IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.3520 OF 2017 (MV) BETWEEN Mr. Umesh @ Umesha Bhandary S/o Late Poovappa Bhandary Aged 47 years R/at Sajipapadu House Sajipapadu Village Kotekani Post, Bantwal Taluk Presently residing at D’Souza Compound Kadri Kambla, Mangaluru. … Appellant (By Sri. Guruprasad B.R., Advocate) AND 1. National Insurance Company Ltd. Second Floor, Inland Ornate Navbharath Complex Opp: Hotel Ocean Pearl Mangaluru – 575 003. Represented by its Manager 2. Mr. Hamza S/o Cheriyonu Byari Aged 36 years R/at D.No.2-27A Kote Kani House Sajipa Padu Post Bantwal Taluk – 574 231. … Respondents (By Sri. Ashok N. Patil, Advocate for R1 Notice to R2 is d/w v/o dtd: 27.11.2018) This appeal is filed under Section 173(1) of MV Act, against the judgment and award dated: 01.09.2016 passed in MVC No.286/2015 on the file of the Principal District Judge, MACT, Dakshina Kannada, Mangaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Admission, this day, the Court delivered the following:
J U D G M E N T This appeal has been filed by the appellant/claimant challenging the impugned judgment and award dated 01.09.2016 passed by the Court of the Principal District Judge, M.A.C.T., Dakshina Kannada, Mangaluru (for short ‘the Tribunal’), in M.V.C.No.286/2015, awarding a sum of Rs.2,13,600/- together with interest at 6% p.a. from the date of petition till realization towards the injuries sustained by the appellant-claimant in a road accident that occurred on 11.10.2014.
2. Though the matter is listed for admission, with the consent of learned counsel for both the parties, the matter is taken up for final disposal.
3. Both the counsels submit that the occurrence of accident and the liability as well as the coverage of the policy of the offending vehicle by the Insurance Company are not in dispute and this appeal is restricted to quantum of compensation awarded by the Tribunal.
4. The learned counsel for the appellant submitted that the evidence and pleadings on record particularly, the evidence of Doctor-PW.2 would clearly establish that the appellant had suffered permanent disablement to an extent of 8% to the whole body. It is further submitted that the Tribunal has committed an error in not noticing this aspect having regard to the fact that the appellant was working as a barber and he had sustained injuries to the right upper limb. The aforesaid disablement hampered his occupation and resulted in loss of future income. It is submitted that the Tribunal has committed an error in not awarding any compensation towards ‘loss of future earnings’. According to the learned counsel for the appellant, the age of the appellant was 49 years and consequently, multiplier ‘13’ ought to have been applied by the Tribunal. Learned counsel for the appellant also submits that the Tribunal has committed an error in coming to the conclusion that the age of the appellant was 64 years on the date of accident and not 49 years as claimed by the appellant. In this context, learned counsel for the appellant submits that the un- impeached evidence of the appellant and Doctor-PW.2 coupled with the medical records produced clearly establish that the appellant was aged about 49 years as on the date of accident.
5. Per contra, learned counsel appearing on behalf of respondent No.1-Insurance Company would submit that police records such as FIR and charge sheet would indicate that the appellant was aged about 64 years as on the date of the accident and consequently, the findings recorded by the Tribunal that he was aged about 64 years was correct and proper.
6. It is true that there are several discrepancies in the material on record with regard to the age of the appellant on the date of accident. While the medical records and the oral evidence of PWs.1 and 2 would indicate that he was aged about 49 years, the police records would indicate that the age of the appellant was around 64 years. In view of the fact that there is no other evidence on record to substantiate the said aspect, I am of the opinion that for the purpose of computing the age of the appellant, an average/maximum age that can be taken is 55 years as on the date of the accident.
7. Having come to the conclusion that the appellant was 55 years as on the date of accident and for the purpose of computing ‘loss of future income’ based on the age of the appellant as 55 years, the proper multiplier applicable would be ‘11’ as held by the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation Limited and another reported in (2009) 6 SCC 121. As contended by the learned counsel for the appellant, the Tribunal committed grave and serious error in not awarding any compensation in favour of the appellant under the head of ‘loss of future earnings’. Taking the multiplier as ‘11’ since the age of the appellant is taken as 55 years, coupled with the lok-adalath guidelines which stipulate that the notional income ought to be taken as Rs.8,500/- since the accidence occurred in the year 2014, the appellant would be entitled to a sum of Rs.89,760/- under the head of ‘loss of future earnings’.
8. Learned counsel for the appellant is right in contending that consequent to coming to the conclusion that the notional income of the appellant was Rs.8,500/- per month, coupled with the material on record which would indicate that he was laid up for a period of 65 days, the Tribunal committed an error in awarding compensation taking laid up period as 36 days instead of 65 days. Accordingly, taking the notional income as Rs.8,500/- per month, the appellant would be entitled to additional compensation of Rs.14,700/- under the head of ‘loss of income during laid up period’.
9. The Tribunal has also committed an error in not awarding any compensation under the head of ‘loss of amenities’. In my opinion, it is to be quantified at Rs.25,000/-. It is the submission of the leaned counsel for the appellant that the Tribunal arithmetically and mathematically erred in coming to the conclusion that the appellant was laid up for a period of 36 days instead of undisputed fact that the appellant was laid up for a period of 65 days. Consequently, the Tribunal erred in granting compensation under the head of ‘attendant charges’ for a period of 36 days, which comes to Rs.7,200/- and compensation towards ‘nutritious food’ was granted in a sum of Rs.5,400/-. Having come to the conclusion that totally laid up period was 65 days, I am of the opinion that it is just and proper to enhance the compensation under the head of ‘attendant charges’ and ‘nutritious food’ respectively for a period of 65 days in favour of the appellant. Under these circumstances, I am of the view that the appellant would be entitled to an additional enhanced compensation for a sum of Rs.1,39,610/- as stated herein:
(in Rs.) Particulars Amount
10. In view of the aforesaid discussion, I pass the following;
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 01.09.2016 passed by the Court of the Principal District Judge, M.A.C.T., Dakshina Kannada, Mangaluru in M.V.C.No.286/2015, awarding a sum of Rs.2,13,600/- is hereby modified and thereby the appellant-claimant is entitled to enhanced compensation of Rs.1,39,610/- which shall carry interest at 6% p.a. from the date of petition till realization.
(iii) The apportionment and disbursement to be done as per the impugned judgment and award passed by the Tribunal.
No costs.
Sd/- JUDGE NR/-