Karnataka High Court
S. Neelakantaiah vs Gangeshwara on 3 January, 2023
Bench: M.I.Arun
-1-
MFA No. 5576 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
MISCELLANEOUS FIRST APPEAL NO.5576 OF 2019 (MV-I)
BETWEEN:
S. NEELAKANTAIAH
S/O SANNANANJAPPA
AGED ABOUT 52 YEARS,
R/O MUDDUPURA VILLAGE,
NITTUR HOBLI,
GUBBI TALUK,
Digitally signed
TUMKUR DISTRICT - 572 216.
by V
MANJUSHA BAI
...APPELLANT
Location: High (BY SRI. SATHISH T., ADVOCATE (NOC))
Court of
Karnataka
AND:
1. GANGESHWARA
S/O NAGARAJU,
AGED ABOUT 40 YEARS,
R/O NITTUR VILLAGE,
NITTUR HOBLI,
GUBBI TALUK,
TUMKUR DISTRICT - 572 216.
(RC OWNER OF THE VEHICLE
AUTO RICKSHAW BEARING
REG. NO. KA/06/D/7019)
2. THE MANAGER
BHARTI AXA GENERAL INSURANCE CO. LTD.,
1ST FLOOR, ANNAPOORNA ARCADE,
ABOVE RAGHU SCANNING
OPP. NEPS POLICE STATION
B.H.ROAD,
TUMKUR CITY - 572 140
-2-
MFA No. 5576 of 2019
(POLICY NO. FCV/S4662158/EC/05/002545
VALID FROM 02/05/2016 TO 01/05/2017)
...RESPONDENTS
(BY SRI. ASHOK N.PATIL, ADVOCATE FOR R-2 (VK FILED);
VIDE ORDER DATED 30.11.2022, NOTICE
TO R1 DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.09.2018 PASSED IN MVC
NO.132/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, ADDITIONAL MACT, GUBBI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Aggrieved by the order dated 24.09.2018 in
M.V.C.No.132/2017 passed by Addl. Senior Civil Judge &
Addl. MACT, Gubbi, claimant therein has preferred the
present appeal.
2. For the sake of convenience, the parties are referred to
as per their status before the Tribunal.
3. On 20.10.2016 at about 5.30 p.m. claimant met with
an accident while traveling in an auto rickshaw bearing
registration No.KA-06-D-7019. The said auto rickshaw was
MFA No. 5576 of 2019
duly insured by respondent No.2-insurance company. As a
result of the accident, petitioner suffered 45% permanent
disability to his right lower limb amounting to 15%
permanent disability to the whole body. He suffered open
fracture of right patella and right distal femur and he had to
undergo surgery. Liability of the insurance company is not
disputed. Tribunal has awarded a total compensation of
Rs.3,17,200/- with 9% interest. The heads of compensation
are as follows:
Sl.No. Heads Compensation
1. Medical expenses Rs.97,400/-
2. Pain and sufferings Rs.30,000/-
3. Nourishment and diet food Rs.20,000/-
4. Loss of amenities Rs.20,000/-
5. Loss of future earnings Rs.1,24,800/-
6. Future medical expenses Rs.25,000/-
Total Rs.3,17,200/-
Not satisfied by the same, the petitioner therein has
preferred this appeal.
MFA No. 5576 of 2019
4. Accident happened in the year 2016. Petitioner was
aged 50 years at the time of accident. He is said to be an
agriculturist and his income has not been proved. Further,
he suffered 45% permanent disability to his right lower limb
which amounts to 15% permanent total body disability.
Thus, as per the chart accepted by Lok Adalat, a sum of
Rs.9,500/- is taken as the notional income of the petitioner
and multiplier of 13 is adopted as per Sarla Verma (Smt)
and Others Vs. Delhi Transport Corporation and Another
reported in (2009) 6 SCC 121. Further, the petitioner has
suffered 45% permanent disability to his right lower limb and
permanent total body disability of 15%. Tribunal on the
ground that all permanent disabilities arising out of injuries
do not result in loss of earning capacity has considered his
total body disability at 10%. The petitioner is admittedly a
farmer and disability to his right lower limb affects him from
carrying out his work effectively and the Tribunal erred in not
considering the permanent total body disability at 15% and
MFA No. 5576 of 2019
hence I am of the opinion to assess loss of earning capacity,
the total body disability has to be taken at 15% itself.
5. Thus, the petitioner shall be entitled to a compensation
of Rs.2,22,300/- (Rs.9,500/- X 12 X 13 X 15%) towards loss
of future earnings as against Rs.1,24,800/- granted by the
Tribunal. Towards medical expenses based on the bills
submitted, Tribunal has awarded Rs.97,400/- which in my
opinion is correct. Towards pain and sufferings, a sum of
Rs.30,000/- is awarded. Taking into consideration that there
were two fractures and which required surgery, it would be
appropriate to enhance the same to Rs.50,000/-. Towards
nourishment and diet food, a sum of Rs.20,000/- is awarded
which in my opinion is correct. Towards loss of amenities, a
sum of Rs.20,000/- is awarded and taking into consideration
the nature of injuries, I would deem it appropriate to
enhance it to Rs.30,000/-. Towards future medical expenses,
a sum of Rs.25,000/- is awarded which in my opinion is
correct. Towards loss of earnings during laid up period no
amount is awarded. Given the nature of injuries we can
MFA No. 5576 of 2019
presume that the petitioner could not have earned for a
period of three months and accordingly a sum of Rs.28,500/-
is awarded towards the same. Thus, petitioner shall be
entitled to compensation under the following heads:
Sl. Compensation Total Enhanced
Heads
No. of Tribunal Compensation
1. Medical expenses Rs.97,400/- Rs.97,400/-
2. Pain and sufferings Rs.30,000/- Rs.50,000/-
Nourishment and
3. Rs.20,000/- Rs.20,000/-
diet food
4. Loss of amenities Rs.20,000/- Rs.30,000/-
Loss of future
5. Rs.1,24,800/- Rs.2,22,300/-
earnings
Future medical
6. Rs.25,000/- Rs.25,000/-
expenses
Loss of earnings
7.
during laid up period - Rs.28,500/-
Total Rs.3,17,200/- Rs.4,73,200/-
Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the
Tribunal is modified and the petitioner is
entitled to enhanced compensation of
Rs.1,56,000/- over and above what has
been already awarded by the Tribunal along
MFA No. 5576 of 2019
with interest at the rate of 6% per annum
from the date of filing of the petition before
the Tribunal till the date of realization;
iii) Respondent No.2-insurance company shall
be liable to pay the compensation amount
along with interest at the rate of 6% per
annum from the date of filing of the petition
before the Tribunal till the date of realization
within a period of six weeks from the date of
receipt of certified copy of this order;
iv) Compensation to be paid by the insurance
company shall be after deducting the
amount already paid to the petitioner.
v) Further, the petitioner shall not be entitled
to interest on the enhanced compensation
for the delayed period of 142 days in filing
the appeal;
vi) Draw modified award accordingly;
vii) Registry to return the records to the
jurisdictional Tribunal forthwith.
SD/-
JUDGE
PGG
