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 MISCELLANEOUS FIRST APPEAL NO.6020 OF 2011 (MV) BETWEEN:
ZAHOOR AHMAD @ MOHAMMED ZAHOOR AHMED S/O MOHAMMED ZAHEER AHMAD AGED 37 YEAS, NO.22/3, 1ST FLOOR, 3RD CROSS, 5TH MAIN, S K GARDEN, BANGALORE – 560 032 ... APPELLANT (BY SRI.SYED KHALEEL PASHA, ADV.) AND:
1. PRAVESH DESHAMUKHA S/O VISWANATHAPPA DESHMUKHA AGED MAJOR NO.61-8, STREET, FORT KALASIPALYAM, BANGALORE - 560 002 2. THE MANAGER THE RELIANCE GENERAL INSURANCE CO. LTD., NO.28, CENTENARY BUILDING 5TH FLOOR, EAST WING, M G ROAD, BANGALORE - 560 001 (BY SRI.D S SRIDHAR, FOR R2;
NOTICE TO R1 IS DISPENSED WITH) ... RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.04.2011 PASSED IN MVC NO.8257/2009 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE, MACT, BANGALORE, 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 This the claimant’s appeal seeking enhancement in the compensation. In the claim petition filed by the injured for having suffered accidental injuries in the road traffic accident that took place on 03rd June, 2009, the Motor Accident Claims Tribunal, Bangalore by its award dated 11th April 2011 passed in MVC No.8257 of 2009 has awarded compensation of Rs.11,03,000/-. Against the same, this appeal is preferred.
2. The grounds taken by the appellant are that though the injured suffered an amputation of right leg, the Tribunal had taken the disability at 20% which is on the lower side. He submits that the functional disability should have been taken at 100%. His second ground is that though the income has been proved by producing Exhibits P9 and P10 which is the declared income and the claimant was an income tax assessee, and that his annual income is at Rs.1,92,000/- per annum which comes to Rs.16,000/- per month, by running a footwear shop, the same has not been taken. The learned counsel further submits the claimant has produced bills for having procured artificial limbs and the same has not been awarded. He also submits that the amount awarded under the heads pain and suffering, love and happiness is also on the lower side. Hence he submits to enhance the compensation.
3. The learned counsel for the respondent supports the order and submits that the compensation awarded itself is on the higher side and the same requires reduction.
4. Heard the learned counsel for the parties and gone through the records. It is not in dispute that the claimant suffered amputation of his right leg in the accident. In support of the income he has produced Exhibits P9 and P10 the salary certificate and the Income tax returns; and the doctors who have been examined have deposed that the injured has suffered 62% disability to the whole body. When such being the case and by looking a the age of the injured and also his avocation, income, and the tax returns and also having produced the Value Added Tax certificate, we are of the opinion that the injured has proved his income and the same income has been taken for the purpose of awarding compensation. But while doing so, the percentage of disability is taken at 20% for which the Tribunal has not assigned any reasons. Under these circumstances, by re-looking at the evidence of the Doctor and also looking at the age of the injured and also taking aid from the provisions of the Workmen’s Compensation Act, disability is to be assessed at 50%. Hence, the calculation would be Rs.16,000/- x 12 x 15 x 50% which comes to Rs.14,40,000/- and the same is awarded under the head loss of future income. Considering the agony that the claimant has to undergo throughout the rest of his life, an amount of Rs.70,000/- is awarded under the head pain and suffering in addition to what has been awarded by the Tribunal. Towards loss of happiness and future amenities the compensation is enhanced by another Rs.20,000/-.
5. As regards maintenance of artificial limb is concerned, the claimant has not produced any certificate before the Tribunal. But before this Court, by filing application the claimant has placed the certificate dated 16th November 2006 issued by Ottobock, Secunderabad that the cost of artificial limb provision of Ottobock Silicone liner with silicone sleeve with harmony functional ring with carbon fiber socket with foam cover and cosmetic socks, is Rs.1,06,800/-. Considering the cost of the artificial limb and also taking into account the normal life span of a person and we are inclined to award an amount of Rs.2,00,000/- for the purchase of artificial limb in lieu of Rs.25,000/- awarded by the Tribunal. The compensation awarded by the Tribunal under other heads are retained. Accordingly, the total compensation would be Rs. 22,37,000/- as against Rs.11,03,000/- awarded by the Tribunal. In the result, the appeal is allowed in part. The enhanced amount is to be credited directly to the account of the injured.
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ACTING CHIEF JUSTICE lnn Sd/- JUDGE