SRI. NAGAPPA v. SRI. VENKATESH REDDY

Judgment

2. SRI. VENKATESH REDDY AGED MAJOR, S/O. NAGAPPA R/AT T. KORACHARAHATTI RAJAPURA VILLAGE, SANDUR TALUK BELLARY DISTRICT 583 129 THE BRANCH MANAGER THE ORIENTAL INSURANCE CO LTD. SHARADA COMPLEX, OPP: KSRTC BUS STAND, B D ROAD, CHITRADURGA TOWN 577 501 (BY SMT.HARINI SHIVANAND, ADV. FOR R2; R1 SERVED, UNREPRESENTED) …RESPONDENTS

N Location: HIGH COURT OF KARNATAKA THE AGAINST THIS MFA IS FILED UNDER SECTION 173(1) OF MV AWARD ACT, DATED.26.07.2019 PASSED IN MVC NO.732/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MACT-III, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR OF COMPENSATION COMPENSATION. ENHANCEMENT JUDGMENT SEEKING AND AND THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 2 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 JUDGMENT In this appeal, the petitioner has challenged the judgment

26.07.2019 M.V.C.No.732/2018 passed by the Principal Senior Civil Judge and C.J.M. and M.A.C.T.-III ('the Tribunal' for short).

2. For the sake of convenience, the parties shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are, on 02.01.2018 at about 05:30 pm while the petitioner was riding the motor cycle bearing Reg.No.AP-09/AM-7934 along with his wife as a pillion rider near the land of one Umesha, Obalapura Village, Molakalmur Taluk, hit by another motor cycle bearing Chassis No.ME-4JC 654 DHT 025303 (offending motor cycle), injuring both of them. After taking treatment at Government Hospital, Molakalmur and V.I.M.S. Hospital, Bellary, petitioner approached the Tribunal for grant of compensation of Rs.20,00,000/-. Claim was opposed - 3 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 by the Insurance Company of the offending motor cycle. The Tribunal after taking the evidence, by impugned judgment, awarded compensation of Rs.3,14,105/- with 8% interest p.a. Pleading inadequacy and seeking enhancement, the petitioner has filed this appeal on various grounds.

4. Heard the arguments of Sri. B. Pramod, learned counsel for the petitioner and Smt. Harini Shivanand, learned counsel Insurance Company.

5. It is the contention of learned counsel for the petitioner that the petitioner has suffered fracture of both the bones of right forearm and fracture of right calcaneum, he was under hospitalization for 1 month; in spite of it, the Tribunal has not awarded the compensation properly, income assessed is on the lower side for assessment of loss of future earnings, no compensation is awarded towards loss of income during laid-up period and he sought for enhancement. - 4 - NC: 2024:KHC:1862 MFA No. 7915 of 2019

6. Per contra, learned counsel for the Insurance Company has contended that though the medical evidence speaks of 58% limb disability, the Tribunal has taken whole body disability at 20% which is on the higher side and she has no objection for awarding compensation towards loss of income during laid up and she sought for reduction of percentage of disability. It is further contended that the Tribunal has awarded 8% interest p.a. which is on the higher side as no banks will offer such a rate of interest on fixed deposits and it has to be reduced to 6% p.a.

7. I have given my anxious consideration to the arguments addressed on both sides and also perused the materials on record.

8. The material on record did point out that there was an accident on 02.01.2018 at 05:30 am at Obalapura Village involving 2 motor cycles, injuring the petitioner and his wife by the offending motor cycle. Medical record points out that the petitioner has suffered fracture of both the bones of right forearm, - 5 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 fracture of right calcaneum and he was under hospitalization 1 month. PW-3 Dr. Denkatashivareddy, the treated Doctor with reference to the age of the petitioner (55 years), being an Agricultural Coolie, made assessment of limb disability at 58% and the Tribunal has taken whole body disability at 20% which is on the higher side. At the age of 55, the petitioner suffering fracture of right upper and lower limbs, certainly affects his earning capacity as a Coolie. 15% is the reasonable whole body disability and accordingly it has to be assessed. The Tribunal has taken the notional income of the petitioner at Rs.8,000/-, whereas a person with no proof of income in the year 2018 will earn not less than Rs.12,500/-. The Tribunal has not awarded any compensation towards loss of income during laid-up period for which the petitioner has to be compensated.

9. The Tribunal has awarded compensation as follows: - 6 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 Sl. No. 1 2 3 4 5 Particulars Loss of future earnings Medical expenses Nourishment and miscellaneous expenses Pain, injuries and sufferings Loss of amenities, enjoyment of life and discomforts Rs. 2,11,200 7,905 10,000 25,000 60,000 Total 3,14,105 The method adopted by the Tribunal in awarding compensation is not proportionate to the gravity of the injury, age and avocation of the petitioner. The petitioner is entitled for just and proper compensation. He has to be paid a sum of Rs.60,000/- towards pain and sufferings, Rs.60,000/- towards loss of amenities and discomfort, medical expenses of Rs.7,905/-. The petitioner was inpatient for 1 month; hence, attendant charges has to be assessed at Rs.12,500/-, Rs.10,000/- towards food and nourishment and Rs.2,000/- towards travelling expenses. He was laid- up for 6 months, hence loss of income during laid-up period has to be assessed at Rs.75,000/- (Rs.12,500/- x 6). As regarding loss of future earnings is - 7 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 concerned, income is taken as Rs.12,500/-, '11' is the applicable multiplier. By applying the principles of National Insurance Co.Ltd. -Vs- Pranay Sethi and Others1, for a person aged 55 years with no proof of income, future prospects of 10% has to be added. Then, loss of future earnings will be Rs.12,500/- + Rs.1,250/- (10%) = Rs.13,750/- x 12 x 11 x 15% = Rs.2,72,250/-. There is no medical evidence explaining need of future treatment and expenses to be incurred by the petitioner. If all these are summed up, total compensation comes to: Sl. No. 1 2 3 4 5 6 5 6 Particulars Pain and sufferings Loss of amenities and discomfort Medical expenses Attendant charges Food and nourishment Travelling expenses Loss of income during laid-up for 6 months Loss of future earnings Total Rs. 60,000 60,000 7,905 12,500 10,000 2,000 75,000 2,72,250 4,99,655 1 (2017) 16 SCC 680 - 8 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 Total compensation comes to Rs.4,99,655/- as against Rs.3,14,105/-, thereby enhancement of Rs.1,85,550/-. This is the just compensation that the petitioner is entitled to in the facts and circumstances of the case.

10. Adverting to the argument of the interest component, no doubt that no banks will offer interest at 8% p.a. on fixed deposits. The Tribunal has exercised its discretion in awarding 8% interest p.a. Since the Insurance Company has not filed any appeal, it is not proper to meddle with it. Insofar as enhanced compensation is concerned, it is just and proper to award interest at 6% p.a. Accordingly, the appeal merits consideration, in the result, the following: ORDER i) Appeal is allowed-in-part. ii) Impugned judgment and award is modified. iii) Petitioner is entitled to enhanced compensation of Rs.1,85,550/- with interest of 6% p.a. - 9 - NC: 2024:KHC:1862 MFA No. 7915 of 2019 iv) The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of certified copy of the judgment. v) Amount in deposit, if any, shall be transmitted to the Tribunal along with records forthwith. Sd/- JUDGE PA CT:HS List No.: 1 Sl No.: 54