IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.7111 OF 2014 [MV] BETWEEN Sri Rajesh s/o Late Ashwathappa Aged about 22 years Presently r/a No.68 K Narayanappa Building Somanahalli Post Uttarahalli Hobli Bangalore South Taluk. ... Appellant [By Sri Shivakumar P, Advocate] AND 1. IFFCO – TOKIO General Insurance Co. Ltd., Regional Office No.8, 3rd Main 5th Floor, Shanti Towers, East of NGF Layout, Kasturi Nagar Bangalore-560043.
2. Sri Ashwathaiah S/o Siddana Bhovi Pemmadevarahalli Koratagere Taluk Tumkur – 572129. ... Respondents [By Sri E I Sanmathi, Advocate for R1, R2 – notice d/w v/c/o dtd.21.2.2019) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 6.9.2014 passed in MVC No.4785/2013 on the file of XXIII Additional Small Cause Judge and XXI ACMM, MACT, Court of Small Causes, Bengaluru, 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 the learned counsel appearing for both the sides.
2. The injured/claimant has preferred this appeal seeking enhancement of compensation awarded by the Tribunal in MVC No.4785/2013, wherein a total compensation of Rs.7,07,636/- with interest at the rate of 6% p.a. has been awarded.
3. I have heard the learned counsel appearing on both sides.
4. The case of the claimant is that on 28.5.2013 at about 12.30 p.m, when he was riding on his bike bearing Regn. No.KA-43/1-8092 accompanied by one Channakeshava as a pillion rider and when they reached near Thimmanayakanahalli, at that time, the driver of lorry bearing Regn. No.KA-40/1545 drove the said lorry in a rash and negligent manner and dashed against the motorbike, on account of which, he sustained grievous injuries and he was shifted to Government Hospital, Dabbespet for first aid. Thereafter, he was shifted to Government Hospital, Tumkur and then to NIMHANS and again for further treatment, he was shifted to Sri Lakshmi Multi Specialty Hospital, Sunkadakatte, Bangalore.
5. It is the case of the appellant that he was aged about 21 years and he was earning a sum of Rs.7,500/-
p.m. by doing coolie and due to the accident, he has suffered permanent disability and he is not able to work as before.
6. Before the Tribunal, the appellant got himself examined as PW1. The doctors were examined as PWs.2 and 3. Exs.P1 to 21 were marked in evidence. On behalf of respondents, no evidence was let in and no documents were marked.
7. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.7,07,636/- under the following heads:
1. Pain and suffering - Rs. 40,000/-
2. Reimbursement of Medical bills: - Rs.4,21,636/-
3. Loss of future income:
(Rs.5000x12x20%x18) - Rs.2,16,000/-
4. Loss of income during laid up period (Rs.5,000 x 6 months) - Rs. 30,000/-
Total - Rs.7,07,636/-
8. Learned counsel for the appellant would contend that the Tribunal has taken a meager income of Rs.5,000/- p.m., which is on the lower side. He would further contend that according to the medical evidence, the permanent disability suffered by the appellant is to an extent of 50% to the whole body and therefore the Tribunal was not justified in considering the permanent disability and assessing the same as 20% to the whole body. He also submits that the Tribunal has not awarded compensation under the heads, loss of amenities, future medical expenses, conveyance, food and nourishment. Therefore, he submits that the total compensation may be enhanced by modifying the impugned judgment and award.
9. Per contra, learned counsel for respondent No.1 – Insurance Company would justify the compensation awarded by the Tribunal contending that the same is just and reasonable and seeks to dismiss the appeal.
10. The accident in question involving the lorry bearing Regn. No.KA-40/1545 and actionable negligence on the part of the driver of the lorry and the fact that the said lorry was insured with respondent No.1 – Insurance Company is not in dispute.
11. According to the appellant, he was earning a sum of Rs.7,500/- p.m. by doing coolie work. The Tribunal has assessed the notional income at Rs.5,000/- p.m. The appellant has not produced any corroborative piece of evidence and except his oral testimony, there is no evidence to show that he was earning a sum of Rs.7,500/-
p.m. However, in the facts and circumstances of the case, I am of the view that notional income of the appellant may be taken as Rs.7,000/- p.m.
12. The appellant has sustained the following injuries:
1. Left frontal bone depressed fracture with diffused axonal injury.
2. Multiple facial bone fracture.
3. EDH in right temporal convesity.
4. Diffused cerebral edema 5. Abrasion over left side of face in maxillary region and knee joint.
13. PW2 is the Orthopedic Surgeon, who says that the appellant was admitted in Sri Lakshmi Multi Specialty Hospital, Sunkadakatte, Bengaluru and he was an inpatient for a period of fifty days. He has assessed the disability as per ALIMCO manual. The appellant has sustained facial disability, which is to an extent of 15% to the whole body.
14. PW3 is a Neuro Surgeon. He has deposed that on 3.2.2014, he has examined the appellant for disability assessment only. He states that the appellant was treated in NIMHANS for left frontal compound communited depressed fracture involving ACF base and underlying contusion, diffuse cerebral oedema etc. and that he underwent surgery at Sri Lakshmi Multi Speciality and underwent ORIF with miniplate and screw fixation under GA. According to him, neuropsychological assessment was examined by clinical psychologist on 7.3.2014, which is suggestive of bilateral prefrontal lobe and bilateral temporal lobe involvement. Cognitive disability as per NIMHANS guidelines is 54%.
15. The Tribunal after considering the aforesaid evidence has taken the disability to the whole body at 20%. PW3 has been examined only for the purpose of consideration of disability. The accident has occurred on 28.5.2013. PW3 examined the appellant on 3.2.2014. Considering the entire facts and circumstances and also the evidence of doctors noted supra, disability suffered by the appellant can be assessed at 30% to the whole body. The appellant being 21 years of age at the time of accident, appropriate multiplier is 18 and therefore he is entitled for a total compensation of Rs.4,53,600/- (7,000x12x18x30%) towards loss of future income due to disability. Sum awarded towards loss of income during laid up period is enhanced from Rs.30,000/- to Rs.42,000/-. The Tribunal has not awarded any sum under the heads loss of amenities and marriage prospects. A sum of Rs.25,000/- is awarded towards loss of amenities and another sum of Rs.25,000/- is awarded towards loss of marriage prospects. A sum of Rs.10,000/- is awarded towards conveyance, food, nourishment and incidental charges.
16. According to PW2, appellant underwent craniotomy, elevation and duroplasty. He submits that for removal of implants, it will cost Rs.25,000/-. The same has been disputed by the respondent No.1 – Insurance Company. Considering the treatment given and the fact that the appellant underwent ORIF with miniplate and screw fixation under GA, a sum of Rs.15,000/- is awarded towards future medical expenses.
17. The Tribunal has awarded a sum of Rs.40,000/- under the head pain and suffering and Rs.4,21,636/- towards medical expenses. Same are just and proper. In all, appellant is entitled for a total compensation of Rs.10,32,236/- as against Rs.7,07,636/- awarded by the Tribunal. Accordingly, I pass the following: ORDER Appeal is allowed in part.
The judgment and award dated 6.9.2014 passed in MVC No.4785/2013 on the file of XXIII Additional Small Cause Judge and XXI ACMM, MACT, Court of Small Causes, Bengaluru, is hereby modified.
Appellant is entitled for a total compensation of Rs.10,32,236/- as against Rs.7,07,636/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till the date of deposit.
Respondent No.1 – Insurance Company shall deposit the amount within a period of six weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE Bkm