Nagaraju vs The Manager
2021 Latest Caselaw 5369 Kant

                             1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 3RD DAY OF DECEMBER, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              M.F.A. NO.7156 OF 2014 (MV-INJ)

BETWEEN:

NAGARAJU
S/O MUNISWAMAIAH
AGED ABOUT 56 YEARS
R/A NO.3, 8TH CROSS
HONGASANDRA,
BEGUR MAIN ROAD
BANGALORE-68.

AS PER VOTER ID CARD
NO.78, GUGAREDODDI,
KANAKAPURA TALUK
BANGALORE RURAL DISTRICT.
                                         ... APPELLANT
(BY SRI. SHRIPAD V, SHASTRI, ADVOCATE)

AND:

1.     THE MANAGER
       BAJAJ ALLIANZ GENERAL
       INSURANCE CO. LTD.,
       GROUND FLOOR, NO.31,
       TBR TOWER, I CROSS,
       NEW MISSION ROAD
       BANGALORE STOCK EXCHANGE
       BANGALORE-27.
                                 2


2.   MR SHIVACHARAN GANDLURI
     S/O PADMANABHA SASTRY
     GANDLURI, NO.284, 5TH CROSS
     12TH MAIN, SECTOR-5,
     HSR LAYOUT
     BANGALORE-560 102.
                                               ... RESPONDENTS

(BY SMT.H.R.RENUKA, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.08.2014 PASSED IN MVC
NO.5075/2013 ON THE FILE OF THE MEMBER, PRINCIPAL MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND     SEEKING    ENHANCEMENT     OF
COMPENSATION.

    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

The captioned appeal is filed by the claimant seeking

enhancement of compensation.

2. The appellant filed claim petition for having

sustained grievous injuries in a road traffic accident dated

09.09.2013. The appellant claimed that he is a vegetable

vendor and carries out his business by using a pushcart and

was earning Rs.300/- per day. To establish the disability

incurred on account of the accident, the present appellant

herein examined the Doctor as PW.3 and placed reliance on

medical evidence vide Ex.P-6 coupled with ocular evidence of

PW.3.

3. The Tribunal having assessed the oral and

documentary evidence, assessed the disability at 6.5% and by

notionally assessing the income at Rs.5,000/- and by applying

multiplier of 11 has awarded a sum of Rs.42,900/- under the

head of future loss of earning. Having regard to the gravity of

injuries, the Tribunal has awarded a sum of Rs.35,000/-

towards pain and agony, Rs.20,000/- towards loss of

amenities, Rs.10,000/- towards laid up period and Rs.78,000/-

towards medical expenses. The Tribunal, in all, has awarded

total compensation of Rs.1,85,900/-.

4. Learned counsel for the appellant reiterating the

grounds urged in the appeal, would submit to this Court that

the Tribunal erred in assessing the disability at 6.5% and the

same is contrary to the clinching medical evidence on record.

Placing reliance on ocular evidence of PW.3 who has opined

that appellant has permanent disability to an extent of 9%, he

would submit to this Court that disability has to be reassessed

in terms of clinching medical evidence on record. Learned

counsel would also submit to this Court that Tribunal erred in

notionally assessing the income of the deceased at Rs.5,000/-

and therefore, he would submit to this Court that the income

assessed by the Tribunal is on the lower side and therefore,

warrants interference at the hands of this Court.

5. Per contra, learned counsel appearing for the

respondent/Insurance Company would however support the

findings arrived at by the Tribunal. She would submit to this

Court that there is absolutely no material documents

indicating the actual income of the appellant. In absence of

income proof, Tribunal was justified in notionally assessing the

income of the appellant at Rs.5,000/-. On disability, she

would submit to this Court that the Doctor who has assessed

the disability is not a treated Doctor. Therefore, no credence

can be attached to the ocular evidence of PW.3. On these set

of grounds, she would submit to this Court that there is no

scope for enhancement of compensation.

6. Heard learned counsel for the appellant and learned

counsel for the respondent/Insurance Company. Perused the

records.

7. On re-appreciation of the oral and documentary

evidence, I would find that PW.3 who has assessed the

disability has specifically stated in his ocular evidence that

appellant has 9% permanent disability to his right leg. The

medical evidence also indicates that appellant has suffered

two fractures to his right leg. Therefore, the disability

assessed by the Doctor who is examined as PW.3 has to be

taken into consideration and cannot be ignored. Therefore, on

this count, the finding of the Tribunal in assessing the

disability at 6.5% needs to be interfered with. Accepting the

disability assessed by PW.3, this Court would proceed to

assess the disability at 9%.

8. Though this Court cannot find fault with the finding

recorded by the Tribunal in assessing the income of the

appellant notionally for want of documentary evidence,

however, I would find that the income assessed notionally is

on the lower side. In absence of income proof, this Court

would place reliance on the chart issued by the legal services

authority and assess the income of the appellant at

Rs.8,000/-. By taking the disability at 9%, the income of the

appellant is assessed at Rs.720/- (8,000x9%) and by applying

the multiplier of 11, the compensation payable under the head

'loss of future earning' works out to Rs.95,040/- (720x11x12).

9. Having regard to the gravity of injuries sustained

by the appellant, this Court is of the view that a sum of

Rs.10,000/- awarded towards laid up period is very much on

the lower side. This Court having assessed the income of the

appellant notionally at Rs.8,000/- would proceed to award

compensation for a period of three months towards laid up

period and the same works out to Rs.24,000/-. Insofar as

compensation awarded under the other heads, the same

remains undisturbed. Hence, the total compensation re-

determined by this Court is as follows:

     Sl.                  Heads                      Amount
     No.
    1.     Pain and sufferings                    Rs.35,000/-

    2.     Medical expenses                       Rs.78,000/-

3. Loss of income during laid up period Rs.24,000/-

    4.     Loss of future earning                 Rs.95,040/-

    5.     Loss of amenities                      Rs.20,000/-

                          Total                   Rs.2,52,040/-




     10.   Accordingly, the appeal is allowed in part.            The

judgment and award of the Tribunal is modified.             The total

compensation re-determined by this Court works out to

Rs.2,52,040/- as against Rs.1,85,900/- awarded by the

Tribunal. The appellant is entitled to enhanced compensation

of Rs.66,140/- which shall carry interest at the rate of 6% per

annum. The enhanced amount shall be released in favour of

appellant/claimant.

Sd/-

JUDGE

CA