M. VINODRAJU v. IFFCO TOKIO GEN INS CO LTD

IFFCO TOKIO GEN INS CO LTD NO.41, 2ND FLOOR, CRISTU COMPLEX, LEVELLE ROAD, BANGALORE- 560 003.

B. C. SUHAS S/O B.S.CHIDANANDAREDDY, AGED ABOUT 30 YEARS, SRE TRAVELS HEAD POST OFFICER, CHITRADURGA-577501

D. SHILPA W/O K.V.BHARATHKUMAR, AGED ABOUT 37 YEARS, MODEL HOUSE, 4TH STREET, BASAVANAGUDI, BANGALORE-04.

BHARATHI AXA GIC LTD.,

1ST FLOOR, THE FIRMS ICON, SHARADAVANI B Location: High Court of Karnataka - 2 - NC: 2025:KHC:36006 MFA No. 2059 of 2013 HC-KAR SURVEY NO.28, NEXT TO AKME BALLET, DODDANEKUNDI, OFF, OUTER RING ROAD, BANGALORE- 37 (BY SRI. B. PRADEEP, ADVOCATE FOR R1; V/O DTD 30.06.14 NOTICE TO R2 D/W; V/O DTD 02.09.2016 NOTICE TO R3 D/W; SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R4) …RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2012 PASSED IN MVC NO.1318/2011 ON THE FILE OF THE VIII ADDITIONAL JUDGE, AND MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA ORAL JUDGMENT This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the common judgment and award dated 05.12.2012 passed in MVC No.1318/2011, by the Motor Accident Claims Tribunal-V, Court Small Causes, Bangalore City(hereinafter referred has 'Tribunal' for short). - 3 - NC: 2025:KHC:36006 MFA No. 2059 of 2013 HC-KAR

2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2- Insurance Company. Notice to respondent Nos.2 & 3 is dispensed with.

3. The petitioner/injured claimant had application before the Tribunal for compensation of Rs.10,00,000/-. The Tribunal considering the entire evidence on record granted an amount of Rs.1,59,600/- with interest at the rate of 6% per annum from the date of filing the petition till the date of realization. Aggrieved by the said order, this appeal is filed.

4. It is contended by the learned counsel for the appellant that the appellant/injured had sustained a fracture of the left femur and tibia and other injuries. He was admitted as an inpatient for ten days and underwent surgery on both legs for insertion of implants. A fixation of nail was also done. Thereafter, he took treatment as an outpatient for several months. Though the doctor assessed the permanent disability at 60%, the Tribunal erred in awarding only Rs.5,000/-, Further, the Tribunal has - 4 - NC: 2025:KHC:36006 MFA No. 2059 of 2013 HC-KAR wrongly taken his income as Rs.3,000/- per month and the compensation awarded is meager. He was aged 23 years at the time of accident and he was working as a supervisor, earning a salary of Rs.10,000/- per month. The compensation awarded under other heads is also less. It is further submitted that the interest awarded at the rate of 6% per annum is on the lower side and is liable to be enhanced to 9% per annum. Therefore, the appellant seeking for enhancement of the compensation.

As per the evidence of doctor-PW-5, petitioner sustained leg fracture of left femur and displacement of tibia and he has undergone surgery, he assessed the disability on 02.07.2012 and found that there is a scar mark on the darsel aspect of left thigh and there is restriction of movement at knee joint and hip joint, and assessed disability to an extent of 60% to the entire limb.

The Tribunal observed that the appellant was working as a supervisor and accordingly assessed his functional disability at 5%, though the doctor had assessed the permanent physical disability at 60%. The - 5 - NC: 2025:KHC:36006 MFA No. 2059 of 2013 HC-KAR Tribunal, has taken 1/3rd of the disability and awarded Rs.15,000/-, under that head. However, this Court finds it reasonable to modify the same as 15%.

Though the appellant stated that he was earning Rs.10,000/- per month, he has not produced any documentary evidence to substantiate the same. In the absence of proof of income, the notional income is to be taken as per the guidelines given by Karnataka State Legal Services Authority. Since the accident occurred in the year 2011, this Court finds it reasonable to take his income as Rs.6,500/- per month and multiplier as '18'. Therefore, 'loss future' income calculated Rs.6,500x12x18x15% = Rs.2,10,600/-.

The Tribunal has awarded a sum of Rs.60,000/- towards medical expenses and Rs.10,000/- towards future medical expenses. This Court finds no reason to interfere with the said award.

Having regard the nature of injuries sustained and the evidence on record, this Court finds it - 6 - NC: 2025:KHC:36006 MFA No. 2059 of 2013 HC-KAR appropriate to enhance the compensation by awarding Rs.40,000/- under the head of pain and agony, and Rs.30,000/- towards loss of amenities.

The appellant might not have attended any work for a period of at least three months during the treatment period. Therefore, this Court finds it reasonable to grant compensation towards loss of income for this period, amounting to Rs.19,500/- (6,500x3 months).

Thus in all, components awarded by this Court are as below, Particulars Pain and suffering Loss of future income Loss of amenities Medical expenses Future income income during Loss of laid up period Future medical expenses Amount in Rs. 40,000/- 2,10,600/- 40,000/- 60,000/- 30,000/- 19,500/- 10,000/- TOTAL 4,10,100/- - 7 - NC: 2025:KHC:36006 MFA No. 2059 of 2013 HC-KAR

In summary, the appellant/claimant is entitled to a total compensation of Rs.4,10,100/- as opposed to Rs.1,59,600/- awarded by the Tribunal. The enhanced compensation amounts to Rs.2,50,500/-. To this extent, the award passed by the Tribunal is modified.