`IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL No.1054/2010 (MV) BETWEEN:
SRI.RAGHAVENDRA.M S/O. M.NAGARAJ AGED ABOUT 32 YEARS R/O BAREKATTE CHURCH ROAD, KUNDAPURA (REPRESENTED BY HIS FATHER SRI.M.NAGARAJ) (BY SRI.MAHESH KIRAN SHETTY, ADV.) AND:
1. SRI.RAGHAVENDRA.B.M, S/O MAHALINGA.B.M MAJOR R/O MAKKIMANE BASRURU VILLAGE KUNDAPURA 2. THE NEW INDIA ASSURANCE COMPANY LTD PUSHPA BUILDING, MAIN ROAD KUNDAPURA (REPRESENTED BY ITS BRANCH MANAGER) (BY SRI.M.P.SRIKANTH, ADV. FOR R2 R1 IS SERVED) ... APPELLANT ... RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:04.11.2009 PASSED IN MVC NO.410/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Though this appeal is listed for ‘Admission’, with the consent of learned counsel for both parties, the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award dated 04.11.2009 passed in MVC No.410/20069 by the learned Member, Fast Track Court, MACT at Kundapur.
3. In order to avoid confusion and overlapping, hereinafter the parties are referred to as per their ranking before the Tribunal.
4. The proceedings before the Tribunal came to be initiated due to the accident that occurred on 03.12.2005 at about 10.00 a.m.
5. When the claimant was proceeding on his motor cycle bearing registration No.KA.20/Q-6631 along with one Eshwar (pillion rider) from Kundapur towards Ampar, by the time, respondent No.1 rode the motor cycle in a rash and negligent manner and dashed against the claimant and due to the same, he sustained injuries. Immediately, he was shifted to Chinmayi Hospital, Kundapur and later, he was shifted to K.M.C. Hospital, Manipal for better treatment.
6. It is the case of the claimant that he has spent Rs.1,75,000/- for nourishing food, attendant charges, medicine and medical treatment and he requires further sum of Rs.50,000/- for future treatment. He claims that he was earning Rs.7,500/- per month.
7. Sri.Maheshkiran Shetty, learned counsel for the appellant contends that the claimant has sustained disability of 100% and cannot earn for his livelihood. Rather he opted for voluntary retirement. The claimant is as good as vegetable. He further submits that the claimant is not in a position to attend his daily necessary requirements and he has also lost understanding capacity. It is also submitted that learned Member has not considered the status of the claimant.
8. Sri.M.P.Srikanth, learned counsel for respondent No.2-insurer would submit that the rider of the offending vehicle had no valid and proper licence and the Tribunal has rightly considered the disability at 50% and awarded compensation of Rs.6,97,000/- towards ‘loss of future income’. He further submits that there is no bifurcation between functional disability and total disability. It is further submit that the claimant was not removed from the service on the medical ground but he chosen to put an end to his job and took voluntary retirement during the year 2011.
9. In the over all circumstances of the case, the injuries sustained by the claimant are as under:
1. Head injury with fracture frontal Bone.
2. Fracture both Bones of left forearm.
3. Skin loss over posterior aspect of distac part or right leg (07 x 03 cm).
4. Sutured wound (02x05 cm) over root of nose.
5. Nasal Bleeding.
6. Swelling over the left temporal region.
10. The injuries sustained by the claimant are evident from Ex.P4-wound certificate, Ex.P6 to 91 & 98 to 198-medical bills, Ex.P94-discharge summary, Ex.P96-In patient file, Ex.P97-Out patient file and Ex.P97-X-rays films. Ex.P-6, case sheet Ex.P-10 and supported by oral evidence of PW.1-father of the claimant, PW.2-Jaya Prakash Shetty, an eye-witness to the accident and doctor, who were examined as PW.3. The doctor in his evidence has stated that the claimant has suffered disabilities as follows:
(a) His speech disability is 50%.
(b) Hemiparesis: 25% (Right upper limb more).
(c) His brain function disablement is about 75%.
11. In case of nervous disability is concerned, the extent of total disability may go even beyond that and insofar as brain functioning disablement is concerned, total disability cannot be less than the disability of mental functioning.
12. In the present case, it is stated that the claimant has suffered brain function disablement at 75%. In my opinion, the learned Member has erred in considering the disability at 50% more particularly when the mental functioning disability is at 75%, Speech disability at 50% and Hemiparesis at 25%. Hence, the Tribunal ought to have considered the disability at 100% instead of 50% and also with reference to the principles formulated by the Hon’ble Supreme Court more particularly.
13. Even though, it is stated that the petitioner was working as ‘Second Division Assistant’ in Survey Department under Government of Karnataka and earning Rs.7,154/- per month, the Tribunal has erred in considering the salary of the petitioner at Rs.7,000/- per month instead of Rs.7,154/- per month.
14. Learned counsel for the respondents submits that the claimant is not entitled for consideration of the salary income from the date of accident.
15. For this, learned counsel for the appellant would submit that the claimant is entitled for the salary from the date of accident except 89 days of leave salary.
16. From the evidence of PW.4-Tahsildar, it is clear that the claimant had not obtained any salary other than medical period of 89 days.
17. The claimant is aged about 28 years at the time of accident, and the multiplier applicable to his age group is 17. His income is assessed at Rs.7,154/- p.m. Considering the evidence of PW-2-the doctor, the disability is assessed at 100%. Therefore, the ‘loss of future income’ works out to Rs.14,59,416/- (7154 x 12 x 17 x 100/100) and it is awarded as against Rs.6,97,000/- awarded by the Tribunal.
18. Insofar as compensation awarded by the Tribunal on the other heads are concerned, the same is just and reasonable.
19. Thus, the claimant is entitled for the following compensation:-
20. Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs.7,62,410/- with interest at the rate of 6% per annum from the date of claim petition till the date of realisation.
21. The Insurance Company is directed to deposit the additional compensation amount together with interest within one month from the date of receipt of certified copy of this judgment.
Sd/- JUDGE VM