IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.10996 OF 2012 (MV) BETWEEN:
Sri. T.Vijayakumar S/o. Sri. Thimmarayappa, Age:54 years, R/o. No.81, Venkatachalapathi Building, Opposite to Anjaneya Swamy Temple, Venkateshwara Nagar, Jakkur village, Yelahanka, Bengaluru. …Appellant (By Smt. Sunitha B.H. for Sri. Suresh M. Latur, Advocate) AND:
1. Sri. John Alummottil R/o. Bhuvan College of Nursing, Venkatala, Yelahanka, Bengaluru-64.
2. The Divisional Manager, National Insurance Co. Ltd, Divn IV No.16, II Floor, Kumara Krupa Road, Shivananda Circle, Bengaluru-01. …Respondents (By Sri. H.S.Lingaraju, Advocate for R-2;
Vide Order dated:17.01.2017 notice to R-1 dispensed with) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:10.09.2012 passed in MVC No.8668/2010 on the file of the 10th Additional Judge, Member MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Admission this day, the Court delivered the following:
JUDGMENT This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned X Addl.Judge, Member, M.A.C.T., Bengaluru, (hereinafter referred to as ‘The Tribunal’, for short), by judgment and award dated 10.09.2012, passed in MVC No.8668/2010.
2. The summary of the case of the claimant in the Tribunal is that on 22.7.2010, at about 12.30 in the afternoon, while he was crossing the road on B.B.Road, near Kogilu Cross Junction, Yelahanka, Bengaluru, after observing the traffic on either side of the road, at that time, a motorcycle bearing registration No.KL-03-G- 8394, being ridden by its rider in a rash and negligent manner, came from Bengaluru towards Devanahalli and dashed to him (claimant), due to which accident, he sustained severe injuries. He was admitted to Government Hospital, Yelahanka, where he was given preliminary treatment and later shifted to Shushrusha Nursing Home, Bengaluru, where he took treatement as an inpatient for more than nineteen days. Stating that prior to the accident, he was working as a Security Guard in a private agency and subsequent to the accident, due to the permanent disability suffered by him, he lost his job and has no avocation for his livelihood, the claimant has claimed compensation of a sum of `8 lakhs from the respondents who are the owner and insurer of the alleged offending vehicle respectively.
3. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
Amount (`)
and nourishment and conveyance charges 10,000-00 Total 2,49,490-00 4. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
5. The present appeal being the claimant’s appeal and the respondents having not preferred either cross- objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
6. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. Learned counsel for the appellant/claimant in her arguments vehemently submitted that the Tribunal even after noticing that the claimant had sustained two major fractures to two important limbs of his body, yet has awarded a meager compensation towards `pain and agony’. She also submitted that despite the evidence of PW-1 that he was working as a Security Guard in a private agency and was earning a sum of `9,000/- per month, towards which, he has produced his identity card, the Tribunal has erred by confining his monthly income at `5,000/-. Learned counsel for the appellant also submitted that the compensation under the head of `future medical expenses’ has not been considered by the Tribunal.
9. Learned counsel for the respondent-Insurance Company in his arguments submitted that admittedly the claimant has not produced any appointment letter or a salary certificate. Merely based on his identity card, it cannot be believed that he was earning a sum of `9,000/- per month, as such, the Tribunal has rightly taken his monthly income at `5,000/-. Learned counsel further submitted that the compensation awarded under various heads are just and reasonable which does not warrant any interference. He also submitted that, in the absence of any evidence, awarding any compensation towards future medical expenses does not arise.
10. The evidence of PW-1 and PW-2 and PW-3, who are the doctors, and the perusal of the wound certificate at Ex.P-4, would go to show that, in the accident, the claimant has sustained fracture of lower end of left radius and ulna and also fracture of middle 1/3rd of right shaft of tibia and fibula. Thus, one upper limb and one lower limb have got fractured due to the road traffic accident with which the claimant has met. It is also shown that for a considerable period of not less than nineteen days, he was inpatient in the hospital for treatment. As such, towards pain and suffering for the injuries suffered by him, any amount less than a sum of `40,000/- would be a meager compensation. As such, to bring it to a just compensation, the claimant is entitled for enhancement of `20,000/- under the said heading.
11. Considering the fact that even though the claimant was discharged from the hospital, he was under bed-rest for a period of three months and had sustained fractures to his two important limbs of the body, I am of the view that towards `loss of amenities’, the claimant deserves an enhancement of a compensation of a sum of `10,000/-.
12. Even though the Tribunal has awarded a compensation of a sum of `42,490/- towards medical expenses, however, after considering 71 medical bills produced at Ex.P-10 and 9 medical prescriptions at Ex.P-11 and the Inpatient Record at Ex.P-14, along with case sheet at Ex.P-15 and also after considering the evidence of two doctors as PW-2 and PW-3, I am of the view that the compensation towards medical expenses requires a marginal enhancement by a sum of `6,000/-.
13. The claimant has stated that he was working as a Security Guard in a private agency and was earning a sum of `9,000/- per month. Admittedly, he has not produced either his letter of appointment or salary certificate to prove his avocation and income. Mere production of copy of identity card at Ex.P-8 would not prove his avocation or income. As such, the notional income prevailing as in the year of the accident, which is 2010, is required to be considered. Since the co-ordinate Benches of this Court are taking the notional income for the relevant year at `5,500/- per month, the same amount is required to be applied in the case on hand also. In such an event, towards `loss of income during laid up period’, which is for three months, the claimant is entitled for an enhancement by a sum of `1,500/-.
14. In view of the fact that the compensation awarded towards disfigurement and permanent disability appears to be just and reasonable, the same has been retained as it is without modification.
15. The Tribunal has awarded a sum of `10,000/- towards attendant charges, food and nourishment and conveyance charges. Considering the fact that the Tribunal has considered his laid up period as three months and admittedly for a longer period, he was inpatient in the hospital, I am of the view that the compensation awarded under the said head deserves to be enhanced by an additional sum of `10,000/-.
16. Towards `loss of future income’, the Tribunal has awarded a sum of `1,32,000/- taking the percentage of disability at 20% and applying the multiplier `11’ which is applicable to the age of the claimant. After going through the medical evidence and hearing both side, I do not find any reason to accept the argument of learned counsel for the appellant that percentage of disability is required to be taken more than 20%. On the other hand, the percentage of disability at 20% taken by the Tribunal is on the sound reasoning given by the Tribunal which does not warrant interference.
Accordingly, retaining the percentage of disability and multiplier as such, the recalculation of compensation towards `loss of future income’ would be at `5,500/- x 12 x 11 x 20/100 = `1,45,200/-. After deducting a sum of `1,32,000/- awarded by the Tribunal, for difference amount of `13,200/-, the claimant is entitled. Thus, in total the claimant is entitled for enhancement of compensation for a sum of `60,700/- which is in addition to the compensation awarded by the tribunal, which is at `2,49,490/-.
17. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for enhancement of compensation in a sum of `60,700/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 10.09.2012, passed by the learned X Addl. Judge, Member, M.A.C.T., Bengaluru, in MVC.No.8668/2010, is modified to the extent that the compensation awarded at `2,49,490/- is enhanced by a sum of `60,700/-, thus fixing the total compensation at `3,10,190/- (Rupees Three lakhs ten thousand one hundred and ninety only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered. However, the interest at the rate of 8% awarded by the Tribunal though continues to the original awarded amount of `2,49,490/-, the interest upon the enhanced amount would be from the date of appeal.
Draw modified award accordingly.
Sd/- JUDGE bk/