IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.5233 OF 2016 (MV) BETWEEN:
SRI.SRINIVASA S/O GANGULAPPA AGED ABOUT 31 YEARS RESIDING AT NO.359, 1ST CROSS, CHANNASANDRA, A K GOPAL COLONY, BANGALORE – 560 061 ... APPELLANT (BY SRI.GOPAL KRISHNA N, ADV.) AND:
1. SRI.SUGUNDA.R @ SUGUNDA NAIDU S/O RAMAIAH NAIDU, MAJOR IN AGE, RESIDING AT NO.124, CORONATION ROAD, NEAR BALAMURUGAN TEMPLE, BANGARPET TOWN, PIN – 563 114 2. M/S.IFFCO-TOKIO GENERAL INSURANCE CO. LTD. NO.41, CRISTU COMPLEX, 2ND FLOOR, LAVELLE ROAD, BANGALORE – 560 001 REP. BY ITS MANAGER ... RESPONDENTS (BY SRI.H.N.KESHAVA PRASHANTH, ADV. FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.09.2015 PASSED IN MVC NO.1862/2014 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T In the road traffic accident that took place on 06th January, 2014, the appellant suffered injuries and made a claim petition before the Motor Accident Claims Tribunal, Bangalore (SCCH-17) seeking compensation. The Tribunal, by its judgment and award dated 10th September, 2015 passed in MVC No.1862 of 2014 awarded a compensation of Rs.3,12,223/- with interest at 6% per annum from the date of petition till its realisation. Being not satisfied with the compensation awarded, the appellant is before this Court in this appeal, seeking enhancement.
2. The learned counsel appearing for the appellant submits that the compensation awarded by the Tribunal is very much on the lower side. He further submits that though in the claim petition he has claimed that he was doing mason work and was earning Rs.12,000/- per month, the Tribunal has disbelieved the same and has taken income at Rs.6,000/- which is also on the lower side. Hence, the learned counsel prays for enhancing the compensation suitably.
3. Per contra, the learned counsel appearing for the respondent-Insurer submits that the Tribunal has awarded just and proper compensation and there is no ground for interference. Hence, he submits to dismiss the appeal.
4. Heard the learned counsel for the parties and gone through the judgment of the Tribunal. The accident is not in dispute. In the accident, the appellant has suffered (a) open type IIIB comminuted fracture of mind 1/3rd both bones of right leg; (b) right smith’s fracture of wrist and the injuries are grievous in nature. The appellant in order to prove his case has examined himself and marked documents as Exhibits P1 to P10. The Doctor has been examined as PW2 and got marked documents Exhibits P11 to P13. Exhibit P2 is complaint, P3 is Panchanama, P4 is IMV Report, P5 is wound certificate; P6 and P7 are discharge summaries; P8 is the charge sheet filed against the driver of the offending vehicle; P9 and P10 are medical bills and prescriptions, P11 is clinical examination notes, P12 is disability evaluation form and P3 is X-ray film. It has also come in evidence that the appellant took treatment as an inpatient between 06th January 2014 and 13th February 2014. Again he was admitted between 24th March, 2014 and 03rd April 2014. The appellant is aged 31 years and has claimed that he was doing mason work and was earning Rs.12,000/- per month. In the cases of this nature, where the income is not proved by producing any documentary evidence or adducing oral evidence, the courts shall have to take notional income. The Tribunal has taken the income at Rs.6,000/- per month. Normally, the notional income should be assessed taking into relevant factors like year of accident, place of residence, number of dependents of the injured/deceased, cost of living prevalent then, etc. Considering the age of the appellant, occupation and the year of accident, I am inclined to take the income at Rs.9,000/- per month. If that is taken, the compensation under the head future loss of income would be Rs.2,38,680/- (Rs.9000 x 12 x 17 x 13%). The same is awarded as against Rs.1,59,120/- awarded by the Tribunal. Taking the income at Rs.9,000/- per month, the loss of income during the laid-up period comes to Rs.45,000/-
and the same is awarded as against Rs.30,000/- awarded by the Tribunal. The Tribunal has not awarded any amount towards loss of amenities. Considering the trauma underwent by the appellant and also taking into account the suffering to be undergone by the appellant for the rest of his life an amount of Rs.25,000/- is awarded under the head loss of amenities. Considering the period of hospitalisation and the pain and agony underwent by the appellant, I am inclined to award another Rs.25,000/- under the head Pain and Agony. The compensation awarded by the Tribunal under other heads remain undisturbed. Accordingly, the enhanced compensation comes to Rs.1,44,560/- The enhanced amount has to carry interest also. In that view of the matter, awarding a global amount of Rs.1,95,000/- would meet the ends of justice. Accordingly the same is awarded.
Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn