IN THE HIGH COURT OF KRNATAIKA. CIRCUIT BENCH AT DRARWAD DATED THIS THE 21 DAY OF JULY, 2011 BEFORE THE HON BLE MR. JUSTICE B.SREENIVASE GOWDA MFA NO. 41 20Q6 MV BETWEEN: M/S UNITED INDIA INSURANCE COMPANY LTD.. HUBLI. DIVISIONAL OFFICE. ENKAY COMPLEX. KESHAVAPUR. HUBLI. NOW REPTD. BY REGIONAL OFFICE. p25, SHANIKARANARAYANA BUILDING, M.G.ROAD, BANGALORE-i, REPTD., BY ITS REGIONAL MANAGER. if APPELLANT (BY Sri. NAGARAJA C.KOLLORI FOR SRI A. M. VENKATE SH, ADVOCATE.) AND I. VENKATESH S/O VASANTHA SUTHARA 30 YEARS, 0CC: WORKSHOP MANAGER, R/O BANDAGADAKARA CHALA KRISHNAPURA, 21) CROSS, OLD HUBLI, HUBLI. 2. MANAGING DIRECTOR, VIJAYANANDA ROAD LINES LTD.. GIRIRAJA ANNEXI, I.B.ROAD. HUBL1. 3. SRI VENkATESH V BEVINAIKATTI. MAJOR. 0CC: BUSINESS. R/O SIDDESHWARA NAGAR. GOKULA ROAD. HUBLI, SINCE DECEASED BY L.R. 3(a) SRI KRISHNAPPA RAJAPPA BEVINAIKATTI, MAJOR. 0CC: BUSINESS, R/O GOPANAKOPPA. HUBLI. RESPONDENTS. (By Sri. D.V.PATTAR FOR SRI VIGHNESH WAR S. SHASTRI, ADV. FOR C/RI.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.01,2006 PASSED IN MVC NO.284/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN.) & ADDL. MACT, HUBLI, AWARDING COMPENSATICN OF 5,61,176/- WITH INTEREST ( 6% PA. FROM THE DATE OF PETITION TILL DEPOSIT. THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT This appeal is by the insurer of offending vehicle challenging the award passed by the Tribunal on the ground of quantum as excessive. 1 2. Heard. The appeal is admitted and with the consent of learned Counsel appearing for the parties. it is taken up for final disposal. 3. For the sake of convenience, parties are referred to as they are referred to in the claim petition before the Tribunal. 4. As there is no dispute regarding bodily injuries sustained 1w the claimant in a road traffic accident occurred on 6-3-2001 due to rash and negligent driving of offending vehicle while he was travelling in an autorickshaw bearing No.KA.25.A.430 I and liability of the insurer of the offending vehicle, the only point that remains for my consideration in the appeal is: Whether the quantum of compensation awarded by the Tribunal is just and proper or does it call for reduction? 5. After hearing the learned Counsel for the parties and perusing the award of the Tribunal, I am of a- 4 the view that the compensation awarded by the Tribunal is not just and proper, it is on the higher side and therefore, it is deserved to be reduced. 6. The claimant has sustained the following injuries: Comminuted fracture of tibia and fibula of left leg middle 1 /31, segmental fracture of mandible, fracture of left maxilla. G.K.interlocking nail for tibial fracture with fixation of mandible was done with plate and screws and he was discharged on 30-3-2001. 7. On his examination by the doctor on 30- 12-02 he found terminal restrictions of movements of left ankle with shortening of left leg by 1.5 cms, difficulty in T.M. joint and restricted mouth opening, right eye vision problem and doctor has opined claimant has suffered 25% disability. 8. Injuries sustained and treatment taken by him are evident from wound certificate - Ex.P.5, follow Wr 5 up card issued by Vivekananda Hospital - Ex.P.6, certificate issued by Kshema Orthopaedic Hospital - Ex.P.7, medical bills - Ex.P.8 to 80 and 84, photos - Ex.P.85 and supported by oral evidence of the claimant and three doctors examined as P.Ws. I and 4 to 6 respectively. 9. P.W.4 is an Orthopaedic Surgeon who after examining the claimant has given disability certificate stating claimant has suffered disability of 25% on account of fractures sustained by him. P.W.5 is the Dentist, on examination of the claimant on 3-11-04 has stated, claimant has suffered traumatic bite, mandible deviates to right side, right third tooth missing, cliking sound and dental disability is 25% permanent in nature in respect of chewing food. P.W.6 is an Opthalamologist. On examining the claimant, he has stated claimant has suffered loss of vision and suffered disability of 25%. 10. Considering nature of injuries, Rs.25,000/- awarded by the Tribunal towards pain and suffering is Sr 6 on the lower side and it is deserved to be enhanced by another 5OOOO/ and I award 75,QOO/ under this head, 11. As Rs.52.176/ awarded b the Tribunal towards medical expenses is as per medical bills produced by the claimant, the same is just and proper and therefore, it does not call for enhancement, however it is rounded of to Rs.53,OOO/. 