the claimant has failed to adduce any evidence with regard to proof of avocation and income and therefore, the Tribunal was justified in taking the notional income at Rs.3,000/- p.m. He has further submitted that there is nothing on record to show that there is functional or occupational disability and therefore, the Tribunal by taking into consideration the evidence of the doctor has rightly taken the disability to the whole body at 8%. The learned counsel further submits that the compensation awarded by the Tribunal is just and proper and does not call for interference and accordingly prays to dismiss the appeal.
5. That the case of the claimant is that while he was proceeding on the motorcycle on 11.03.2008 and when he reached near 7th Main Road, B.T.M. Layout, the driver of the autorickshaw bearing reg. No.KA-03/A-9057 came in a high speed and in a rash and negligent manner and dashed against his motorcycle, as a result of which he sustained grievous injuries. There is no dispute with regard to the liability of respondent No.1/Insurance Company to pay the compensation.
6. The question which is required to be considered in this appeal is as to the quantum of compensation awarded by the Tribunal and as to whether the Tribunal has awarded a just and reasonable compensation for the injuries sustained by the appellant? Whether the same needs to be modified?
7. It is the case of the claimant that he was doing building construction work and earning a sum of Rs.30,000/-
p.m. and due to the accidental injuries, he is not able to do the said work. However, with regard to the income of the claimant there is absolutely no evidence adduced by him. The Tribunal after taking into consideration the same, has taken the notional income at Rs.3,000/- p.m. In the absence of any evidence to show that the claimant was earning Rs.30,000/- p.m. as claimed by him, it is not desirable to accept the evidence of the claimant. However, considering that the accident is of the year 2008, I am of the view that the income of the claimant may be taken at Rs.4,500/- p.m. The Tribunal after considering the evidence of the doctor-
P.W.2 and considering the nature of the injuries sustained by him has taken the disability at 8% to the whole body. The permanent residual physical disability assessed by the doctor to the right leg is 10% and right ring finger is 30%. Hence, the contention of the learned counsel for the appellant that the disability to the whole body suffered by the claimant is above 15% cannot be accepted. The disability taken by the Tribunal to the whole body as 8% is just and proper. Hence towards loss of future earnings, the claimant is entitled for a sum of Rs.73,440/- [Rs.4,500 X 12 X 17 X 8%].
8. It is to be seen that the claimant has suffered grievous injuries and according to the wound certificate at Ex.P6 and discharge summary at Ex.P7, he has suffered compound fracture of both bones of right leg upper 1/3 and compound fracture of prox pharynx of right ring finger. Considering the same, the compensation of Rs.25,000/- awarded by the Tribunal towards pain and sufferings deserves to be enhanced and the same is enhanced to Rs.35,000/-.
The compensation awarded under other heads are just and reasonable and does not call for any interference.
Accordingly, the appeal is partly allowed. The impugned Judgment and Award dated 06.01.2010 passed in M.V.C. No.7175/2008 by the XVIII Additional Judge, Court of Small Causes and Member, MACT-4, Bengaluru, is modified as under:
(1) The appellant/claimant is entitled for a total compensation of Rs.1,84,440/- as against Rs.1,49,960/- awarded by the Tribunal with interest at 6% p.a. from the date of the petition till the date of deposit.
(2) Respondent No.1/Insurance Company shall deposit the said sum within a period of 4 [four] weeks from the date of receipt of a copy of this Judgment.
Sd/- JUDGE.
Ksm*