IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.10517/2013 [MV] BETWEEN :
APSAR PASHA S/O ABDUL SATHAR AGED ABOUT 41 YEARS RAGHAVENDRA NAGAR 2ND CROSS, TANNIRUHALLA, HASSAN ...APPELLANT (BY SRI G.S.BYRA REDDY, ADV.) AND :
1. HANUMEGOWDA N.R., S/O RAMEGOWDA SINCE DECEASED HIS LRs.
1(a) ROOPA W/O LATE HANUMEGOWDA N.R., MAJOR, AGED ABOUT 38 YEARS.
(b) HITHAISH S/O LATE HANUMEGOWDA N.R., MINOR, AGED ABOUT 7 YEARS.
(c) VAISHNAVI D/O LATE HANUMEGOWDA N.R., MINOR, AGED ABOUT 5 YEARS.
RESPONDENT Nos.1(b) & (c) ARE MINORS REP. BY HER MOTHER AND NATUAL GUARDIAN.
ALL ARE R/O DODDAMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT-573201 (CAUSE TITLE AMENDED VIDE COURT ORDER DATED 06.07.2018.) 2. THE MANAGER ORIENTAL INSURANCE CO.LTD., S.S. COMPLEX, SUBHASH SQUARE HASSAN (POLICY VALID FROM 28-05-2011 TO 27-05-2012) …RESPONDENTS (BY SRI H.N.SUNIL KUMAR, ADV. FOR R-1(a to c); SRI C.SHANKAR REDDY, ADV. FOR R-2.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 11.12.2012 PASSED IN MVC NO.250/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION 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 claimant is before this court not being satisfied with the quantum of compensation awarded under judgment and award dated 11.12.2012 passed in MVC No.250/2012 on the file of the Fast Track Court-II and Additional MACT, Hassan.
2. The claimant filed claim petition under Section 166 of the M.V.Act claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 2.11.2011 when the claimant was walking on the road, a bike bearing No.KA-13-V-7669 came in a rash and negligent manner and dashed against the claimant due to which he suffered grievous injuries. He took treatment at Mangala Hospital, Hassan, as an inpatient. The claimant states that he was an agriculturist and was earning Rs.15,000/- per month. He was aged about 40 years as on the date of the accident.
3. On issuance of notice, the respondent No.2- insurance company appeared before the Tribunal and denied the claim petition averments. It also denied the negligence of the rider of the bike.
4. The claimant examined himself as PW-1 and also examined the Doctor as PW-2 apart from marking exhibits P1 to P14. The respondent examined RWs 1 and 2 and marked documents Ex.R1 to R4.
5. The Tribunal on examination of the material on record awarded total compensation of Rs.1,50,000/- with interest @ 6% p.a. from the date of petition till realization on the following heads:
The claimant not being satisfied with the quantum of compensation is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-insurance company.
7. Learned counsel for the appellant would submit that the income assessed by the Tribunal is on the lower side and further he submits that the claimant has suffered fracture of tibia. Looking to the injuries suffered and treatment taken, the compensation awarded under other heads are also on lower side.
8. Per contra, learned counsel for the respondent- insurance company would submit that the compensation awarded is just compensation and needs no interference.
9. On hearing the learned counsels and on perusal of the records, the only question that requires consideration is:
Whether the claimant would be entitled to enhanced compensation under the facts and circumstances of the case?
10. The accident is of the year 2011. The accident involving vehicle bearing No.KA-13-V-7669 and accidental injuries suffered by the claimant are not in dispute in this appeal. The appeal is for enhancement of compensation. The claimant states that he was earning Rs.15,000/- per month by business and agricultural activities. But he has not produced any documents to indicate his exact income. In the absence of materials, the income has to be assessed notionally. The Tribunal assessed the notional income of the claimant at Rs.4,000/- per month which is on the lower side. This Court and Lok Adalaths while settling the accident claims of the year 2011, would normally take the notional income at Rs.5,500/- per month. In the present case, in the absence of any material to indicate the exact income, notional income is taken at Rs.5,500/- per month. The compensation awarded under the head of amenities is on the lower side. The claimant has suffered fracture of tibia. He has also examined the Doctor as PW-2. In his evidence he has assessed the physical disability at 10%. Looking to the injuries suffered and treatment taken by the claimant, he would be entitled for another Rs.14,000/- under the head amenities in addition to Rs.6,000/- awarded by the Tribunal. Thus, the claimant would be entitled to enhanced compensation as follows:
Loss of earning capacity due to disability:– Rs.5500 x 12 x 15 x 10/100 = Rs.99,000
11. Thus, the claimant would be entitled to compensation of Rs.1,95,500/- as against Rs.1,50,000/- awarded by the Tribunal with 6% interest per annum from the date of petition till realization.
The appeal is allowed in part. The judgment and award dated 11.12.2012 passed in MVC No.250/2012 on the file of the Fast Track Court-II and Additional MACT, Hassan, is modified to the above extent.
Sd/- JUDGE Dvr: