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Judgment
Ram Mohan Reddy, J.—MFA No. 40/2012 filed by the Insurer of the offending vehicle and MFA No. 3885/2012 filed by the claimant injured in MVC No. 1213/2009 the challenge is to the quantum of compensation determined by the common judgment and award dated 09.09.2011 of the I Addl. SCJ & MACT, Bengaluru, SCCH-11 (for short ''MACT'') insofar as it relates to MVC No. 1213/2009, while the insurer claims that compensation is on the higher side, the claimant asserts to the contrary. The appeals though listed for admission, with the consent of the learned counsel for the parties, are clubbed together, finally heard and disposed of by this order.
The finding in the affirmative over Issue No. 1 attributing actionable negligence against the offending vehicle owned by S. Mahesha and insured by the appellant in MFA No. 40/2012 is not in dispute.
Sri P.B. Raju, learned counsel for insurer appellant submits that the claimant aged 51 as on 06.12.2008, the date of accident and injury having placed no material whatsoever relating to the claim of Rs. 20,000/- as monthly income, MACT is not justified in reckoning Rs. 4,000/- as monthly income; that award of compensation of Rs. 60,000/- towards loss of income during the period of treatment of 15 months; Rs. 6,000/- per month for 5 months towards incidental charges, conveyance, nourishment and attendant charges is on the higher side while, loss of future income reckoning 20% as total disability although the Doctor P.W.4 opined whole body disability of 15% and Rs. 50,000/- towards loss of happiness and future amenities are without justification.
Per contra, learned counsel for the claimant/injured/appellant in MFA No. 3885/2012 submits that the MACT was not justified in declining to accept the income of the injured as Rs. 20,000/- per month, although appellant an engineer by profession was appointed in Dhanalakshmi Engineering Works of which the Proprietor was none other than the claimant in MVC No. 1214/2009 who also suffered injuries in the very same accident and placed on record the acknowledgement/Ex.P.32 for having filed income tax return for the assessment year 2007-08, i.e., for the financial year 2006-07 and the Value Added Tax registration certificate issued for the year 2006. Hence it is submitted, the award of compensation under various heads of account are on the lower side.
The injured, aged 51, as on 06.12.2008, the date of accident and injury, though claimed to be paid salary of Rs. 20,000/- per month under certificate/Ex.P. 13, employed as service engineer in Dhalakshmi Engineering Works, of which Proprietor was one Suresh K, the claimant in MVC No. 1214/2009 arising out of the very same accident and clubbed with MVC No. 1213/2009, there is no material forthcoming in the form of attendance register, much less, accounts maintained by Dhanalakshmi Engineering Works, a Proprietary firm, relating to payment of wages of Rs. 20,000/- per month to the claimant. In fact, Ex.P.32 acknowledgment for having filed Income Tax Return for the assessment year 2007-08 by the claimant/Proprietor in MVC No. 1214/2009 records a total turn over of Rs. 1,95,000/- and if that is so, then it can hardly be said that its alleged employee, the injured claimant in MVC No. 1213/2009 was paid Rs. 2,40,000/- as wages in that year. Even otherwise, there is no material to substantiate the said fact and therefore, MACT was justified in not accepting the claim that the injured was paid salary of Rs. 20,000/- per month.
In the year 2008, it is needless to state that even a coolie would earn in the least Rs. 5,000/- per month and if that is so, then, regard being had to the fact that the claimant injured was in and out of hospital in three spells, from 06.12.2008 to 13.12.2008; 15.04.2009 to 21.04.2009; and from 27.01.2010 to 01.02.2010, coupled with the nature of injuries suffered and the treatment extended, as disclosed in the medical records, leading to shortening, by one inch, of the right thigh due to the fractures of the bones of the right leg, as well as, fracture of right upper limb, the opinion of the doctor/PW-4 that the claimant had sustained 15% disability to the whole body i.e., 20% to the upper limb equivalent to 5% to the whole body and 30% to the lower limb equivalent to 10% to whole body totaling to 15% deserves acceptance. The presumption of the MACT that the claimant sustained 20% whole body disability is incorrect. So also, there is justification for the MACT to record a finding that in the facts and circumstances, the claimant was away from duties for a period of 15 months while undergoing medical treatment although, there is no justification to have reckoned Rs. 4,000/- as monthly income of the claimant.
Reckoning Rs. 5,000/- as monthly income of the injured, 15% is Rs. 750/- being the monthly loss of future income while the annual loss is Rs. 9,000/- and applying multiplier 11, the total loss of future income is Rs. 99,000/- as against Rs. 1,05,600/- awarded by the MACT. Loss of income during laid up period, if reckoned at Rs. 5,000/- per month, for 15 months is Rs. 75,000/- as against Rs. 60,000/- awarded by the MACT. Deducting Rs. 6600/- from Rs. 1,05,600/- and adding Rs. 15,000/- to Rs. 60,000/- against loss of income during laid up period, appellant would be entitled to Rs. 8,400/- in addition.
Shortening of leg by one inch is the evidence of the doctor P.W.4 and medical records and if that is so, appellant is entitled to be compensated for such a disability. Award of Rs. 50,000/- towards loss of happiness and future amenities deserves to be enhanced to Rs. 1,00,000/-. Therefore, appellant is entitled to additional Rs. 50,000/- as against Rs. 50,000/- awarded by the MACT.
In the result, the appeals of both the insurer and the claimant are allowed in part in the light of what is stated supra. The judgment and award impugned is modified entitling the claimant/appellant in MFA No. 3885/2012 to Rs. 58,400/- with interest at 6% per annum in addition to what is awarded by the MACT and in all other respects, remains unaltered.