IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.733 OF 2017 (MV) BETWEEN Vasanthakumar S/o Maregowda Aged about 25 years R/at Alahally Village Kollegala Taluk Chamarajanagara District – 571 441. … Appellant (By Sri. Sreenivasan M.Y, Advocate) AND 1. K.Dasharath S/o Krishnappa, Major R/at No.630, Krishna Rice Mill Road Chamaraja Mohalla Mysuru – 570 007.
2. The Branch Manager IFFCO TOKIO General Insurance Co. Ltd., No.846, New Kantharaj Road Above Krishna Bakery Near Akshaya Bhandar Kuvempu Nagar Mysuru – 570 019.
3. Pari S/o S.M.Ramaswamy Major, M/s Sachin Motor Roadways Ward No.6, Chandupura Main Road Near Petrol bunk, Anekal, Bengaluru – 560 061.
4. The Branch Manager HDFC ERGO General Insurance Co. Ltd., Mysore Trade Centre, KSRTC Bus Stand B N Road, Mysuru – 570 001. … Respondents (By Sri. E.I Sanmathi, Advocate for R2, Notice to R1, R3 & R4 d/w) This appeal is filed under Section 173(1) of MV Act, against the judgment and award dated: 19.07.2016 passed in MVC No.509/2014 on the file of the Senior Civil Judge and JMFC, Kollegal, 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:
JUDGMENT This appeal has been filed by the appellant/claimant challenging the impugned judgment and award dated 19.07.2016 passed by the Court of Senior Civil Judge and Judicial Magistrate First Class at Kollegal (for short ‘the Tribunal’), in M.V.C.No.509/2014, awarding a sum of Rs.7,33,180/- together with interest at 6% p.a. from the date of petition till the date of realization towards the injuries sustained by the appellant-claimant in a road accident that occurred on 01.10.2014.
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 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 Tribunal has awarded a total compensation of Rs.7,33,180/- in favour of the appellant which is as hereunder:
(in Rs.) Particulars Amount Injury, pain and suffering 40,000/-
5. The learned counsel for the appellant submitted that the Tribunal has committed an error in coming to the conclusion that the notional income of the appellant should be taken as Rs.6,000/- per month. In this context, learned counsel for the appellant invites my attention to lok-adalath guidelines, which stipulate that in the absence of proof of income, the notional income in respect of the accident that occurred in the year 2014 should be taken at Rs.8,500/- per month. It is also contended that the Tribunal has committed an error in coming to the conclusion that the appellant had suffered disability of only 30% to the entire body. The learned counsel for the appellant submits that having regard to the nature and seriousness of the injuries suffered by the appellant including fractures of right humerus and right ulna coupled with the fact that he was an agriculturist by profession, the Tribunal committed an error in coming to the conclusion that the permanent disability to the entire body of the appellant was only 30% without appreciating the unimpeached evidence of PW.1, PW.2 and the doctor examined as CW.1 coupled with the medical evidence on record. It is therefore contended that the appellant would be entitled to an additional compensation under the head ‘loss of future earnings’ by taking the permanent disability of the entire body of the appellant as 35% instead of 30% has wrongly held by the Tribunal. Thirdly, it is contended by the learned counsel for the appellant that consequent upon the taking notional income of the appellant as Rs.8,500/- instead of Rs.6,000/-, the appellant would be entitled to an additional compensation under the head of ‘loss of income during laid-up period’ proportionate to the notional income. Fourthly, it is contended that the Tribunal has committed an error in awarding highly meager and insufficient compensation under the conventional heads viz., ‘conveyance such food, nourishment, pain and suffering and loss of amenities’. Lastly it is contended that having regard to the nature of injuries sustained by the appellant coupled with the fact that he was inpatient for a period of 47 days as well as the umimpeached evidence of the Doctor-CW.1 who has deposed that the appellant would require atleast sum of Rs.4,00,000/- for undergoing artificial joint replacement surgery, humerus transfer surgery and neuro surgery, the sum of Rs.30,000/- awarded under the head ‘future medical expenses’ is highly insufficient and that the same requires enhancement by this Court.
6. Per contra, learned counsel for the respondent No.2 – insurance company would support the impugned judgment and award passed by the Tribunal and sought for dismissal of the appeal.
7. I have given careful consideration to the rival submissions and perused the material on record.
8. As rightly contended by the learned counsel for the appellant that the impugned judgment and award indicate that the Tribunal has committed an error in taking notional income of the appellant as Rs.6,000/- per month. In this context, the Tribunal failed to consider and appreciate the lok-adalath guidelines which stipulate that the notional income should be taken in Rs.8,500/- p.m., since the accident undisputdly occurred in the year 2014. Further, the unimpeached evidence of the doctor-CW.1 and other material on record would also indicate that the appellant being an agriculturist by profession and having suffered grievous injuries to his limbs which requires corrective medical procedures in the future also, there was permanent disability to the entire body to an extent of 35%. The Tribunal has committed an error in coming to the conclusion that the disability to the entire body was only to an extent of 30% and the appellant is entitled to enhance the compensation on these ground also. Accordingly, the appellant would be entitled to the enhancement of the compensation under the head ‘loss of future earnings’. Accordingly, the appellant would be entitled total compensation of Rs.6,06,900/- under the head ‘loss of future earnings’. as hereunder.
8,500 X 35/100 X 12 X 17 = Rs.6,06,900/-.
9. Consequent to my finding that the notional income of the appellant has to be taken as Rs.8,500/- per month, the appellant would be entitled to sum of Rs.34,000/- for a period of four months under the head ‘loss of income during laid-up/treatment period’.
10. A perusal of the impugned judgment and award would also indicate that the Tribunal has committed an error in awarding insufficient and inadequate compensation under the heads ‘food, nourishment, etc., pain and suffering and loss of amenities etc., and the same requires enhancement in a sum of Rs.10,000/- and Rs.15,000/- respectively. Lastly, as rightly contended by the learned counsel for the appellant and in view of the unimpeached evidence of PW.2 to the effect that the appellant requires a sum of Rs.4,00,000/- towards ‘future medical expenses’, I am of the opinion that the appellant would be entitled to the total compensation of Rs.50,000/- under the head ‘future medical expenses’.
11. In view of the facts and circumstances narrated above, the appellant would be entitled to the total compensation of Rs.10,43,880/- is stated hereunder.
(in Rs.) Particulars Amount
The Tribunal having awarded Rs.7,33,180/-, the appellant would be entitled to an additional enhanced compensation of Rs.3,10,700/- together with interest at 6% p.a. from the date of claim petition till realization.
12. In view of the aforesaid discussion, I pass the following;
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 19.07.2016 passed by the Court of Senior Civil Judge and Judicial Magistrate First Class at Kollegal in M.V.C.No.509/2014 is hereby modified and the appellant-claimant is entitled to additional enhanced compensation of Rs.3,10,700/- which shall carry interest at 6% p.a. from the date of petition till realization.
(iii) The enhanced compensation amount is hereby directed to release in favour of the appellant.
Ordered accordingly. No costs.
Sd/- JUDGE ssb