IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT BETWEEN:
MR. ABDUL AZIZ S/O B.M. ISMAIL M.F.A.No.5212/2015 [MV] AGED ABOUT 50 YEARS R/AT 15-3-120/13 BEHIND VOILET COMPLEX UPPER BENDOOR, BENDOOR MANGALORE TALUK D.K. DISTRICT, PIN-575008.
(BY SRI.G. RAVISHANKAR SHASTRY, ADV. ) AND:
...APPELLANT 1. MR. RAGHUPATHI T K S/O LATE KESHAVA BHAT AGED ABOUT 61 YEARS RA./T 3-23/2, OPP: KPT HOSTEL, UDAYA ANGARA, 1STCROSS, KADRI HILLS, MANGALORE D.K. DISTRICT-575003 2 . NATIONAL INSURANCE CO. LTD.
II FLOOR, “INLAND ORNATE”, OPP: HOTEL OCEAN PEARL, KODIALBAIL,MANGALORE TALUK D.K. DISTRICT REP BY ITS BRANCH MANAGER-575003 …RESPONDENTS.
(BY SRI. K DHIRAJ KUMAR FOR R2 R-1 – NOTICE D/W V/O DATED 15.07.2016) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.02.2015 PASSED IN MVC No.1524/2013 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND MACT.VI, MANGALURU, D.K. PARTLY ALLOWING THE CLAIMPETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 26.02.2015 passed in MVC No.1524/2013 on the file of MACT & I Addl. Senior Civil Judge, Mangaluru.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 17.10.2013 when the claimant was walking on the extreme left side of the road on light house hill road, a Car bearing Reg.No.KA- 19/MA-7743 came in a rash, negligent manner and dashed to the claimant due to which the claimant sustained grievous injuries and immediately he was shifted to Highland Hospital Kankanady, Mangaluru, where he was inpatient from 17.10.2013 to 22.10.2013. It is stated that that the claimant was aged 48 years as on the date of accident and was working as Lift Operator, earning a sum of Rs.6,000/- per month.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments. Further the insurer contended that the driver of the Car had no valid and effective driving license as on the date of accident and as such there is violation of policy condition. It is also further stated that the accident occurred due to the negligence of the claimant himself. The claimant examined himself as PW.1 and also examined the Doctor as PW.2, apart from marking the documents as Exs.P1 to P16. Respondent marked Exs.R1 and R2. The Tribunal on assessing the material on record awarded total compensation of Rs.86,124/- with interest at 6% p.a. from the date of petition till the
Total Rs.86,124/-
Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent - Insurer. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side. He submits that the claimant was working as lift operator and earning Rs.6,000/- per month, but the Tribunal has failed to assess the income of the claimant for awarding compensation. Further it is his submission that the Tribunal also failed to assess the whole body disability even though the Doctor has stated that the claimant suffers from 20% disability to particular limb i.e., left ankle. It is his further submission that the claimant was working as lift operator and suffered fracture of left ankle and functional disability, which would come in the way of his avocation. The Tribunal ought to have appreciated the evidence of the Doctor – PW.2 and the disability certificate at Ex.P.12, but the Tribunal failed to assess the whole body disability. Learned counsel also contended that the compensation awarded on the head of loss of income during laid up period and loss of amenities is on the lower side, when compared to the injuries suffered by the claimant.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal awarded just compensation which requires no interference. It is his further submission that the Tribunal has rightly not assessed the whole body disability, since the claimant has not suffered any functional disability. It is the case of the insurer that the claimant was working as lift operator and the injuries suffered by the claimant would not come in the way of his avocation as lift operator. Therefore, prays for dismissal of the appeal.
7. On hearing the learned counsels for the parties and on perusal of the material on record, the following points arise for consideration:-
“a. Whether the Tribunal committed an error in not assessing the income of the claimant for awarding compensation ?
b. Whether the Tribunal is justified in not assessing the whole body disability of the claimant ?
c. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
8. The above points (a and c) are answered in the affirmative and (b) in the negative for the following reasons :
The occurrence of the accident on 17.10.2013 involving Car bearing Reg.No.KA-19/MA-7743 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that he was working as lift operator at Medicity Complex at Mangaluru and was earning Rs.6,000/- per month. The Tribunal committed an error in not assessing the income of the claimant for the purpose of awarding of compensation. The accident is of the year 2013. This Court and Lok Adalath while settling the accident claims of the year 2013 would normally take notional income of Rs.8,000/- per month. In the instant case, the claimant himself has stated that he was earning Rs.6,000/- per month, as such it would be appropriate to take the monthly income of the claimant at Rs.6,000/- for determining the compensation on the head ‘Loss of future income’. The claimant has placed on record Ex.P.3 – the wound certificate, Ex.P.9 – Discharge Summary, Ex.P.12 – Disability Certificate to establish the injuries suffered, treatment taken and the disability suffered by the claimant. The claimant has suffered injuries such as swelling and tenderness of left ankle and x ray of left ankle with foot shows displaced medial malleolus fracture of left ankle. PW.2 – the Doctor states that for the fracture suffered, screw fixation was done on 18.10.2013. Further in his evidence, he states that left ankle shows mal united fracture medialmalleolus with implant intact movements of left ankle joint painful and limited flexion and extension 10 degree to 15 degree. Swelling left ankle joint with wasting of left calf muscle with muscle power to grade III. Climbing staircase and squatting is painful and limited. Based on the clinical and radiological examination, he further states that the claimant suffered disability of 20% to left ankle joint. Admittedly the claimant was working as lift operator. The lift operator normally would be required to stand while he is on duty. The fracture of ankle joint would definitely come in the way of his avocation. Thus the Tribunal was expected to consider the functional disability suffered by the claimant due to the injuries. When the Doctor states the claimant was suffering from 20% disability to a particular limb, it would be taken at 1/3rd to assess the whole body disability. Thus I am of the view, that the whole body disability could be assessed at 7% which also would be functional disability. The claimant was inpatient for six days, looking to the injuries suffered, definitely he would have been out of employment for minimum of three months, thus he would be entitled for Rs. 18,000/- towards the head loss of income during laid up period. The claimant has suffered fracture of left ankle and the compensation awarded for loss of amenities at Rs.15,000/- is on the lower side, the claimant would be entitled for another sum of Rs.10,000/- on the said head. Thus the
9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent and the claimant is entitled to enhanced compensation in a sum of Rs.1,71,644/- as against Rs.86,124/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms