IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3855 OF 2013 (MV) BETWEEN:
THE BRANCH MANAGER UNITED INDIA INSURANCE CO LTD., BRANCH OFFICE, P.B.NO.16 1ST FLOOR, S.B.L.T BUILDING POLYTECHNIC ROAD CHINTAMANI – 563 125. ... APPELLANT (BY SRI KISHORE KUMAR REDDY, ADVOCATE) AND:
1. SRI ASHWIN SHETTY S/O RAMACHANDRA SHETTY AGED ABOUT 29 YEARS R/O. NO.349, 3RD FLOOR 33RD MAIN, 17TH CROSS J P NAGAR BANGALORE – 560 078.
PERMANENT RESIDENT AT SRI DEVI KRIPA, MARAKADA KUNJAHBAIL, MANGALORE – 575 015..
2. SRI LAKSHMINARAYANA S/O. YELLAPPA AGED ABOUT 57 YEARS PULIGALLU VILLAGE, JOLUR HOBLI BAGEPALLI TALUK B.PURA, KOLAR DISTRICT – 561 207... RESPONDENTS (SRI JEEVAN K, ADVOCATE FOR R1 R2 – APPEAL DISMISSED V/O DTD.22.07.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.12.2012 PASSED IN MVC NO.4880/2011 ON THE FILE OF THE 9TH ADDITIONAL SMALL CAUSES JUDGE, 34TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, AWARDING A COMPENSATION OF RS.4,24,000/- WITH INTEREST AT 6% P.A ON RS.4,04,000/- (EXCLUDING FUTURE MEDICAL EXPENSES OF RS.20,000/- ) FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The insurer is in appeal, aggrieved by the saddling of liability on it under the judgment and award dated 21/12/2012 in M.V.C.No.4880/2011 on the file of the IX Additional Senior Civil Judge, Small Causes Court, MACT at Bengaluru.
2. The claim petition was filed under Section 166 of MV Act, 1988 to claim compensation for the injuries sustained in a motor vehicle accident. It is stated that on 12.2.2011 when the claimant was sitting on his motorcycle bearing registration No.KA-19-W-1481 talking with his friend which was parked inside Prestige Tech Park Building, at that time driver of Tata Sumo bearing registration No.KA-02- AA-4133 drove the same in a rash and negligent manner and dashed to the motorcycle of the claimant and caused accident. Due to which, the claimant fell down along with motorcycle and suffered grievous injuries. Immediately he was taken to VIMS hospital, Bengaluru, wherein he took treatment upto 07.03.2011. It is stated that the claimant had undergone operation and he suffered physical disability.
3. On issuance of notice, respondent No.1 remained absent and was placed ex-parte. Respondent No.2 appeared before the Tribunal and filed objection by denying the claim petition averments. It is stated that the accident occurred only due to fault of the claimant himself but admitted issuance of policy in respect of offending vehicle.
4. In order to prove his case, the claimant examined himself as PW1 and also examined treated Doctor as PW2, apart from marking documents at Ex.P1 to P27. No evidence was let in on behalf of respondent No.2. The Tribunal after appreciating the material placed on record awarded total compensation of Rs.4,24,000/- with interest at 6% per annum on Rs.4,04,000/- from the date of petition till the date of realization. While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.10,000/- per month. It is the contention of the insurer that assessing income of claimant at Rs.10,000/- per month is on the higher side and prays for reduction of the same.
5. Heard the learned counsel for the appellant-insurer and learned counsel for respondent–claimant and perused the lower court records.
6. The learned counsel for the appellant–insurer submits that the Tribunal committed an error in assessing the income of the claimant at Rs.10,000/- per month. He submits that the claimant stated that he was working in HCL Company, drawing a salary of Rs.26,000/- per month for which he has placed on record Ex.P16-pay slip. But he has not proved the same in accordance with law. Employer has also not been examined to prove Ex.P16. As such, he submits that the Tribunal could not have assessed the income of the claimant at Rs.10,000/- per month. Thus, he prays for reduction of the monthly income assessed by the Tribunal.
7. Per contra, the learned counsel for the respondent- claimant would submit that quantum of compensation awarded by the Tribunal is just compensation and needs no interference. He further submits that the claimant was working as Engineer at HCL Company, drawing salary of Rs.26,000/- per month for which he has placed on record Ex.P16 - pay slips, which would establish the salary drawn by the claimant. Thus, he prays for dismissal of the appeal.
8. Having heard the learned counsel for the parties and on perusal of material placed on record, the only point for consideration is as to whether the income of the claimant assessed by the Tribunal at Rs.10,000/- per month is proper?
9. The answer to the above point is in the Negative for the following reasons:
10. The accident that occurred on 12.02.2011 involving motorcycle bearing No.KA-19-W1481 and TATA sumo bearing registration No.KA-02-AA-4133 is not in dispute in this appeal. The insurer in appeal aggrieved by the assessment of the income at Rs.10,000/- per month of the claimant praying for reduction of the same. The only contention urged by the appellant-insurer is that the Tribunal committed an error in assessing the income of the claimant at Rs.10,000/- per month. In order to prove the same, the claimant has produced pay slips at Ex.P16 but no other document is produced by the claimant to establish that he was working at HCL Company nor he has examined any person from his employer company in support of Ex.P16. In the absence of proving Ex.P16 in a manner known to law, the same cannot be accepted. But the Tribunal committed an error in assessing the notional income of the claimant at Rs.10,000/- per month. In the absence of acceptable material to establish income, this Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally assess the notional income for the accidents of the year 2011 at Rs.6,500/- per month. Hence, in the instant case also in the absence of any acceptable material to establish the income of the claimant, it would be appropriate to assess income of the claimant at Rs.6,500/- per month, as against the income assessed by the Tribunal at Rs.10,000/- per month. The claimant would be entitled for modified reduced compensation as follows:
Loss of future income due to disability 6,500x12x17x10/100=Rs.1,32,600/- as against Rs.2,04,000/- awarded by the Tribunal.
11. Thus, the compensation under the head ‘Loss of future income due to disability‘ is reduced by Rs.71,400/- (Rs.2,04,000-1,32,600/-) and the compensation awarded by the Tribunal under all other heads are intact.
12. The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, insurer’s appeal is allowed in part.
Sd/- JUDGE nms