Next > IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO. 6489/2015 (MV) BETWEEN SRI PRASANNA KUMAR @ PRIYA S/O NAGARAJ, AGED ABOUT 33 YEARS, R/AT THYAMAGONDLU VILLAGE, POST AND HOBLI, NELAMANGALA TQ, BENGALURU RURAL DISTRICT.
(BY SRI VASANTHAPPA, ADVOCATE) AND ... APPELLANT 1. M/S IFFCO TOKIO GENERAL INSURANCE CO.LTD MOTOR CLAIMS HUB, OPP. CUPPA, KASTHURINAGAR, BANGALORE-560 043.
2. SRI ILLIYAZ KHAN S/O ROSHAN ALI, R/AT NO.914, 3RD CROSS, MADIWALA, BENGALURU-560 068.
... RESPONDENTS (BY SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R1; R2-NOTICE DISPENSED WITH V/O. DTD.02.01.2018) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.04.2015 PASSED IN MVC NO.6135/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING FOR ADMISSION ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT With the consent of learned counsel for both the parties this matter is taken up for final disposal.
2. The appeal is directed against the judgment and award dated 16.04.2015 passed in MVC No.6135/2012 on the file of the Member MACT and XX ASCJ, Bangalore wherein the claim petition filed by the appellant came to be allowed in part and compensation of Rs.8,00,000/- was ordered to be payable to the appellant/claimant by the 1st respondent together with 8% interest per annum from the date of petition till realization of the amount.
3. The incident that gave rise for initiating the proceedings before the Tribunal is that on 17.12.2011 at about 3.00 p.m., when the appellant was pedestrian proceeding near Sandhya tent, Old Madiwala, Bangalore at that time a Car bearing Registration No.KA-04/MA- 5126 came in a rash and negligent manner and dashed against the appellant/claimant, because of which he sustained grievous injuries all over the body, shifted to Ashawad Hospital and later he was shifted Victoria Hospital for first aid and later he was shifted to RVM Hospital for better treatment. As medical expenditure it is stated that he has spent Rs.2,00,000/- together with conveyance, food, transport and other charges. Furhter it was claimed by the claimant that he was a businessman, earning a sum of Rs.1,000/- per day and now he is forced to engage a maid servant for attending him.
4. The learned Member was accommodated with the oral evidence of PW1 and PW2 and documentary evidence at Exs.P1 to P15.
5. In so far as medical expenses are concerned an amount of Rs.15,000/- has been awarded. Loss of income during laid up period, Rs.40,000/- has been awarded at the rate of Rs.5,000/- per month for 8 months. Loss of income due to disability is calculated at Rs.6,12,000/- and it has been rounded up to Rs.6,10,000/-. Loss of expectation of life Rs.20,000/- has been awarded though the permanent disability is said to be to the extent of 80%. Hence, the claimant is before this court seeking for enhancement of compensation.
6. In the accident the appellant is stated to have sustained the following injuries:
1. Sutured lacerated wound about 15 x 1 cm over media aspect of right leg.
2. Sutured lacerated wound about 15 x 1 cm over anterior aspect of left leg 3. Sutured lacerated wound about 10 x 2 cms over medial aspect of left foot and a exposing render.
On examination, the PW2-Doctor has deposed that the appellant has sustained the following injuries:
1. Type IIIB open fracture both bones left leg 2. Degloving injury right leg.
3. The appellant underwent external fixation later below knee amputation left leg debridement and skin grafting and was discharged on 26.12.2011 and he took regular follow up at Victoria Hospital and on examination for disability assessment, the Doctor found the following disabilities:
1. Walks with help of clutches 2. Tenderness over left leg stump 3. Swelling of right leg with extensive scar over right leg, difficulty to squat on the floor, climb upstairs and walk on slope and 4. Below knee amputation left leg upper 1/3.
7. The appellant is deprived of squatting on the floor, upstairs or walk. On radiological examination it was seen that mere amputation of leg up to upper 1/3rd. In the circumstances the injury is considered at 60% for the purpose of assessing loss of future income.
8. Learned counsel for the claimant would submit that the disablement has been under-assessed. The life has become trauma for the claimant. For a person with such an extent of amputation of leg the life has turned out to frustration. His salary considered by the Tribunal at Rs.5,000/- per month is totally meager, since the accident occurred during the year 2011.
9. Learned counsel for the Insurer would submit that the disability has not caused impact to the level it is projected and the income has been considered sufficiently to offer solace to the injured.
10. Whatever be the application, in the circumstance a careful examination of the compensation awarded reveals that it is unreasonably low and deserves to be enhanced.
11. Insofar as the compensation awarded towards pain and suffering is concerned it is awarded at Rs.75,000/- it deserves to be enhanced to Rs.1,00,000/-. Medical expenses as against claim of the appellant, a sum of Rs.15,000/- is awarded, which is also on the lower side. It is observed that there is amputation of left leg upto 1/3rd which would be permanent disability. Further, the probability of medical expenses very often would be the order of life and post-accident period would be a frustrating one as compared to pre-accident period. Under these circumstances, I find the medical expenses and future medical expenses ought to have been awarded at Rs.1,00,000/-. Towards food, nourishment, attendant charges and transportation, the learned Member has rightly awarded Rs.20,000/-, which does not call for interference by this Court. Loss of income during laid up period at Rs.48,000/- by assessing the income of the claimant at Rs.6,000/- per month for 8 months. For calculating loss of future income the disability should have been re-considered at 80% instead of 60% assessed by the Tribunal.
12. Under these circumstances, it is necessary to observe that the monthly income is assessed at Rs.5,000/-, which I find is to be re-assessed at Rs.6,000/- per month. Disability is to be assessed as endorsed by PW2-Doctor and as well as with reference to degree of impact of amputation of the left leg. The calculation would be as under:
Rs.6,000/- x 12 x 17 x 80% = Rs.9,79,200/-
13. In so far as loss of amenities in life is concerned, the learned Member has considered at Rs.10,000/-. For amputation of leg upto 1/3rd, the loss of amenities awarded at Rs.10,000/- is un-reasonably on the lower side and it deserves to be enhanced to Rs.1,00,000/-.
14. It is mentioned as loss of disfigurement rather this head ought to have been mentioned as disfigurement of personality and appearance, which is to be quantified at Rs.25,000/- as against Rs.10,000/-.
15. Towards loss of expectation of life, Rs.20,000/- is awarded and I do not find that it requires consideration in the light of the compensation awarded above, hence claimant is not entitled for any compensation under this head.
16. Thus, the claimant is entitled for a modified compensation as under:
Sl.
No. Heads Compensation awarded by the Tribunal Modified compensation by this Court 1 Pain and Suffering Rs.75,000/- Rs.1,00,000/-
2 Medical Expenses Rs.15,000/- Rs.1,00,000/-
(including future medical expenses) 3 Food, Nourishment, Attendant charges and Transportation etc 4. Loss of earning during the laid-up period 5. Loss of amenities and loss of marriage prospectus 6. Loss of future Rs.20,000/- Rs.20,000/-
(No modification) Rs.40,000/- Rs.48,000/-
Rs.10,000/- Rs.1,00,000/-
Rs.6,10,000/- Rs.9,79,200/-
17. Further, the interest awarded at 8% per annum appears to be on the higher side, which deserves to be reduced to 6% pre annum. Accordingly it is done.
18. In the result, appeal is allowed in part.
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