Karnataka High Court
Jagadisha vs M/S Karnataka Mobile Cranes on 5 September, 2019
Author: S.G.Pandit
Bench: S.G. Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE Mr. JUSTICE S.G. PANDIT
M.F.A. No. 710/2014 (MV)
BETWEEN :
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Jagadisha
S/o. Adaviyappa
Aged about 33 years
R/a. 1st Main, 1st Cross
Behind Shivamma Hotel
Nelgadiranahalli
Nagasandra Post
Bangalore - 560 073. ... APPELLANT
(By Sri. H.V. Bhanu Prakash, Adv.)
AND :
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1. M/s. Karnataka Mobile Cranes
Rep. by Proprietor
Nagaraja
No. 425, 1st floor
10th Cross, 8th Main
Bhuvaneshwarinagara
T, Dasarahalli
Bangalore - 57.
2
2. The Manager
M/s. Oriental Insurance
Co. Ltd., VP-IV, 1st A Cross
Police Station Road
1st Stage, Peenya
Bangalore - 560 058. ... RESPONDENTS
(By Sri. E.R. Diwakar, Adv., for R-2
R-1 notice dispensed with V/o. dated 17.10.2016)
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This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 06.04.2013
passed in MVC No. 2941/2012 on the file of 13th
Additional Small Cause Judge, Member, MACT, Court of
Small Causes, Bangalore, partly allowing the claim
petition for compensation and seeking enhancement of
compensation and etc.
This MFA coming on for Orders this day, the Court
delivered the following;
JUDGMENT
The claimant is before this Court in this appeal not being satisfied with the quantum of compensation awarded under judgment and award dated 06.04.2013 in MVC No. 2941/2012 on the file of MACT, Bengaluru.
2. The Claimant filed claim petition under Section 166 of Motor Vehicles Act claiming compensation for the 3 injury sustained in a road traffic accident. It is stated that on 28.03.2012 when the claimant was walking on the left side of the road, crane bearing No. KA-52-M- 1208 driven in a rash and negligent manner dashed against the claimant. Due to the impact the claimant fell down and sustained grievous injuries. Immediately he was shifted to Ravi Kirloskar Hospital and was treated as in-patient for four days. As on the date of accident the claimant was aged 31 years.
3. On issuance of notice, the respondent No. 2 - insurer appeared and filed statement admitting issuance of policy. It is contended that the vehicle in question was not involved in the accident and there was delay in lodging the complaint. It is stated that the Driver of the vehicle had no valid and effective Driving License as on the date of accident. It is also stated that the claim is too excessive and exorbitant. 4
4. The claimant examined himself as P.W.1 and examined the Doctor as P.W.2 in support of his case apart from marking Ex.P.1 to Ex.P.15. The Tribunal, on analysing the material placed before it, awarded total compensation of Rs.2,47,000/- with 6% interest per annum from the date of filing of the petition till the realization on the following heads:
Pain and sufferings - Rs.40,000/-
Medical Expenses - Rs.56,000/-
Loss of earning during
the laid up period - Rs.10,000/-
Loss of future earning - Rs.96,000/-
Loss of amenities - Rs.30,000/-
Future medical expenses - Rs.15,000/-
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TOTAL Rs.2,47,000/-
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5. While awarding the above compensation the Tribunal assessed the income of the claimant at Rs.5,000/- per month and assessed whole body disability at 10%. Being aggrieved by the quantum of 5 compensation, the claimant is before this Court in this appeal.
6. Heard learned counsel for the appellant and the learned counsel for respondent. Perused the material on record.
7. Learned counsel for the appellant submits that the income assessed by the Tribunal at Rs.5,000/- per month is on lower side. Learned counsel states that the claimant was working as coolie-cum-helper and was earning Rs.7,500/- per month. Due to accidental injuries he is not able to do the same work as he was doing earlier. Further he contends that P.W.2 - Doctor has opined that the claimant has suffered 28% disability to right lower limb and 10% disability to the whole body. It is his submission that the Tribunal ought to have taken the disability at 28% for determining the disability since the disability of limb comes in the way of the claimant's avocation. Learned counsel further 6 submits that the compensation awarded under various heads are on the lower side and also submits that the Tribunal has failed to award compensation under the heads of conveyance and attendant charges and food and nourishment.
8. Having heard the learned counsel for appellant and having perused the material on record, the only question that arises for consideration is, Whether the claimant would be entitled for enhancement of compensation?
9. The answer to the above question is in the affirmative for the following reasons:
The accident is of the year 2012. The accident involving the crane bearing No. KA-52-M-1208 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant states that he was working as a coolie-cum-helper and war earning Rs.7,500/- per month. In support of his contention that he was earning 7 Rs.7,500/- per month the claimant has not placed any material on record. In the absence of any material to indicate the exact income of the claimant the Tribunal assed the income notionally at Rs.5,000/- per month. The assessment of income by the Tribunal at Rs.5,000/- per month is on the lower side. This Court and the Lok Adalaths while settling the accident claims of the year 2012 would normally take notional income at Rs.7,000/- per month. In the present case in the absence of any material to indicate the exact income of the claimant it is appropriate to take the notional income of the claimant - injured at Rs.7,000/- per month.
10. The claimant has suffered the following injuries:
1. Type 1 compound fracture both bones right leg
2. Puncture wound over medical aspect of middle right leg 8
3. Lacerated would over lateral aspect of middle one third right leg
11. The claimant was in-patient for four days. Ex.P.7 is the discharge summary. Ex.P.6 is the wound certificate. P.W.2 - the Doctor who is an orthopedic surgeon has opined that the claimant suffers from 28% disability to the right limb and 10% disability to the whole body. The Tribunal, taking into consideration the evidence of P.W.2 - the Doctor and the medical records, has rightly come to the conclusion that the claimant suffers from 10% disability to the whole body. The claimant has failed to state and demonstrate how the injury suffered would come in the way of day-to-day work and his avocation. Hence, the disability assessed by the Tribunal needs no interference. The claimant was in-patient for four days. Looking to the injuries suffered and the treatment taken by the claimant he would be entitled for compensation of Rs.10,000/- towards 9 attendant and conveyance charges and a sum of Rs.15,000/- towards food and nourishment. Thus the claimant would be entitled for the following modified compensation:
Loss of future earning - 1,34,400.00 (7000 X 12 X 16 X 10/100) Pain and suffering - 40,000.00 Medical expenses - 56,000.00 Loss of earning during laid up Period - 10,000.00 Loss of amenities - 30,000.00 Future medical expenses - 15,000.00 Attendant and conveyance Charges - 10,000.00 Food and nourishment - 15,000.00
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TOTAL - 3,10,400.00
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12. Thus the claimant would be entitled for total compensation of Rs.3,10,400.00 with interest at the rate of 6% p.a. from the date of petition till realization as 10 against Rs.2,47,000/- awarded by the Tribunal. The claimant would not be entitled for interest on a sum of Rs.15,000/- awarded under the head of future medical expenses.
13. The appeal is allowed in part. The judgment and award of the MACT, Bangalore, dated 06.04.2013 in MVC No. 2941/2012 is modified to the above extent.
Lower Court Records be returned forthwith.
Sd/-
JUDGE.
LRS.