IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS M.F.A. NO.1492 OF 2012 (MV) BETWEEN VEERANNA GOWDA S/O. LATE HUCHE GOWDA AGED ABOUT 88 YEARS R/AT NO.90/5 (2) 3RD CROSS, 24TH MAIN 2ND STAGE, BTM LAYOUT KUVEMPUNAGAR BANGALORE 560076.
(BY SRI. T. A. KARUMBAIAH, ADVOCATE) AND:
1. THE DIRECTOR BMTC CENTRAL OFFICE BMTC, K H ROAD SHANTHINAGAR BANGALORE 560027.
2. THE MANAGER UNITED INDIA INSURANCE CO. LTD NO.19/9-19, 2ND FLOOR, SOUTH END ROAD, BASAVANAGUDI BANGALORE -560004.
... APPELLANT ... RESPONDENTS (BY SRI. K. SURESH, ADVOCATE FOR R2) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.09.2011 PASSED IN MVC NO.7052/2008 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T R.DEVDAS J., (ORAL):
The appellant/petitioner who was aged about 85 years met with an accident on 16.05.2008, involving a bus belonging to Bangalore Metropolitan Transport Corporation. The Tribunal has awarded a sum of Rs.93,400/- together with interest at the rate of 6% p.a on the claim petition filed by the appellant herein.
2. It is seen from the records that the appellant sustained deep lacerated (degloving) injury over the left foot including ankle, exposing upto the bones, tendons are exposed.
3. The appellant has examined the treating Doctor and has produced medical bills, wound certificate and x-rays to substantiate his contention and sought for compensation of Rs.3,80,000/-.
4. Learned counsel for the respondent-Corporation submits that the Tribunal has indeed considered the type of injuries suffered by the appellant and all the documentary evidence including oral evidence adduced by the treating Doctor. Learned counsel submits that a marginal enhancement be permissible in the facts and circumstances of the case.
5. It is seen that the Tribunal has taken notional income of the appellant at Rs.3,000/- p.m. In terms of the schedule prepared by this Court, notional income to be taken where there is no proof of income during the year 2008-2009 is Rs.4,500/- to Rs.5,000/-. The Tribunal has also reduced the economical or functional disability from 5% to 3% in spite of the evidence on record and the opinion of the treating Doctor. This Court is of the opinion that the opinion of the Doctor requires to be retained and functional disability should have been taken at 5%.
6. In that view of the matter, if the notional income has taken at Rs.5,000/- and the functional disability to be retained at 5%, the value to be taken is Rs.250/- multiplied by 12 and multiplier of 5, the loss of future earning capacity on account of 5% functional disability of the appellant comes to (5000x12x5x5%= 15,000) Rs.15,000/-.
7. Similarly, the loss of income during the laid up period shall be (Rs.5,000/- p.m. x 6 = 30,000) Rs.30,000/-.
8. Though the Tribunal has awarded Rs.36,240/- towards medical expenses and by adding a sum of Rs.4,000/- the same has been taken at Rs.40,000/-. However, the Tribunal has directed that from out of the compensation amount a sum of Rs.22,000/- together with proportionate interest shall be refunded to RW-1, namely, Sri. T.S.Chandra Shekhar S/o Shivappa, who according to the Tribunal, has already borne part of the medical expenses of the appellant herein. RW-1, Sri.T.S.Chandra Shekhar, who was bus driver, claims to have paid the said amount for the treatment of the appellant.
9. The Tribunal has declined or rejected some of the medical bills totaling to Rs.14,240/- as doubtful medical bills. In the opinion of this Court, the Tribunal is not justified in rejecting the medical bills produced by the appellant herein.
10. The Tribunal has accepted and awarded only Rs.13,240/- towards medical bills, which is in the opinion of this Court is not justified. The total medical bills produced by the appellant is Rs.48,966/- and the same shall be retained. The Tribunal has awarded a sum of Rs.40,000/- towards medical expenses and incidental expenses which is enhanced to Rs.50,000/-. The other heads of award granted by the Tribunal shall be retained.
11. As a consequence, total award shall be as follows:
(iii) Loss of future income on account:
Total Rs. 1,25,000/-
12. As a result, the compensation is enhanced from Rs.93,400/- to Rs.1,25,000/-. The enhanced compensation is Rs.31,600/-.
13. The respondents No.1 and 2 shall be jointly and severally liable to pay the enhanced compensation amount of Rs.31,600/- together with interest at the rate of 6% p.a from the date of claim petition until realization of the entire award amount to the appellant herein.
14. The direction given by the Tribunal regarding Rs.22,000/- to be refundable to RW-1, Sri. T.S.Chandra Shekhar, shall remain as it is.
The appeal is partly allowed. The judgment and award dated 03.09.2011, passed by the XII Additional Small Causes Judge & MACT, Bangalore, in M.V.C.No.7052/2008, is modified accordingly.
SD/- JUDGE DL