IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.10037 OF 2012 (MV) Between:
Jayamma, W/o. Thimmegowda, 54 years, C/o. Manjegowda, Veerabhadreshwara Nilaya, Udayagiri, II Stage, Hassan City-573 201. ... Appellant (By Smt.A.R.Sharadamba, Advocate) And:
1. Sudeep.C.N, S/o. Manjegowda Major, Chikkakadaluru Village, Dudda Hobli, Hassan Taluk-573 201. (Owner of Tata Indica Bearing Regn. No.KA-02-D-9732.) 2. The Manager, Reliance General Insurance Co., Ltd., Reliance Centre No.19, Wall Chand Hirachand Marchballard Estate Mumbai-400001 R/by The Manager, Reliance General Insurance Comp., Ltd., I Floor Krithika Arcade, H.N.Pura Road, N.R.Circle, Hassan City-573 201.
(Policy No.1408402338000012, valid From 10.02.2010 to 09.02.2011). ... Respondents (R1-Service of notice is d/w as per the Order dated 25.06.2013 Sri.H.S.Lingaraju, Advocate for R2) This Miscellaneous First Appeal is filed u/s 173(1) of MV Act against the judgment and award dated:29.05.2012 passed in MVC No.1095/2010 on the file of the Additional Senior Civil Judge, Member Additional MACT, Hassan, 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 Though this matter is listed for admission, the same is taken up for final disposal by the consent of both the learned counsels.
2. This appeal is preferred by the injured – claimant seeking enhancement of compensation awarded in MVC No.1095/2010 on the file of the Court of Additional Senior Civil Judge and additional MACT, Hassan, wherein a total compensation of Rs.3,51,000/- was awarded for the injuries sustained by her in a road traffic accident.
3. I have heard the learned counsel for the appellant and the learned counsel appearing for respondent No.2 – Insurance Company.
4. It is the case of the appellant, that on 17.03.2010 at about 7.00 a.m. when she was walking on Hassan – Holenarasipura road in front of new bus-stand at Channapatna, one Tata Indica car bearing No. KA-02-D-9732, came from Channapatna side and dashed against her, as a result of which she sustained grievous injuries and took treatment at Hemavathi Hospital, Hassan. It is her further case that, in view of the accident and the injuries sustained by her, she suffered disability and as she was working as a tailor and earning a sum of Rs.8,000/- per month, she has lost all the earnings and she is not able to do any work etc.
5. It is the contention of the learned counsel for the claimant – appellant, that the appellant was working as a tailor and earning Rs.8,000/- per month. However, the Tribunal has erred in taking the income at Rs.3,000/- per month which is on the lower side. It is also her contention that the appellant has suffered functional disability in respect of right lower limb and left lower limb to an extent of 63% each and 25% in respect of difficulty to attend nature call and 6% for pain and deformity as per the evidence of the doctor – P.W.2. She further submits that the functional disability taken at 60% is also not proper and that the Tribunal has awarded a meager sum towards pain and suffering and loss of amenities of life, and therefore seeks enhancement of compensation awarded by the Tribunal.
6. Per contra, the learned counsel appearing for the Insurance Company justifies the judgment and award passed by the Tribunal and submits that the total compensation awarded by the Tribunal is just and reasonable and does not call for any interference.
7. It is the case of the claimant, that on 17.03.2010 at about 7.00 a.m., while she was walking on Hassan – Holenarasipura road, in front of new bus-stand at Channapatna, a Tata Indica car bearing No. KA-02-D-9732, came from Channapatna side and dashed against her, and as a result of which she sustained injuries and took treatment in the hospital.
The negligence on the part of the driver of Tata Indica car and the fact that the said car was insured with the second respondent is not in dispute.
8. According to the appellant, she was working as a tailor and earning Rs.8,000/- per month. Apart from her self- testimony, there is nothing on record to substantiate her contention that she was working as a tailor and earning a sum of Rs.8,000/- per month. However, considering the fact that the accident occurred in the year 2010, I am of the view that the notional income of the appellant can be taken as Rs.5,500/- per month.
9. Ex.P.4 is the wound certificate of the injured – appellant. According to Ex.P.4, she sustained abrasion on waist and traumatic paraparasis with involvement of bowel and bladder. Injury No.1 is stated to be simple in nature and injury No.2 is stated to be grievous in nature.
10. P.W.2 is the doctor who has examined the injured.
He has deposed that the appellant was admitted to the hospital on 17.03.2010 and discharged on 26.03.2010. Operation was conducted on the injured and screws were implanted. According to P.W.2, the appellant has got disability of 25% in respect of the whole body and she has got pain and deformity and whole body disability of 6% and functional disability of 63% in respect of right lower limb and 63% in respect of left lower limb.
11. Considering the said evidence and the physical disability, the Tribunal has come to the conclusion that the functional disability of the injured be reckoned at 60%. In my view, the disability taken by the Tribunal is just and proper. Further considering the evidence on record, the Tribunal has taken the age of the claimant as around 58 to 60 years and adopted `9’ as the multiplier. Hence, the net loss of future earning capacity due to disability comes to Rs.3,56,400/- (Rs.5,500/- x 12 x 9 x 60/100), as against Rs.1,94,400/- awarded by the Tribunal.
12. The Tribunal has awarded a sum of Rs.33,000/- towards pain and suffering. The same needs to be enhanced, considering the gravity of the injuries and also the physical disability suffered by the her. Accordingly, a sum of Rs.60,000/- is awarded under the head `pain and suffering’.
13. The Tribunal has awarded a sum of Rs.30,000/- towards loss of amenities of life and the same is enhanced to Rs.40,000/-.
14. The Tribunal has awarded a sum of Rs.15,000/- towards conveyance, attendant charges and food and nourishment. The same is enhanced to Rs.25,000/-.
15. The Tribunal has not awarded any amount towards loss of income during laid up period. Considering the injuries suffered by the appellant, I deem it proper to award a sum of Rs.11,000/- towards loss of income during laid up period.
16. The Tribunal has awarded a sum of Rs.78,600/- towards medical expenses which is based on the medical bills produced by the appellant and the same does not call for any interference.
17. Hence, the appellant is entitled to a total compensation of Rs.5,71,000/- as against Rs.3,51,000/- awarded by the Tribunal.
Accordingly, I pass the following order :
Appeal is partly allowed.
The judgment and award dated 29.05.2012 passed in MVC No.1095/2010 on the file of the Additional Senior Civil Judge, Member Additional MACT, Hassan, is hereby modified.
The appellant is entitled for a total compensation of Rs.5,71,000/- as against Rs.3,51,000/- awarded by the Tribunal, with interest at 6% per annum from the date of petition till its deposit.
The respondent No. 2 – Insurance Company, shall deposit the entire amount within a period of four weeks from the date of receipt of a copy of this judgment.
Sd/- JUDGE Mgn*