IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ M.F.A.NO.7222 OF 2012 (MV) Between:
Sri S.K. Shivaprasad S/o. Sri Krishnamurthy Aged about 43 years Residing at:
#1356, Vinoba Road Opposite to Preethi Tiffanis Shivarampet Mysore – 570 001. ... Appellant (By Sri K.R.Muralikrishna, Advocate) And:
1. M/s. United India Insurance Co. Ltd., Represented by its Regional Manager Now at 5th Floor, Krishi Bhavan Hudson Circle Bangalore – 560 001.
2. Sri Ramamurthy S/o. Dasappa #1108/5, 5th Cross Gandhinagar Mysore – 570 001.
3. Sri S.R. Premanath S/o. S.K.Ramappa #157, II Stage, II Main, Gokulam Mysore – 570 002. ... Respondents (By Sri Janardhana Reddy, Advocate for R1;
R2 & R3 notice dispensed with vide order dt. 22.01.2015) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 07.06.2012 passed in M.V.C.No.1236/2010 on the file of the 11th Additional Judge, Court of Small Causes, MACT, Bangalore, 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:
J U D G M E N T This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.1236/2010 on the file of MACT, Court has awarded a total compensation of Rs.1,22,520/- to the appellant for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing on both sides.
3. Briefly stated, facts of the case are that:
On 06.09.2009 at about 5:30 PM, the appellant while riding motorcycle bearing No. KA-09-ED-8828 on KRS double Road near ESI Hospital junction, an Auto Rickshaw bearing No.KA-25-A-6560 came with high speed in a rash and negligent manner and dashed against his motorcycle. Due to the said impact, he sustained grievous injuries. Immediately he was shifted to K.R.Hospital, Mysore and took treatment from 08.09.2009 to 24.09.2009.
4. The Tribunal awarded a total compensation of Rs.1,22,520/- with interest @ 6% per annum and held that respondent Nos.1 to 3 are jointly and severally liable to pay the compensation.
5. Learned counsel for the appellant would submit that the total compensation awarded by the Tribunal is not commensurate with the injuries sustained by the appellant. He further submits that though the appellant was earning a sum of Rs.10,000/-p.m. by working as Supervisor in Vikranth Factory Canteen, the Tribunal has taken the income as Rs.4,000/-p.m. He further submits that according to the doctor there is a disability of 18% to the right clavicle and upper limb and 18% to the lower limb. However, the Tribunal has taken the total permanent disability at 6% to the whole body, which is also on the lower side. He further submits that the total compensation awarded under different heads are on the lower side and accordingly seeks to enhance the compensation.
6. Per contra, learned counsel appearing for respondent No.1-insurance company vehemently contended that the compensation awarded by the Tribunal is just and reasonable and the same is on the basis of the material on record and accordingly, he prays to dismiss the appeal.
7. The accident in question involving the Auto Rickshaw bearing No.KA-25-A-6560 which was insured with respondent No.1 herein is not in dispute. It is not in dispute that the appellant sustained injuries on account of rash and negligent driving by the driver of the said Auto Rickshaw.
8. According to the appellant he was earning a sum of Rs.10,000/- per month by working as a Supervisor in Hotel. Appellant was examined as PW.1 before the Tribunal. Apart from his oral testimony there is no other convincing material to hold that he was earning a sum of Rs.10,000/- per month. However, taking note of the facts and circumstances and also the year of the accident, I deem it proper to take the notional income of the appellant as Rs.5,000/- per month.
9. The appellant took treatment in the hospital for the injuries sustained by him from 08.09.2009 to 24.09.2009. As per the wound certificate marked at Ex.P6, the appellant has sustained following injuries:
1. Fracture Medial Malleolus (right).
2. Fracture right clavicle M/1D to N1/3 (with complications) and other bodily injuries.
10. PW.2 is an Orthopedic Surgeon. He has deposed that the appellant was treated with open reduction and internal fixation with malleolar screw for fracture and open reduction and internal fixation with K- wire fixation to fracture clavicle.
11. Disability certificate is marked as Ex.P.18.
PW.2 has opined that the appellant was suffering mal united fracture of right clavicle with stiff shoulders and united fracture of right medial malunited with pain and stiffness of right clavicle. According to him, there is a disability of 18% to the right clavicle and upper limb and 18% to right lower limb and therefore, there is a permanent physical disability to an extent of 19.3%.
12. Learned counsel for respondent No.1 states that the aforesaid permanent disability as deposed by the Doctor is to the right clavicle, upper limb and right lower limb and there cannot be any permanent disability to the whole body to the extent as stated by the Doctor.
13. Considering the overall evidence, I am of the view that the disability suffered by the appellant may be taken as 10% to the whole body as against 6% taken by the Tribunal.
14. Appellant was aged about 42 years at the time of accident and therefore, appropriate multiplier applicable to that age group is 14. Hence, the appellant is entitled for a total compensation of Rs.84,000/- (5,000x12x14x10%) as against Rs.40,320/- awarded by the Tribunal towards loss of future earning.
15. The compensation of Rs.16,000/- awarded under the head ‘Loss of Income’ during the treatment period is enhanced to Rs.20,000/-. The compensation of Rs.10,000/- awarded towards ‘Loss of Amenities’ is enhanced to Rs.30,000/-. A sum of Rs.10,000/- is awarded towards attendant charges, conveyance, nourishment and diet, etc. as against Rs.5,000/- awarded by the Tribunal. The compensation awarded under the heads ‘Pain and Suffering’ and ‘Medical Expenses’ are just and proper. In all, the appellant is entitled for a total compensation of Rs.1,95,200/- as against Rs.1,22,520/- awarded by the Tribunal.
16. Accordingly, I pass the following:
O R D E R The appeal is allowed in part. The Judgment and award dated 07.06.2012 passed in MVC No.1236/2010 on the file of the Court of Small Causes, Bengaluru City is hereby modified.
The appellant is entitled for a total compensation of Rs.1,95,200/- as against Rs.1,22,520/- awarded by the Tribunal with interest @ 6% per annum from the date of the petition till the date of realization.
Respondent No.1-Insurance Company shall deposit the entire amount within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE KA*