12. Claimant xas treated as inpatient for a period of 45 days in different hospitals on different occasions. Considering the same. Rs,15,OOO/ awarded by the Tribunal towards incidental expenses such as conve, ance. nourishment and attendant charges is on the lover side and the same is deserved to be enhanced by another 5.OOO/ and I award .2O.OOO/ under this head. 13. Claimant was working as a Manager in a private workshop and earning Rs.6,OOO/ per month. But the same is not supported b. any documentary 7 evidence. Considering his age as 25 years and year of accident as 2001. his income is asscsst’d at Rs.4.000/ per month. Nature of injuries suggest. he must have been under rest and treatment for a period of six months. Therefore. a sum of Rs.24.000/ is awarded towards loss of income during laid up period and the same has been rightly awarded by the Tribunal. 14. P.W.6 an Opthalomologist has stated in his evidence that claimant has suffered loss of vision of 250 o. Rs.30,000/- awarded by the Tribunal towards loss of vision is on the low er side and therefore, it is deserved to be enhanced by Rs.20.000/- and I award Rs.50,000/- towards loss of amenities. 15. Claimant on account of fracture to mandible and loss of teeth has suffered disfigurement of face and the Tribunal has awarded Rs.75,000/- under the said head and the same is on the higher side. Therefore, it is deserved to be reduced by Rs.25,000/- and I award Rs.50.000/- under this head. x 16. Learned Counsel for the appellant submits. the claimant after sustaining injuries in the accident has continued his service and Tribunai has committed an error in awarding compensation towards loss of future income. Whereas, learned Counsel appearing for the claimant submits, claimant after sustaining injuries in the accident could not continue his employment and now he is without employment. The insurer who has cross examined the employer of the claimant has not elicited with regard to his discontinuation of service after sustaining injuries. The employer of the claimant has stated in his evidence that his total turnover is 25.OOO/- to 3O.OOO/- per month and after deducting expenses, he got profit of 15,OOO/- per month. If that could be the case, it cannot be believed that he was paying lO,OOO/ to the claimant. It is not the case of the claimant that he has done ITI or any other technical course. He must have been working as an ordinary worker in a garage and he must have been earning 4,OOO/ per month and his income is assessed at 9 ?4,000/- per month as against ?6,000/- assessed by the Tribunal. Multiplier applicable to his age group is 18’. Disability is assessed at 25%. So loss of future income works out to Rs.4,000/- x 12 x 25/100 x 18 = Rs.2,16,000/- as against 3,06,000/- awarded by the Tribunal. Rs.25,000/- is awarded towards loss of marriage prospects and considering he lost some teeth and is required to spend some amount towards fixation of artificial teeth I award Rs.20,000. 17. Thus the claimant is entitled for the following compensation: 1. Pain and suffering Rs.75,000/- 2. Medical expenses Rs.53,000/- 3. Incidental expenses Rs.20000/- 4. Loss of income during laid up period Rs.24,000/- 5. Loss of amenities Rs.50,000/- 6. Disfigurement of face Rs.50,000/- 7. Loss of future income• Rs.2, 16,000/- a- () 8. Loss of marriage prospects Rs.25,000/ 9. Fixation of artificial teeth Rs.2O.OOO/- Total Rs.5.33,000/- 18. Accordingly, the appeal is allowed in part and the judgment and a\varcl of the Tribunal is modified to the extent stated herein above. The claimant is entitled R,5 3OOOf- for a total compensation of ,O8,QQD a against \///O o.tJ ‘13)’2 Rs.5,61,176/ awarded by the Tribunal and compensation awarded by the Tribunal is reduced by Rs.28.176/-. The Insurance Co. is directed to deposit the balance compensation after deducting amount if any already deposited together with interest at 6° p.a. from the date of claim petition till the date of realisation. Entire amount in deposit is ordered to be transferred to the Tribunal and the same shall be disbursed in terms of the award of the Tribunal. 11 No order as to costs. sal Mgn/