IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4503/2014 [MV] BETWEEN:
MR. AYAZ @ AYAZ PASHA S/O MOHAMMED ISMAIL AGED ABOUT 40 YEARS R/AT NO. 1297, AVALAHALLI ANJINAPURA, BANGALORE-560062.
(BY SRI. GOPALA KRISHNA N, ADV.) AND:
1. SYED SALEEM PASHA S/O S.A. AHMED MAJOR IN AGE R/AT NO. 30/31 "G" CROSS, BISMILLA NAGAR BANGALORE-560029.
2. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., REGIONAL OFFICE GROUND FLOOR NO. 31, TBR TOWER 1ST CROSS, NEW MISSION ROAD ADJACENT TO JAIN COLLEGE ... APPELLANT BANGALORE STOCK EXCHANGE BANGALORE-560027.
... RESPONDENTS (BY SRI.H S LINGARAJ, ADV. FOR R2 R1 – NOTICE D/W V/O DT:25/10/2016) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 07.02.2014 PASSED IN MVC NO.5499/2012 ON THE FILE OF THE VIII ADDITIONAL SCJ & XXXIII ACMM, MEMBER- MACT, (SCCH-5), BENGALURU, 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 in this appeal, not being satisfied with the quantum of compensation awarded under the judgment and award dated 07.02.2014 in MVC No.5499/2012 on the file of the VIII Additional Small Causes Judge and MACT, Bengaluru (hereinafter referred to as 'the Tribunal' for short).
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in a road traffic accident occurred on 19.07.2012. On 19.12.2012, it is stated that the claimant was traveling in an auto rickshaw bearing registration No.KA-05/AA-3739. As the driver of the auto rickshaw drove the vehicle in a rash and negligent manner, he lost control over the vehicle and dashed against the motor cycle bearing registration No.KA-42/H-9469, due to which, the claimant suffered injuries. Immediately after the accident, he was shifted to Victoria Hospital for treatment wherein he took treatment as inpatient for 14 days. It is stated that the claimant suffered fracture of both bones of his left leg and undergone surgery i.e., closed reduction with internal fixation. He states that he was earning a sum of Rs.20,000/- p.m., as painting contractor.
3. Respondents No.2 and 4/insurance companies appeared before the Tribunal and filed their objections. The second respondent submitted that they would be liable to pay the compensation subject to terms and conditions of the policy. The fourth respondent/Insurance Company also filed objections denying the claim petition averments.
4. The claimant got himself examined as P.W.1 and also examined P.W.2/doctor, apart from marking the documents as Ex.P1 to Ex.P16. The respondents have not lead any evidence nor marked any documents.
5. The Tribunal, on consideration of the material on record awarded total compensation of Rs.79,000/- with interest at the rate of 8% p.a. The claimant not being satisfied with the compensation awarded by the Tribunal is before this Court in this appeal, seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and Sri.H.S.Lingaraju, learned counsel for the second respondent/Insurance Company. Perused the entire records.
7. Learned counsel for the appellant would submit that the claimant has suffered fracture of both bones of left leg and the doctor has opined that the claimant has suffered 11% whole body disability. But the Tribunal has not considered the same and has not awarded any compensation under the head loss of future income, without there being any reasons. Further he submits that the claimant is a painting contractor and the disability suffered by him would come in the way of his work as painter. He refers to the evidence of P.W.2/doctor to say that the claimant walks with limb and he would not be in a position to squat and climb stairs. Further, he submits that the compensation awarded under the head loss of amenities, pain and suffering are on the lower side. Further, the Tribunal has not awarded any compensation under the head future medical expenses. Thus, he prays for the enhancement of compensation.
8. Per contra, learned counsel for the respondent/Insurance Company would submit that the Tribunal has rightly awarded compensation which is just and appropriate. He submits that the doctor/P.W.2 in his evidence has stated that he would not be in a position to say as to what is the percentage of disability suffered by the claimant. When such being the case, it is not open for the claimant to say that he would not be in a position to carry out the work of painting.
9. The accident which occurred on 19.07.2012 involving vehicles bearing registration No.KA-05/AA- 3739 and KA-42/H-9469 and accidental injuries suffered by the claimant is not in dispute in this appeal. The main contention of the learned counsel for the claimant is that even though the doctor has opined that the claimant has suffered 11% whole body disability, the Tribunal has not awarded any compensation under the head loss of future income. Looking into the evidence of P.W.2 and the medical records, I am of the view that the Tribunal has rightly not awarded any compensation under the head future loss of income, as the injury caused would not come in the way of carrying on the work of painting contract by the claimant.
10. P.W.2/doctor in his examination-in-chief states that the claimant has suffered 11% whole body disability. But in the cross-examination, he has stated as follows:
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When the doctor says that he cannot say what is the percentage of disability suffered by the claimant, it would mean that the claimant has not suffered any whole body disability and he can carry on work of painting contract. Further, the Tribunal has observed that the claimant also possesses the driving licence to drive the auto rickshaw. It is on record that the claimant would drive the auto rickshaw when there is no painting contract. Doctor/P.W.2 in his cross- examination has clearly deposed that on recent examination of the claimant, he found that the fracture has been reunited. Thus, the finding of the Tribunal that the claimant would not be entitled for compensation under the head loss of future income needs no interference.
11. Admittedly, the claimant has suffered fracture of both bones of left leg. He was inpatient for a period of 14 days in Victoria Hospital at Bengaluru and has also undergone surgery. Looking to the injuries suffered and the treatment he has taken as inpatient for 14 days, I am of the view that the compensation awarded under the head pain and suffering, loss of amenities are on the lower side. The appellant/claimant would be entitled for future medical expenses also. The Tribunal has awarded compensation for loss of income during the laid up period for only one month. Taking into consideration the fracture suffered by the claimant, he would be probably out of employment for minimum of three months. Hence, he would be entitled for compensation under the head loss of income during the laid up period for three months. Thus, the claimant would be entitled for the following modified enhanced
4. Loss of income during the laid up period :: Rs. 27,000 Total :: Rs.1,22,000 Thus, the claimant would be entitled to total compensation of Rs.1,22,000/- as against Rs.79,000/- with interest as awarded by the Tribunal.
12. Accordingly, the appeal is partly allowed. The judgment and award dated.07.02.2014 is modified. The claimant is entitled to modified compensation of Rs.1,22,000/- as against Rs.79,000/- with interest as awarded by the Tribunal.
Sd/- JUDGE mpk/-* CT:bms