IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO.9125 OF 2012 (MV) BETWEEN:
CHIKKATHIMMEGOWDA @ CHIKKATHIMMA S/O RAMEGOWDA AGED ABOUT 41 YEARS R/O NO.21, A/A, VASU LAYOUT RAMAKRISHNANAGAR, K.BLOCK, MYSORE – 570 020 ... APPELLANT (BY SRI.K A CHANDRASHEKARA, ADV.) AND:
1. S M SURESH S/O MAHADEVAPPA AGED ABOUT 31 YEARS R/O BOODIVAL STREET SHAGYA VILLAGE, KOLLEGAL (TQ) CHAMARAJANAGARA DISTRICT – 571 440 2. BASAVARAJU S/O LATE PUTTAMADAPPA AGED ABOUT 49 YEARS R/O CHINCHALLI, MANGAGALLI (PO), KOLLEGAL TALUK CHAMARAJANAGARA DISTRICT – 571 440 3. UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE 305 ATCHAMS MANSION, SOUTHERN EXTENSION, KOLLEGAL, CHAMARAJANAGARA DISTRICT-571 440 BY ITS BRANCH MANAGER ... RESPONDENTS (BY SRI.RAVISH BENNI, ADV. FOR R3; SRI.K.V.THIMMAIAH, ADV. FOR R2; R1 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.06.2012 PASSED IN MVC NO.731/2011 ON THE FILE OF THE PRESIDING OFFICER, C/C FAST TRACK COURT-V, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant filed this appeal challenging the judgment and award dated 20.6.2012 passed by the Fast Track Court –V and Addl. Motor Accident Claims Tribunal at Mysore in MVC No.731/2011, whereby the Tribunal has granted compensation of Rs.94,000/- with interest at 6% p.a. from the date of petition till the date of realisation.
2. Brief facts of the case are that On 31.01.2011 at about 7.15 am the appellant was proceeding as a pillion rider in a motor cycle bearing Regn.No.KA-03/3803 towards Thomiyapalya from MT Doddi Village and it was ridden by one Narasimha. When they reached the land of Nallamma in M.T. Doddithomiyapalya road, at that time, a Tata Ace Goods auto bearing Regn. No.KA-10/2181 came from opposite direction in a rash and negligent manner and dashed to the motor cycle of the appellant. Due to this impact, the appellant fell down and sustained injuries. Immediately he was shifted to Government hospital, Kollegal for first aid treatment and then shifted to JSS hospital, Mysore where he took treatment as an inpatient. After recovering from the injuries, he filed a claim petition before the Tribunal in MVC No.731/2011. To establish his case, he examined himself as PW1 and also examined a doctor as PW2 and marked 15 documents and on the other hand, the insurance company has examined one witness and marked three documents. On appreciation of the oral and documentary evidence, the Tribunal granted a compensation of Rs.94,000/- with 6% p.a. Being aggrieved by the same, the appellant has filed this appeal for enhancement of compensation.
3. The learned counsel for the appellant submits that due to the accident, the claimant has suffered fracture of right femur middle 1/3rd, fracture of fifth toe and he was hospitalised for 21 days and he has examined Doctor by name T. Yathiraj as PW2. In his deposition, he has stated that there is disability of 12% and he further submits that he was inpatient for 21 days. He has suffered lot of pain and he has undergone surgery. The Tribunal is not justified in granting only compensation of Rs.94,000/- and hence sought for enhancement of compensation. He further submits that the Tribunal is not justified in fastening liability on the owner of the vehicle. In view of the law laid down in the case of MUKUND DEWAGAN VS ORIENTAL INSURANCE COMPANY LIMITED, AIR 2017 SC 3668, it is the insurance company which is liable to pay the compensation. Hence he sought for allowing of this appeal.
4. Per contra, the learned counsel for the Insurance company submits that due to accident, the appellant has suffered only minor injuries, the whole body disability is less than 5% and that all fractures are united. The Tribunal has granted just and fair compensation. He further contended that the driver of the vehicle has the licence to drive only LMV vehicle and he was driving the transport vehicle. Therefore, the Tribunal is justified in fastening the liability on the owner of the vehicle. Hence, he sought for dismissal of the appeal.
5. Heard the learned counsel for the parties and perused the records.
6. It is not in dispute that due to accident occurred on 31.1.2011, the claimant has suffered injuries due to rash and negligent driving the auto bearing regn No.KA -10/2181 and he has suffered fracture of right femur middle 1/3rd, fracture of fifth toe. He has examined the Doctor –T Yathiraj PW2 who has deposed that there is disability to the extent of 12%. He has undergone treatment as inpatient for 21 days and he suffered whole body disability to the extent of 4%. Therefore, the Tribunal is not justified in granting compensation towards disablement only Rs.10,000/-.
7. The claimant has to suffer the disability throughout his life. Therefore, compensation has to be awarded towards future loss of income. Even though claimant has claimed that he was doing dairy farming and agriculture and earning Rs.30,000/- per month, he has not produced any documents to establish the same. Hence, the Tribunal had no other option but to assess the notional income of the claimant at Rs.4,000/- per month, which is on the lower side. In catena of decisions, this Court is following the chart prepared by the Lokadalath for deciding the cases. For the accident of the year 2011, notional income of Rs.6,500/- per month has to be taken. Accordingly, future loss of income is calculated as under:
Rs.6,500 x 12 x 4% x 15 = Rs.46,800/-.
Accordingly, claimant is entitled for Rs.46,800/- towards future loss of income on account of disability.
8. Since the claimant was inpatient for a period of 21 days, a compensation of Rs.6000/- is granted by the Tribunal towards attendant charges and nourishing food and Rs.3000/- is granted for conveyance. I am inclined to enhance the same by Rs.20,000/-. The loss of income during laid up period has been enhanced from Rs.12,000/- to 19,500/-.
9. The claimant has suffered 12% disability and whole body disability at 4%. The Tribunal is not justified in granting Rs.2400/- towards discomfort and loss of amenities of life. This Court is of the opinion that the same is on the lower side and enhance the same from Rs.2400/- to Rs.20,000/-. The Tribunal has rightly granted Rs.20,600/- towards medical expenses. The same does not require enhancement. Hence the claimant is entitled for the following compensation.
1. Pain and suffering Rs.40,000/-
2. Attendant charges Nourishment & Conveyance Rs.20,000/-
3. Medical expenses Rs.20,600/-
4. Loss of income during treatment period Rs.19,500/-
5. Loss of future income on account of disability Rs.46,800/-
6. Loss of amenities Rs.20,000/- Total Rs.1,66,900/-
10. The Tribunal, relying upon the judgment of this Court as well as the judgment of the Hon’ble Supreme Court, fastened the liability on the owner of the vehicle on the ground that the driver of the offending vehicle has drive licence to drive LMV vehicles and he was driving transport vehicle. Now the Hon’ble Supreme Court in the case of MUKUND DEWAGAN (supra), held that the driver holding LMV licence can drive the transport vehicle. In view of the law laid down by the Hon’ble Supreme Court, the liability is fastened on the Insurance Company.
11. The appeal is allowed in part. The appellant is entitled for a total compensation of Rs.1,66,900/- as against Rs.94,000/- granted by the Tribunal. The enhanced amount carries interest at 6% p.a. from the date of petition till the date of payment.
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. from the date of petition till the date of deposit within six weeks from the date of receipt of a copy of this order.
Sd/- JUDGE nm