(BY SRI. SHANTHARAJ K, ADVOCATE) v. Karnataka

3. Brief facts of the case are as under: That on 08.08.2017 at about 11.30 a.m., the claimant was proceeding in Bajaj Pulsar Motorbike bearing registration No.KA-06/EV-3017 as a pillion rider along with one Girish, who was riding the said motor bike, when the motor bike reached in front of Sadananda Dhaba, Bellavi - 3 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 Hobli, Tumakuru Taluk, the rider of the said motor bike drove the vehicle in a rash and negligent manner, all of a sudden he applied brake, due to which the claimant fell down and sustained fracture of left front temporal acute subdural hemmorrhage, left front temporal contusion, right temporal parietal extra dural hemmorrhage and other injuries all over the body. Immediately, she was shifted to District Hospital, Tumakuru, wherein, first aid treatment was given and thereafter, to Sparsh Hospital, Bengaluru and admitted as an inpatient from 08.08.2017 to

24.08.2017 for a period of 18 days and treated conservatively by the Doctors and surgical operations were also made on her. The claimant spent more than Rs.6,00,000/- towards medical expenses and other incidental charges.

3.1 It is stated that the claimant was hale and healthy prior to the occurrence of accident. She was running stall and petty shop business at Vasanthanarasapura Industrial area, Tumakuru apart from - 4 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 household works and earning an income of Rs.20,000/-. Due to the occurrence of accident, she had suffered mentally, physically and financially. Hence, the claimant filed a claim petition seeking enhancement.

3.2 On service of notice, respondent Nos.1 and 2 appeared through their counsel and filed written statement denying the averments made in the claim petition including age, avocation, income and negligence attributed to the rider of the motor cycle. Hence, sought for dismissal of the claim petition.

3.3 On the basis of pleadings, the tribunal framed relevant issues for consideration.

3.4 In order to substantiate the issues and to establish the case, the claimant got examined herself as PW.1 and Doctor as PW.2 and got marked documents as Exs.P1 to P16. On the other hand, respondents did not adduce their evidence either oral or documentary. - 5 - NC: 2024:KHC:4002 MFA No. 1079 of 2020

3.5 On the basis of material evidence, both oral and documentary and on hearing the submission of learned counsel for both parties, tribunal awarded compensation of Rs.12,28,000/- with interest @ 6% per annum from the date of petition till its realization (the petitioner is not entitled for interest on the amount awarded towards future medical expenses) and also held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation with interest to the claimant and respondent No.2 being the insurer was directed to deposit the compensation amount within two months from the date of award.

3.6 Being aggrieved by the meager compensation awarded by the tribunal, the claimant is before this Court challenging the impugned judgment and award.

4. It is the vehement contention of the learned counsel for appellant-claimant that the tribunal has committed an error in not appreciating the material evidence and exhibits produced with regard to the income, - 6 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 avocation, medical condition, disability neuropsychological disorder of the claimant while computing the compensation. He further contends that the tribunal has committed an error in reducing the disability to 20%, whereas, PW.2-Doctor had assessed the disability to 25% to the whole body.

4.1 Learned counsel for appellant-claimant contends that Ex.P16 is the medical report furnished by Ramaiah hospital, which on examination of the patient by the Neuropsychologist has reported that the claimant has undergone disability to an extent of 100% with an I.Q. of '38'. Therefore, he contends that the disability is to be taken at 100% as the claimant has suffered severe neuropsychological disorder due to the occurrence of the accident. He further contends that on other heads also, the tribunal has awarded meager compensation without taking into consideration the magnitude of the injures suffered and the disability encountered by the claimant in her day to day activities for the present and future. - 7 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 Accordingly, he seeks to allow the appeal preferred by the claimant and seeks enhancement of compensation.

5. Per contra, learned counsel for Insurance Company vehemently contends that the tribunal has awarded just and reasonable compensation taking into consideration the totality of the evidence placed on record including documents and the tribunal has assessed the income correctly, in view of there being no proper proof of income, so also the disability has been reduced to 20%, is correct and the same does not call for interference. Therefore, on these grounds, he seeks to dismiss the appeal.

6. Having heard the learned counsel for appellant- claimant and learned counsel for Insurance Company, perused the impugned judgment and award and also original records, which are before the Court, Exs.P1 to P16 are the documents produced and marked on behalf of the claimant. On perusal of these exhibits, Exs.P1 to P7, which are police records, it is apparently clear that there is - 8 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 a criminal case registered, filing of FIR and charge sheet against the rider of the motor cycle, whereby, the negligence is proved by production of these documents as the same is not disputed by the rider of the motor cycle- respondent No.1 by challenging the same. Exs.P8 to P16 are the medical records, which are placed on record by the claimant to show her medical disability. Out of these medical records, the claimant has produced medical bills to an extent of Rs.7,82,653/-, which does not call for interference or enhancement as the same is awarded on the basis of actual bills produced.

7. The other important document is Ex.P16-case sheet, which is produced by the claimant through Ramaiah Hospital, which depicts the disability assessed therein 100% and the I.Q. level of the claimant would be 38. It is the evidence adduced by the claimant that she was doing petty shop business earning Rs.20,000/- per month. However, no material is placed before the Court to show any proof of income. Hence, the tribunal has assessed the - 9 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 income at Rs.8,000/- per month, whereas, the notional income chart of the Legal Services Authority prescribes the income of Rs.11,000/- for the accident of the year 2017.

8. In view of the document placed with regard to the statement given in the police records and FIR, the complainant, who is none other than the husband of the claimant has stated that, she was doing petty shop business and was traveling to and fro. Ex.P12 is the letter issued by the Panchyath to show that she was doing hotel business. However, the same runs contrary to the statement made by the husband of the claimant. But, the fact remains that she was doing some business, where she was traveling everyday to and fro, which will have to be assessed on a guess by the Court, in view of non- production of any proof of income. But, at the same time, the claimant cannot be treated as a daily wager or a labour to take the notional income chart amount prescribed by the Legal Services Authority. Hence, this Court is of the opinion that an amount of Rs.15,000/- is to - 10 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 be taken for rough assessment of the income of the claimant for computation. The age of the claimant was 32 years at the time of accident. The tribunal has rightly applied the multiplier at ‘16’, which does not call for interference.

9. PW.2-Doctor has assessed the disability to an extent of 25% and the same is assessed as permanent neuropsychological disability, whereas, the tribunal has assessed the disability at 20% to the whole body, the assessment made by the tribunal cannot be accepted. But, the simple reason that the tribunal cannot sit over the judgment of opinion expressed by the Doctor, who is an expert in the field of medicine and so also Super Specialist in the field of neuropsychology. Neither the tribunal nor this Court is having an expertise with regard to field of medicine. At the most the functional disability can be assessed by the tribunal and this Court in view of PW.2- Doctor having assessed the disability to an extent of 25%. Ex.P16 produced by the claimant which shows 100% - 11 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 disability and I.Q. of the claimant to be ‘38’. This Court is of the opinion that the disability requires to be taken at 25% and it appears from the records produced at Ex.P16, which is in the case sheet that there is a lot of difficulty for the claimant in recognizing the persons due to the injuries suffered in the temporal parietal region.

10. Under the circumstances, the claimant would also be entitled to future prospects, considering the facts and circumstances of the case. The disability will have to be taken at 25% as against 20% assessed by the tribunal. Therefore, the claimant would be entitled compensation of Rs.10,08,000/- (Rs.15,000/- + 40% = Rs.21,000/- x 12 x 16 x 25%) towards loss of future income due to disability as against Rs.3,07,200/- awarded by the tribunal.

11. Towards pain and suffering, tribunal has awarded Rs.24,000/-. I am in agreement with the learned counsel for claimant that the same is on the lower side, considering the magnitude of injuries suffered by the - 12 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 claimant and having encountered neuropsychological disorder due to the occurrence of accident, at least Rs.1,00,000/- would have to be awarded. The same is awarded at Rs.1,00,000/- as against Rs.24,000/- under this head.

12. Towards medical expenses, Rs.7,82,653/- is awarded by the tribunal on the basis of actual bills produced by the claimant, which also does not call for interference.

13. Towards food, nourishment and conveyance and attendant charges, the tribunal has awarded Rs.15,000/- each, in all Rs.30,000/-. Whereas, the claimant was inpatient for a period of 22 days, therefore, it would be appropriate to award an additional of Rs.25,000/-. In all, the claimant would be entitled to Rs.55,000/- (Rs.30,000/- + Rs.25,000/-) under this head.

14. Towards loss of income during laid-up period, the tribunal has awarded Rs.24,000/-. In view of enhancement of the income by this Court to Rs.15,000/- per month, the - 13 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 claimant would require atleast four months period to recuperate and to get back to her normal day to day activities. Therefore, the claimant would be entitled to Rs.60,000/- (Rs.15,000/- x 4) under this head.

15. Towards loss of amenities, the tribunal has awarded Rs.30,000/-. This Court is of the opinion that atleast Rs.1,00,000/- requires to be awarded under this head considering the injuries suffered and disability encountered by the claimant including the loss of I.Q. level having gone down to ‘38’. The same is awarded at Rs.1,00,000/- as against Rs.30,000/- under this head.

16. The tribunal has awarded a sum of Rs.30,000/- towards future medical expenses, the same does not call for interference.

17. In view of the above, the claimant would be entitled to a total compensation of Rs.21,35,653/- as against Rs.12,28,000/- as mentioned in the table below: Heads Pain and suffering Medical expenses Amount in Rs. 1,00,000-00 7,82,653-00 - 14 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 nourishment, Food, conveyance and attendant charges Loss of income during laid- up period Loss of future income due to disability Loss of amenities Future medical expenses TOTAL 55,000-00 60,000-00 10,08,000-00 1,00,000-00 30,000-00 21,35,653-00 i) ii)

18. Accordingly, I pass the following: ORDER The appeal is allowed-in-part; The judgment and award dated 27.02.2019 passed by II Additional District Judge and MACT, Tumakuru in MVC.No.1091/2017 is modified; iii) The claimant would be entitled to a sum of Rs.21,35,653/- as against Rs.12,28,000/-; iv) The enhanced compensation amount shall be paid by the respondent-Insurance Company within a period of four weeks from the date of receipt of a copy of this order; - 15 - NC: 2024:KHC:4002 MFA No. 1079 of 2020 v) The enhanced compensation shall carry interest @ 6% p.a.; vi) All other terms and conditions stipulated by the tribunal shall stand intact. Sd/- JUDGE CPN CT: BHK