IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY 2017 BEFORE THE HON’BLE MR. JUSTICE B MANOHAR MFA No.4383 OF 2012 (MV) BETWEEN:
SRI. RACHAIAH S/O SIDDIAH @ SIDDANAYAKA AGED ABOUT 40 YEARS R/AT C/O H.K.NAGARAJU HADYA, DUDDA HOBLI MANDYA TALUK & DISTRICT …APPELLANT (BY SRI.H.K.BOREGOWDA, ADVOCATE) AND:
1. D.NAGENDRA S/O.LINGAIAH MAJOR, R/AT DOOR NO.252 SWARNASANDRA, 3RD CROSS MANDYA CITY 2. THE MANAGER THE NATIONAL INSURANCE CO. LTD.
V.V.ROAD, MANDYA ... RESPONDENTS (BY SRI.H.S.LINGARAJ ADVOCATE FOR R2; R1 NOTICE D/W V.O.DT.19.11.2013) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:4.2.2010 PASSED IN MVC NO.161/2007 ON THE FILE OF ADDITIONAL CIVIL JUDGE (SR.DN) & MACT, MANDYA, 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 Appellant is the claimant, being not satisfied with the quantum of compensation awarded in the judgment and awarded dated:04.02.2010 made in MVC No.161/2007 passed by the Additional Civil Judge (Sr.Dn) and MACT, Mandya (hereinafter referred to as ‘the tribunal’ for short), filed this appeal seeking for enhancement of compensation.
2. The appellant filed a claim petition contending that on 20.10.2006, while he was traveling in a bus sitting in a seat opposite to the back side door of the bus bearing registration No.KA-19/6759 to Honnanayakanahalli village, due to the rash and negligent driving of the bus by its driver, the back side door of the bus was opened, the claimant fell down from the bus and sustained injuries all over the body. Immediately after the accident, he was shifted to Primary Health Centre, K.M.Doddi. Thereafter, he was shifted to District Hospital, Mandya. He has sustained comminuted fracture of right femur, fracture to inter trochetoir, fracture of distal radius of right hand and other injuries to the body. He has undergone surgery for the fracture of femur. He has taken treatment as an inpatient from 20.11.2006 to 21.12.2006. He claims that he has spent more than Rs.50,000/- towards medical expenses. At the time of the accident, he was aged about 35 years, doing milk vending business, running a petty shop and earning a sum of Rs.6,000/- per month. In view of the injuries sustained in the accident, he is permanently disabled to do his work which he was doing earlier. The said bus was insured with respondent No.2. Hence, insurance company is liable to compensate the claimant to the tune of Rs.5,00,000/-.
3. In response to the notice issued by the tribunal, though respondent No.1/owner of the bus was served with notice, he remained unrepresented. Respondent No.2/Insurance company defended the case by filing written statement.
4. After trial, the tribunal held that due to the actionable negligence on the part of the driver of the bus the accident occurred, the claimant fell down from the bus and sustained injuries. Hence, he is entitled for compensation.
5. With regard to quantum of compensation is concerned, though the doctor who treated the claimant had assessed the disability to an extent of 40% to particular limb, the tribunal has taken the disability to an extent of 5% to the whole body. Taking into consideration income of the claimant at Rs.3,000/- per month, considering disability at 5% and applying multiplier of ‘17’ awarded a sum of Rs.30,600/- towards loss of future income. Further, a sum of Rs.60,000/- was awarded towards pain and suffering, a sum of Rs.10,000/- towards medical expenses, a sum of Rs.25,000/- towards future medical expenses, a sum of Rs.18,000/- towards loss of income during treatment period and a sum of Rs.24,000/- towards attendant, conveyance, food, diet and nourishment etc., In all, a sum of Rs.1,67,600/- with interest at 8% per annum was awarded as compensation. Being not satisfied with the quantum of compensation awarded by the tribunal, the claimant has preferred this appeal.
6. The dispute in this appeal is only with regard to quantum of compensation is concerned.
7. I have heard Sri.H.K.Boregowda, learned counsel appearing for the appellant and Sri.H.S.Lingaraj, learned counsel for respondent No.2. Perused the judgment and award as well as oral and documentary evidence.
8. In the road traffic accident occurred on 20.10.2006, due to the actionable negligence on the part of the driver of the bus the claimant, who was sitting near the back side door of the bus fell down and sustained comminuted fracture of right femur, fracture to inter trochetoir, fracture of distal radius of right hand. The doctor who treated the claimant assessed the disability to an extent of 40% to the right femur and the right hand and 20% to the whole body. However, the tribunal has taken disability at 5% only for the purpose of computing compensation towards loss of future income which is contrary to law. The tribunal ought to have taken 1/3rd disability assessed by the doctor while awarding compensation. The multiplier of ‘17’ adopted by the tribunal is contrary to law. Since at the time of the accident, the claimant was aged about 35 years, the appropriate multiplier applicable to the case is ‘16’. The accident occurred in the year 2006. Therefore, it is just and proper to assess the income of the claimant at Rs.3,500/- per month. Taking into consideration the income of the claimant at Rs.3,500/- per month, considering disability at 13% to the whole body and applying multiplier of ‘16’, the compensation towards future loss of income works out to Rs.87,360/- as against Rs.30,600/- awarded by the tribunal. The compensation awarded under all other heads is in accordance with law. However, the tribunal has not awarded any compensation towards loss of amenities of life. The claimant has to lead his remaining life with the disability sustained due to the accident. Hence, he is entitled for another sum of Rs.25,000/- towards loss of amenities of life. Thereby the claimant is entitled to enhanced compensation of Rs.81,760/- with interest at the rate of 6% per annum.
9. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The judgment and award dated:04.02.2010 made in MVC No.161/2007 passed by the Additional Civil Judge (Sr.Dn.) and MACT, Mandya, is hereby modified and the claimant is entitled for enhanced compensation of Rs.81,760/-/- with interest at 6% per annum in addition to a sum of Rs.1,67,600/- awarded by the tribunal.
However, the claimant is not entitled to interest for the delayed period of 716 days in filing the appeal.
SD/- JUDGE HJ