IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.151 OF 2014 (MV) BETWEEN THOMAS JOSEPH, AGED ABOUT 51 YEARS, S/O. JOSEPH, R/AT T.L.R COTTAGE COMPOUND, PADUMARNADU VILLAGE AND POST, ACCHARIKATTE, MOODBIDRI, MANGALORE TALUK. ... APPELLANT (BY SRI. PAVAN CHANDRA SHETTY H., ADVOCATE) AND 1. SIJU JOSEPH, AGED ABOUT 31 YEARS, S/O. JOSEPH, R/AT KUCCHUPAL PILLA HOUSE, KALLAMMANADUDDE, VALPADY POST AND VILLAGE, MOODBIDRI, MANGALORE TALUK-574 227.
2. THE BRANCH MANAGER, UNIVERSAL SAMPO GENERAL INSURANCE CO. LTD., CITY TRADE CENTRE, 1ST FLOOR, OPP: CITY HOSPITAL, KADRI, MANGALORE-575 004. ... RESPONDENTS (BY SRI. H.N. KESHAVA PRASHANTH, ADV. FOR R2; NOTICE TO R1 DISPENSED WITH VIDE COURT ORDER DT. 13.03.2019) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.09.2013 PASSED IN MVC NO.405/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both sides.
Aggrieved by the inadequacy of compensation awarded by the Tribunal, the injured-claimant has preferred this appeal seeking enhancement of compensation.
2. I have heard the learned counsel appearing for the appellant and the learned counsel for the respondent No.2 – Insurance Company.
3. The facts of the case are that on 09.10.2011 at about 5.00 p.m., the appellant was traveling as a pillion rider in Bajaj Discover bearing registration No.KA-19-ED-5422 along with the rider one Siju Joseph, from Karkala towards Hebri on Karkala Hebri State High way. When they reached near Gillali of Hebri Village, the said two-wheeler skidded due to the rash and negligent riding by its rider and both the rider and the pillion rider along with the two wheeler fell down and sustained injuries. The appellant was admitted to Spandana Maternity and General Hospital and took treatment as an inpatient from 09.10.2011 to 13.10.2011.
4. It is the further case of the appellant that he was hale and healthy prior to the accident and he was earning a sum of Rs.15,000/- per month by doing rubber taping in the rubber estate belonging to one Benn Joseph. He has suffered permanent disability and therefore he is not able to work. A total compensation of Rs.7,50,000/- was sought before the Tribunal.
5. The Tribunal after considering the evidence and material on record, awarded a compensation of Rs.88,020/- with interest at 8% per annum, under the following heads:
Pain and agony Rs.25,000-00 Medical bills Rs.26,020-00 Loss of income during Laid up period Rs.1,000-00 Attendant charges Rs.5,000-00 Conveyance, food and nutrition Rs.7,000-00 Loss of amenities Rs.10,000-00 Loss of future income due to disability (5000x12x2.5%) Rs.18,000-00 Total Rs.88,020-00 6. The contentions of the learned counsel for the appellant is that the Tribunal has taken the income of the appellant at Rs.5,000/- per month, which is not proper since the appellant was a skilled labour earning a sum of Rs.15,000/- per month by doing rubber taping in the estate of one Benni Joseph. He submit that the Tribunal has not awarded any compensation for future medical expenses though the doctor has stated that the appellant requires a sum of Rs.15,000/- towards future medical expenses. He further submits that the compensation awarded under all the other heads are on the lower side. Accordingly, he seeks to allow the appeal by enhancing the compensation awarded by the Tribunal.
7. Per contra, the learned counsel for Respondent No.2 would justify the total compensation awarded by the Tribunal, contending that the same is just and reasonable and does not call for any interference.
8. The contention of the learned counsel is that the injured-appellant was earning a sum of Rs.15,000/- per month by doing rubber taping in the rubber estate belonging to one Benni Joseph. There is no other evidence to establish the income of the appellant, except his oral testimony. In that view of the matter, it cannot be said that the appellant has established that his income per month was Rs.15,000/-
However, considering the fact that the accident is of the year 2011 and in the facts and circumstances of the case, I deem it appropriate to take the income of the appellant at Rs.6,500/- per month as against Rs.5,000/- taken by the Tribunal.
9. The evidence of PW2 goes to show that the appellant had sustained fracture of left clavical bone and contusion over the forehead. The appellant was an inpatient from 09.10.2011 to 13.10.2011, internal fixator was fixed over the fractured bone. An examination was conducted on 18.01.2013 to assess the disability which showed that there was :
(i) Mild mal union of (L) clavicle.
(ii) Terminal 200 of abduction of (L) shoulder is painfully restricted.
(iii) Wasting of (L) shoulder muscles by 2.5 cms.
According to PW2, the appellant was having 10% permanent disability over his left upper limb. Considering the aforesaid evidence, the disability of the appellant is assessed at 3% to the whole body. The age of the appellant is being 50 years, the appropriate multiplier applicable to his age is 13. The appellant is entitled for a compensation of Rs.30,420/- (Rs.6,500x12x13x3/100) as against Rs.18,000/- awarded by the Tribunal towards ‘loss of income due to disability’.
10. The doctor has stated that there was internal fixator done which was not removed and for removal of the same, a surgery is required which would cost around Rs.15,000/-. Considering the evidence and material on record, I deem it appropriate to award a sum of Rs.10,000/- towards ‘future medical expenses’. The compensation awarded under the head ‘pain and suffering’ is enhanced from Rs.25,000/- to Rs.30,000/-. A sum of Rs.1,000/- was awarded under the head ‘loss of income during laid up period’, the same is enhanced to Rs.13,000/-. A sum of Rs.1,000/- is awarded towards ‘attendant charges’, the same is enhanced to Rs.5,000/-. A sum of Rs.7,000/- awarded under the head ‘conveyance, food and nutrition’ is enhanced to Rs.10,000/-. The Tribunal has awarded a sum of Rs.10,000/- towards ‘loss of amenities’. The same is enhanced to Rs.25,000/-. A sum of Rs.26,020/- has been awarded towards medical expenses. The same is unaltered. In all, the appellant is entitled for a total compensation of Rs.1,49,440/- which is rounded off to Rs.1,50,000/- as against Rs.88,020/- awarded by the Tribunal.
11. Accordingly, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 24.09.2013 passed by the Senior Civil Judge aned AMACT, Karkala in MVC No.405/2012 is hereby modified.
The appellant-claimant is entitled for a total compensation of Rs.1,50,000/- as against Rs.88,020/- awarded by the Tribunal.
The enhanced compensation shall carry interest at 6% per annum from the date of petition till its realization.
Respondent No.2-Insurance Company is directed to deposit the entire amount within four weeks from the date of the receipt of the copy of this judgment.
The appellant shall be entitled to withdraw the enhanced amount.
snc Sd/- JUDGE