IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2019 PRESENT THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.2478 OF 2013 (MV) BETWEEN:
VASANTHA S.ACHAR AGED ABOUT 29 YEARS, S/O OF SUBRAYA ACHAR, JANATHA COLONY, UPPOOR VILLAGE, UDUPI TALUK. ... APPELLANT (BY SRI.PAVANA CHANDRA SHETTY H, ADV.) AND:
1. C.G.DEEPAK MAJOR, S/O GOPALA, PARALAM POST, AMMADAM, THRISSUR, KERALA STATE.
2. IFFCO TOKIO GEN. INS. CO. LTD.
REGD. OFFICE: IFFCO SADAN CI DIST. CENTRE, SAKET, NEW DELHI – 110 017 BY ITS AUTHORISED OFFICER. ... RESPONDENTS (BY SRI.B.PRADEEP, ADV. FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O DTD:13.02.2014) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.12.2012 PASSED IN MVC NO.866/2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, ACTING CHIEF JUSTICE DELIVERED THE FOLLOWING:
J U D G M E N T For the injuries suffered in the road traffic accident that took place on 28th May 2011 at about 21.30 hours, at which time he was going from Shirur to Bhatkal on his motorcycle bearing registration No.KA 03 EN 1719 on NH-17, the offending vehicle Tata Sumo bearing registration No.KL 08 AQ 6456 being driven in a rash and negligent manner came and dashed against the petitioner the impact of which the claimant sustained grievous injuries. Hence, he made claim petition before the Fast Track Court at Udupi seeking compensation. The Court below by its judgment and award and order awarded compensation of Rs.3,78,780/-. Being aggrieved by the same, the petitioner is before this court in this appeal.
2. The learned counsel appearing for the appellant- claimant submits that prior to accident the appellant was hale and healthy and was a carpenter by profession earning Rs.15,000/- per month. The accident has made him handicap that and his movements are restricted now. The appellant finds it difficult to climb, squat and do strenuous activities. He submits that the court below has taken the disability at 25% whereas the Doctor has assessed 42% permanent disability to the left lower limb and 23% permanent disability to the right lower limb. Hence, considering the same disability has to be taken at 100%. He also submits that the compensation awarded under all heads is on the lower side. He further submits that though the appellant has spent more than Rs.2,95,000/- towards medical expenses, the court below has awarded only Rs.1,33,780/-. Hence the learned counsel prays for enhancement of compensation.
3. On the contrary, the learned counsel appearing for the respondent-Insurance supports the judgment and order and supports to dismiss the appeal. He submits that the court below, after considering all the documentary proof and evidence adduced, has awarded the just compensation and the same does not call for interference in this appeal.
4. We have heard the learned counsel for the parties and gone through the judgment and order of the court below. We find some force in the submissions of the learned counsel for the appellant. The claimant has suffered the following injuries:
(i) (R) Femur shaft fracture;
(ii) (L) femur shaft with neck of femur fracture;
(iii) 4 x 1 x 1cm wound over (L) leg;
(iv) 4 x 0.2 x 0.25 cm wound over nose;
(v) 4 x 05 x 0.3cm wound over left parietal area;
(vi) closed head injury with cerebral oedema and abrasions over left side of the chest apart from other abrasions.
5. Considering the profession of the appellant and also taking into account that the accident is of the year 2011, the appropriate notional income is to be taken. In the case of this nature where the income is not proved by producing documentary proof or evidence, the courts should take the notional income considering the year of accident, place of residence, size of the family, cost of living prevalent then, etc.
In the instant case the accident is of the year 2011. This court, consistently, with relevance to the accidents of the year 2011, takes the income at Rs.6,500/- per month, and the same is taken in this case also. Considering the injuries and the evidence of doctors, we are inclined to take the disability at 50% to the whole body. Accordingly the compensation under the loss of future earning comes to Rs.6,63,000/- (Rs.6,500/- x 12 x 17 x 50%). The same is awarded as against Rs.1,53,000/- awarded by the court below. Considering the pain and agony the appellant has to undergo for his lifetime, another Rs.40,000/- is awarded under the head pain and suffering. It has also come in evidence that the appellant has been operated and for removal of implants, considering the escalation, we are inclined to award another Rs.15,000/- under the head future medical expenses. The court below has not awarded any amount towards conveyance, food and nourishment etc. Considering the length of hospitalisation, we are inclined to award Rs.10,000/- under the said head. By looking at the pathetic condition of the appellant and also considering the age of the appellant and the fact that he has several discomforts because of the accident, we are inclined to award another Rs.40,000/- towards loss of amenities. In the result, the total enhanced compensation would be Rs.6,15,000/-. The same shall carry interest at the rate as is awarded by the court below. Apportionment shall also be as per the award of the court below.
Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn Sd/- JUDGE