IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO. 410/2016 (MV) Between:
Sri Srinivasa S/o Venkatagiri Gowda Aged about 38 years R/at No.13, 1st Cross Narayanapura Peenya Industrial Area Bengaluru-560058 Permanent Address No.56, Vittalapura Krishnarajapet Mandya District-571401. ... Appellant (By Sri Kalyan.R, Advocate) And:
1. The Director (Claims) Karnataka Government Insurance Deptt., Visveshwaraya Tower Dr.B.R.Ambedkar Beedi Bengaluru-560001.
2. The Executive Engineer Bruhat Bengaluru Mahanagara Palike Corporation Circle Hudson Circle Bengaluru-560001. … Respondents (By Sri H.R.Anitha, HCGP for R1, R2 is dispensed with) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the Judgment and award dated 28.10.2015 passed in MVC No.2318/2013 on the file of the 22nd Additional Small Causes Judge and Member, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal is coming on for Admission this day, the Court delivered the following:
J U D G M E N T This is an appeal preferred by the injured/claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.2318/2013 dated 28.10.2015 on the file of Court of Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, thereby awarding a compensation of Rs.1,53,098/- (Rupees One Lakh Fifty Three Thousand Ninety Eight Only) with interest at the rate of 6% p.a. for the injuries sustained by the appellant/claimant in road traffic accident.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent No.1.
3. It is the case of the appellant/claimant that on 14.03.2013 at about 9.00 p.m. when he was crossing the Peenya Industrial Area Road, near Rolling Mill from Narayanapura towards Ganapathi Nagar, at that time all of a sudden a Bolero Jeep bearing Reg.No.KA-01-Z-5197, being driven by its driver in a rash and negligent manner came from TVS cross side and hit against the appellant, as a result of which, he fell down and sustained grievous injuries on his leg and other parts of the body.
4. It is the case of the appellant that he was working as Security guard and earning a sum of Rs.8,000/- per month. On account of the accidental injuries, he suffered 28% of physical disability to the lower limb and 14% disability to the whole body. A total compensation of Rs.5,00,000/- was claimed by the appellant before the Tribunal.
5. To substantiate the claim, three witnesses were examined and Ex.P1 to Ex.P15 were marked in evidence.
6. The Tribunal considering the evidence and material recorded, awarded a total compensation of Rs.1,53,098/- with interest at the rate of 6% p.a. from the date of petition, till deposit.
7. The Tribunal awarded compensation under the following heads:
1. Pain and suffering Rs.20,000/-
2. Medical expenses Rs.93,098/-
3. Food and Nourishment expenses, Conveyance charges and Attendant charges Rs.10,000/-
4. Future Medical expenses Rs.10,000/-
5. Loss of amenities of life and disability Rs.20,000/-
Total Rs.1,53,098/-
8. The accident in question and actionable negligence on the part of the driver of the offending vehicle is not in dispute. The respondent No.1 is the insurer of the Bolero Jeep bearing Reg.No.KA-01-Z- 5197.
9. The material on record discloses that immediately after the accident, the injured was shifted to Premier Sanjeevini Hospital, Bengaluru for treatment. The x-ray report confirms closed fracture shaft of femur left. The injured underwent closed reduction and internal fixation with interlocking nail for fracture of femur. Ex.P7 is the wound certificate and Ex.P8 is the discharge summary. The petitioner has taken treatment as an inpatient from 15.03.2013 to 19.03.2013. Ex.P9 is the 14 medical bills and Ex.P10 is the 17 prescriptions. According to the medical bills a sum of Rs.93,098/- has been spent towards treatment.
10. PW.2 is the doctor, who was working as Orthopedic Surgeon at Victoria Hospital, Bengaluru. He has stated that he examined the injured on 31.08.2015 for disability assessment. On clinical examination he found the following disability i.e., 1. He walks with Limp 2. Restriction of joint movement of left knee-Flexion-Extension 15 Degree. Normal 0-125 Decree. He cannot squat on floor, difficulty to climb upstairs, difficulty to walk on slope, kneel.
3. The radiological examination showed fracture united with implants in situ.
11. PW.2 – doctor was of the opinion that the injured suffered physical disability of 28% of left lower limb which is about 14% to whole body, which is permanent in nature. He has further stated that the patient need surgery for removal of implants which may cost an amount of Rs.12,000/-.
12. The learned counsel appearing for the respondent no.1 vehemently contend that PW.2 is not the treated doctor and the assessment of disability made by PW.2 is not proper. She contends that the Tribunal is justified in not awarding any compensation towards loss of future earnings.
13. Though PW.2 has assessed the disability on the basis of the examination of the injured, however, the Tribunal has not awarded any compensation under the head of loss of future earnings. It is observed by the Tribunal that the injured has not placed any material evidence to show that he was working as a Security Guard and his disability would affect his future earnings.
14. A perusal of the evidence of PW.2 goes to show that he examined the injured on 31.08.2015 for disability assessment. Even on that day, he has found some disability suffered by the injured/appellant. He has also noticed by radiological examination that fracture was united with implants situ. There is nothing elicited in his cross- examination so as to disbelieve his evidence with regard to the disability suffered by the appellant. Admittedly, the appellant has sustained injuries as noted in the wound certificate which is on account of the accident in question. In view of the evidence of PW.2, the Tribunal was not justified in not awarding any compensation towards the loss of future earnings.
15. PW.2 has stated that the appellant has suffered physical disability of 28% on left lower limb which is about 14% to the whole body. PW.2 in the cross-examination has stated that there is no difficulty for the appellant to sit and do his work. According to the appellant he was working as Security Guard and earning a sum of Rs.8,000/- per month. To prove the avocation and income except the evidence of PW.1 there is no other evidence.
16. The age of the injured/appellant is shown as 35 years in the wound certificate and discharge summary, which is not in dispute. Considering the year of accident, the income of the appellant can be assessed at Rs.7,500/- per month.
17. From the nature of injuries sustained by the appellant, though it cannot be said that the appellant has suffered 14% disability to the whole body, however, considering the evident of PW.2 with regard to the physical disability suffered by the appellant to his left lower limb at 28%, the disability suffered by the appellant to the whole body is assessed at 10%. The appropriate multiplier applicable to the age of appellant is ‘16’. Hence, the appellant is entitled for a compensation of Rs.1,44,000/- (Rs.7,500/- X 10% X 12 X 16) towards loss of future earnings on account of disability.
a. The Tribunal has awarded a sum of Rs.20,000/- towards pain and suffering, the same is enhanced to Rs.25,000/-.
b. The Tribunal has awarded a sum of Rs.10,000/- towards food and nourishment expenses, conveyance charges and attendant charges, the same is enhanced to Rs.15,000/-.
c. The Tribunal has awarded a sum of Rs.20,000/- towards loss of amenities of life and disability, the same is enhanced to Rs.25,000/-.
d. The Tribunal has awarded a sum of Rs.93,098/- towards medical expenses and Rs.10,000/- towards future medical expenses that is not disturbed.
e. The Tribunal has not awarded any amount towards loss of income during the laid up period. In this regard it seen that the appellant was an inpatient from 15.03.2013 to 19.03.2013. He has suffered closed fracture shaft of femur left. Considering the nature of injuries a sum of Rs.7,500/- is awarded under this head. Hence, the appellant is entitled for a total compensation of Rs.3,19,598/- which is rounded off to Rs.3,20,000/-.
Accordingly, I pass the following:
O R D E R The appeal is allowed in part. Judgment and award dated 28.10.2015 passed in M.V.C.No.2318/2013 on the file of the XXII Additional Small Causes Judge and Member, MACT, Bengaluru is hereby modified.
The appellant/claimant is entitled for a total compensation of Rs.3,20,000/- as against Rs.1,53,098/- awarded by the Tribunal with interest of 6% p.a. from the date of petition, till the date of deposit.
The respondent Nos.1 is directed to deposit the compensation amount awarded within a period of six weeks from the date of receipt of a copy of this order.
Sd/- JUDGE ssb