IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.6129/2015 (MV) BETWEEN SRI. SHEKHARAPPA S/O PAPANNA AGED ABOUT 47 YEARS MASON & AGRICULTURIST R/AT VENKATESHAPURA VILLAGE HOLALKERE TALUK CHITRADURGA DISTRICT 577 526 (BY SRI SURESH M R, ADVOCATE) ... APPELLANT AND 1. SRI THIMMAPPA K S/O KASTHURAPPA METHI GATTIHOSAHALLI VILLAGE TALYA HOBLI HOLALKERE TALUK CHITRADURGA DISTRICT 577 526 2. THE MANAGER, NATIONAL INSURANCE CO., 2ND FLOOR, MELAGIRI PLAZA OPPOSITE, BAPUJI DENTAL COLLEGE M.C.C. ‘B’ BLOCK DAVANAGERE 577 001 ... RESPONDENTS (BY SRI ARUN PONAPPA, ADVOCATE, FOR R2;
R1-NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.02.2015 PASSED IN MVC NO.471/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, AT HOLALKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is filed by the injured/claimant seeking enhancement of compensation awarded by the Tribunal, wherein a sum of Rs.75,000/- has been awarded for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel for the appellant as well as the learned counsel appearing for respondent No.2.
3. Briefly stated the facts of the case are that on 14.07.2013 at about 6.00 p.m., the appellant was walking from Talya Village to Navalur Gate Village and while he was proceeding thus, the rider of the bike bearing reg. No.KA-16/X-4091 came riding the said bike in a high speed and rash and negligent manner and dashed against the claimant and caused the accident. Due to which, appellant sustained simple as well as grievous injuries all over his body. He was immediately shifted to District Hospital Chitradurga and for higher treatment he was taken to other hospitals. The case of the appellant is that he was an Agriculturist and Mason by profession and was earning a sum of Rs.20,000/- per month. On account of the accident, he suffered permanent disability and he is not able to work as before.
4. Appellant filed a claim petition before the Tribunal claiming a total compensation of Rs.10,00,000/-. He got examined himself as PW1 and got marked Exs.P1 to P13. On behalf of respondent No.2 Ex.R1-Policy copy was marked. The Doctor who treated the appellant was examined as CW1. The Tribunal considering the evidence and material on record awarded a total compensation of Rs.75,000/- with interest at 8% per annum from the date of petition till the date of deposit.
5. It is the contention of the learned counsel for the appellant that the Tribunal has awarded a meager compensation of Rs.75,000/- without properly appreciating the entire evidence and material on record. The appellant has suffered permanent disability to an extent of 35.58% and on examination by the Doctor, it was found that he is facing difficulty in walking, climbing, standing, squatting and sitting etc. Therefore, the disability suffered by him has affected his avocation and earning capacity. It is also the contention of the learned counsel that the appellant has sustained open type II fracture of both the bones of left leg and operation was conducted and screw and rod were fixed and therefore, the compensation awarded towards pain and suffering and under other heads are not commensurate with the injuries and disability suffered. Accordingly, the learned counsel seeks to enhance the compensation.
6. Learned counsel appearing for respondent No.2 Insurance Company on the other hand submits that the Tribunal having appreciated the oral and documentary evidence, has awarded a just and reasonable compensation after giving reasons, therefore, he submits that no interference is called for and seeks to dismiss the appeal.
7. It is the case of the appellant that while he was proceeding as a pedestrian he met with an accident on account of the rash and negligence riding by the rider of the bike bearing registration No.KA-16/X-4092 and in the said accident he sustained simple as well as grievous injuries. The accident in question and the appellant sustaining injuries are not in dispute. The 2nd respondent is the Insurer of the offending vehicle.
8. According to the medical evidence, the appellant had sustained Open type 2 fractures of both bones of left leg and an operation was conducted and screw and rod were fixed. The appellant was an inpatient from 14.07.2013 till 28.07.2013. The Doctor has assessed the disability suffered by the appellant and issued the Disability Certificate, which is marked as Ex.P10. According to Ex.P10 there is a permanent disability to an extent of 35.58% of left leg. Hence, it just and proper to assess the disability suffered by the appellant to his whole body at 12%.
9. According to the appellant he was an Agriculturist and Mason by profession. However, he has not established that he was having an income of Rs.20,000/- per month as stated by him. Hence, considering the facts and circumstance of the case, avocation of the appellant and also the year of accident, the notional income of the appellant is taken as Rs.8,000/- per month. The appellant was aged about 48 years at the time of accident as per the hospital documents. Hence, the appropriate multiplier applicable is 13. Therefore, the appellant is entitled for a compensation of Rs.1,49,760/- (Rs.8,000/- x 12 x 13 x 12/100) towards loss of future earning on account of disability as against Rs.15,000/- awarded by the Tribunal towards loss of disability.
10. Considering the nature of injuries, period of treatment, surgery conducted and also the disability suffered, compensation of Rs.28,000/- awarded towards pain and suffering is enhanced to Rs.40,000/-.
11. The Tribunal has awarded Rs.15,000/- towards future pain and suffering and medical expenses. A sum of Rs.20,000/- is awarded towards loss of amenities as against the said sum of Rs.15,000/-. The compensation awarded towards medical expenses i.e. a sum of Rs.10,461/- is unaltered. The compensation of Rs.3,000/- awarded towards conveyance, nourishment and attendant charges is enhanced to Rs.10,000/-. The sum of Rs.10,000/- is awarded towards loss of income during laid up period. The appellant is entitled for a total compensation of Rs.2,40,221/- as against Rs.75,000/- awarded by the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 02.02.2015 passed in MVC No.471/2013 on the file of the Senior Civil Judge and Addl. MACT at Holalkere, is hereby modified. The appellant is entitled to a total compensation of Rs.2,40,221/- as against Rs.75,000/- awarded by the Tribunal. The enhanced amount shall carry interest at the rate of 6% per annum from the date of petition till deposit.
The Insurance Company – respondent No.2 shall deposit the entire amount before the Tribunal within a period of four weeks from the date of receipt of a coy of this judgment.
Learned counsel Sri Arun Ponappa for respondent No.2 is permitted to file Vakalat within a period of six weeks from today.
Sd/- JUDGE SBS*