IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ M. F. A. NO.5402 OF 2013 BETWEEN:
SRI SIDDARAMAIAH @ SIDDARAMANNA S/O PANCHANNA AGED ABOUT 34 YEARS R/AT MUDDAPURA, GUBBI TALUK TUMKUR DISTRICT (BY SRI. P. SHIVAKUMAR, ADV.) AND 1. CHOLAMANDALAM M. S. GENERAL INSURANCE CO. LTD., NO.9, 2ND FLOOR, ULSOOR ROAD, NEAR ULSOOR LAKE OPP. TO GURUNANAK BHAVAN BANGALORE - 560008 REP. BY ITS MANAGER 2. SRI. CHANDRAVILASA S/O RAMBHAT, R/AT NO.1/20/1 UMA NIVAS, DEVAL GHANGAPUR, AFZALPUR, GULBARGA DISTRICT - 585301 (BY SRI. B. PRADEEP, ADV. FOR R1 ... APPELLANT ... RESPONDENTS NOTICE TO R2 DISPENSED WITH V/O. DT.13.1.15) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.03.2013 PASSED IN MVC NO.3848/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, 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:
JUDGMENT This appeal is filed by the claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.3848/2012 dated 13.03.2013 on the file of the MACT, Court of Small Causes, Bangalore, wherein a total compensation of Rs.4,42,000/- has been awarded for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent No.1/Insurance Company.
3. It is the case of the appellant that on 17.05.2012 at about 7 a.m., he was proceeding on a bike bearing Reg.No.KA-02-HD-69 accompanied with one Sri. Prashanth. When they reached near SLR Kalyana Mantapa, Bangalore-Tumkur NH-4 Service Road, at that time one Bolero Car bearing Reg.No.KA- 32-M-9823 came in a high speed and in a rash and negligent manner and dashed against the bike due to which he fell down and sustained grievous injuries. The appellant was immediately shifted to Harsha Hospital, Nelamangala and later shifted to ESI Hospital, Rajajinagar, Bangalore. He was then shifted to Hosmat Hospital, Bangalore for treatment.
4. It is the further case of the claimant that he was working as a cook and earning Rs.15,000/- p.m. and due to the accidental injuries, he has suffered permanent disability and he has lost the income as he is not able to do any work.
5. A total compensation of Rs.8,00,000/- was sought by the appellant for the injuries sustained by him. Before the Tribunal, he got himself examined as PW-1 and examined two more witnesses. Exs.P1 to P34 were marked. On behalf of the respondent No.1/Insurance Company, RW-1 was examined and Exs.R1 and R2 were marked in evidence.
6. The Tribunal, after considering the evidence and material on record, awarded a total compensation of Rs.4,42,000/- with interest at the rate of 6% p.a., excluding the future medical expenses of Rs.25,000/-.
7. The learned counsel for the appellant seeking enhancement of compensation contended that the Tribunal has taken only a sum of Rs.6,000/- p.m. as the income of the appellant, though the appellant was earning a sum of Rs.15,000/- p.m. as a cook. He further submitted that though the doctor has stated that the appellant may require Rs.2,10,000/- towards future medical expenses, however, a meager sum of Rs.25,000/- has been awarded by the Tribunal.
Therefore, he further submits that the total compensation awarded is on a lower side and the same may be enhanced by modifying the judgment and award passed by the Tribunal.
8. Per contra, the learned counsel for the respondent No.1/Insurance Company contended that the Tribunal has awarded a just and reasonable compensation considering all the aspects of the case and there is no room for enhancing the compensation awarded by the Tribunal and accordingly he seeks to dismiss the appeal.
9. The accident involving the Bolero vehicle bearing Reg.No.KA-32-M-9823 and the appellant sustaining injuries in the said accident, is not disputed. The offending vehicle was insured with respondent No.1/Insurance Company.
10. According to the appellant he was earning a sum of Rs.15,000/- p.m. working as a cook. However, apart from his self-interested testimony, there is no other convincing evidence to hold that the income of the appellant was Rs.15,000/- p.m. at the time of accident. The Tribunal has taken the income at Rs.6,000/- p.m. Considering the year of accident and also the facts and circumstances of the case, the notional income of the appellant is taken at Rs.7,000/- p.m.
11. The appellant has suffered permanent functional disability. According to PW-3, Orthopedic Surgeon, the disability suffered to the right lower limb and left upper limb is 60% and the whole body impairment is 20%. The Tribunal has taken the disability to the whole body at 20% accepting the evidence of PW-3, which is proper. The appellant was aged about 38 years as per the medical records. The appropriate multiplier is therefore ‘15’. Hence the appellant is entitled for a compensation of Rs.2,52,000/- [Rs.7,000/- x 12 x 15 x 20/100] towards loss of future income due to disability, as against Rs.2,16,000/- awarded by the Tribunal.
12. The Tribunal has taken into account 20 medical bills to the tune of Rs.7,487/- as per Ex.P11 and another 6 medical bills to the tune of Rs.4,521/- as per Ex.P34. The Tribunal has awarded a sum of Rs.60,000/- towards ‘medical expenses including attendant, conveyance and nourishment expenses’, which is just and reasonable.
13. The appellant has sustained fracture dislocation of right hip with fracture acetabulum right, open fracture right tibial plateau, fracture shaft of left humerus and undergone various surgery by way of ORIF. After the accident, he was admitted as an inpatient and discharged on 30.05.2012 and again he was admitted on 01.08.2012 and discharged on 10.08.2012. The Tribunal has awarded a sum of Rs.36,000/- towards ‘loss of income during the laid-up period’ and the same is enhanced to Rs.42,000/-. The compensation of Rs.75,000/- awarded for ‘pain and suffering’ and Rs.30,000/- for ‘loss of amenities’ is also just and reasonable.
14. It is the contention of the learned counsel for the appellant that though the doctor has deposed that he needs one more surgery for the removal of implants left humerus and right tibial condyle after the fractures are solidly united and the estimated cost for the said surgery is about Rs.60,000/- and further that he will need a total hip arthroplasty for severe pain with QA changes and AVN changes in femoral neck in right hip and the estimated cost for the said surgery is Rs.1,50,000/-. However, the Tribunal has awarded only a sum of Rs.25,000/- towards future medical expenses. He would submit that the same requires to be enhanced in view of the evidence of PW-3. The Tribunal has opined that for the future surgery and removal of implants, the claimant is entitled for a compensation of Rs.25,000/- and awarded the same under the head future medical expenses. Considering the entire facts and circumstances of the case and also the medical evidence on record, I deem it proper to award another sum of Rs.25,000/- towards ‘future medical expenses’.
15. In all, the appellant is entitled for a total compensation of Rs.5,09,000/- as against Rs.4,42,000/- awarded by the Tribunal. Accordingly I pass the following:
Order The appeal is allowed-in-part.
The judgment and award dated 13.03.2013 passed in MVC No.3848/2012 on the file of MACT, Court of Small Causes, Bangalore, is hereby modified.
The appellant is entitled for a total compensation of Rs.5,09,000/- [Rupees Five Lakh Nine Thousand only] with interest at the rate of 6% p.a. (excluding future medical expenses of Rs.50,000/-), as against Rs.4,42,000/- awarded by the Tribunal.
Sd/- Judge RD