IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MFA No.2132 OF 2013 (MV) BETWEEN DASAPPA S/O GIRIYAPPA AGED ABOUT 28 YEARS, AGRICULTURIST, R/O ANNEHAL, JAMPAYANNA HATTY VILLAGE, CHITRADURGA TALUK.
(BY SRI C RANGAJJA, ADVOCATE FOR SRI R SHASHIDHARA, ADVOCATE) AND 1. S R GIRISH S/O RAMACHANDRAPPA AGE MAJOR, OWNER OF INNOVA CAR BEARING NO.KA-51-P-8449, R/O MADURI MOTOR SERVICE, SHIVAGANGA VILLAGE, HOLALKERE TALUK, CHITRADURGA DISTRICT.
2. BRANCH MANAGER UNIVERSAL SOMPO GENERAL INSURANCE CO., LTD., A-201, CRYSTAL PLAZA, 2ND FLOOR, OPPOSITE INFINITI MALL, ...APPELLANT LINK ROAD, ANDHERE (WEST), MUMBAI-400058.
…RESPONDENTS (BY SRI H N KESHAVA PRASHANTH, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 01-08-2014) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 3.12.2012 PASSED IN MVC No.540/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-4, CHITRADURGA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 03.12.2012 in M.V.C.No.540/2011 on the file of II Additional Senior Civil Judge and Additional MACT-IV, at Chitradurga.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries suffered in a road traffic accident occurred on 08.08.2011. It is stated that on 08.08.2011, when the claimant and his friend were traveling in a motorcycle bearing Reg.No. KA.16-R- 7740, car bearing Reg.No.KA.51-P-8449, came in a rash and negligent manner and dashed to the motorcycle, as a result, the claimant sustained grievous injuries. Immediately, he was shifted to District Government Hospital, Chitradurga, wherein he took treatment as an inpatient for more than 60 days. It is stated that the claimant was an agriculturist and was earning Rs.6,000/- per month and he was aged about 26 years as on the date of accident.
3. On service of notice, respondent No.2- Insurance Company appeared before the Tribunal and filed its statement of objections denying the entire claim petition averments. It is further contended that the alleged accident occurred due to the negligent riding of the motorcycle and there is contributory negligence on the part of the rider of the motorcycle also. It was also contended that the rider of the motorcycle had no valid and effective driving license as on the date of the accident.
4. The claimant examined himself as PW-2 and got marked documents Ex.P-1 to P-30 and also got examined Doctor as PW-3. The respondent Insurance Company got exhibited Insurance Policy at Ex.R-1, but not chosen to lead any oral evidence.
5. The Tribunal on appreciating the entire material on record, awarded a total compensation of Rs.1,01,200/- with interest at the rate of 6% per annum, from the date of petition till realization, on the following heads:
01. Towards loss of future income due to disability Rs.61,200/-
02. Towards pain and suffering Rs.20,000/-
03. Towards traveling expenses, Conveyance, attendants charges, diet, etc., Rs.5,000/-
04. Towards future amenities Rs.5,000/-
05. Towards medical expenses Rs.10,000/-
In all total Rs. 1,01,200/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.3,000/- per month and assessed the whole body disability at 10.25%. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal, praying enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurance Company. Perused the entire lower court records.
7. Learned counsel for the appellant would submit that the compensation awarded by the Tribunal is on the lower side. For determining the compensation on the head of ‘Loss of future income due to disability’, the Tribunal assessed the income of the deceased at Rs.3,000/- per month, which is on the lower side. The claimant was earning more than Rs.6,000/- per month by doing agricultural work. It is further submitted that the doctor opined that the claimant suffers from permanent disability of 36% with respect to his right lower limb and 5% disability with respect to his left lower limb, in total 41% disability. But, the Tribunal without any reasons assessed the total disability of 10.25%, which is on the lower side. It is further submitted that the claimant had suffered comminuted fracture of right clavicle bone and comminuted fracture of lower end of both bones of right leg and also fracture of 2nd, 4th and 5th metatarsal bones and the claimant taken treatment for more than 60 days as inpatient. Looking to the injuries suffered and treatment taken by the claimant, the compensation awarded on the other heads are also on the lower side. Hence, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2– Insurance Company would submit that the compensation awarded by the Tribunal is just compensation. The Tribunal assessed the disability at 10.25% taking note of the evidence of the doctor, PW-
3 and nature of injuries suffered. The compensation awarded by the Tribunal is just and proper, which needs no interference and prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and having perused the material on record, the following points that arise for consideration in this appeal:
1) Whether the Tribunal is justified in assessing the income of the deceased at Rs.3000/- per month?
2) Whether the Tribunal is justified in assessing the disability at 10.25%?
3) Whether the claimant would be entitled to the enhanced compensation?
Answer to the points No.1 and 2 are in the negative and point No.3 is in the affirmative, for the following reasons:
10. The accident occurred on 08.08.2011, involving a motorcycle bearing Reg.No. KA.16-R-7740 and car bearing Reg.No.KA.51-P-8449, and the accidental injuries suffered by the claimant, is not in dispute in this appeal and the claimant is seeking enhancement of compensation. Learned counsel for the claimant stated that the income of the claimant assessed by the Tribunal at Rs.3,000/- per month is on the lower side, whereas the claimant was earning more than Rs.6,000/- per month by doing agricultural work. But no material is placed on record to indicate the exact income of the claimant. In the absence of the material on record, income to be determined notionally. The notional income assessed by the Tribunal at Rs.3,000/- per month is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011 at Rs.6,500/- per month. In this case the claimant stated that he was earning Rs.6,000/- per month and I deem it appropriate to take Rs.6,000/- per month as income of the claimant for determination of the compensation.
11. The claimant had suffered comminuted fracture of right clavicle bone and comminuted fracture of lower end of both bones of right leg and also fracture of 2nd, 4th and 5th metatarsal bones. Ex.P12 is wound certificate of the claimant. The claimant has taken treatment for more than 60 days as inpatient. PW-3 doctor opined that the claimant suffered permanent disability of 36% with respect to his right lower limb and 5% disability with respect to his left lower limb, in total 41% permanent disability. Ex.P14 Disability certificate issued by the PW-3 Doctor. The doctor has assessed the disability to a particular limb, but he has not assessed whole body disability. PW-2 claimant herein in his cross- examination has admitted that he can walk properly without the help of any person and there is no difficulty for him to walk. Taking note of evidence of PW-2, claimant and PW-3, doctor, nature of the injuries suffered and treatment taken, the Tribunal assessed the disability at 10.25%, which needs no interference.
12. Further, looking to the injuries suffered by the claimant and treatment taken by him as an inpatient for about 60 days, he would have been out of employment for nearly six months. But, the Tribunal failed to award any compensation under the head ‘Loss of income during the laid up period’, which the claimant would be entitled for the compensation in a sum of (6000x6=36,000) Rs.36,000/-, under the said head. The compensation awarded by the Tribunal on the others heads also on the lower side. The claimant would be entitled to a sum of Rs.10,000/- towards ‘Traveling expenses, conveyance, attendance charges, diet, etc.’ in addition to Rs.5,000/- as awarded by the Tribunal. Further, the claimant would be entitled to a sum of Rs.15,000/- under the head ‘Future amenities’. The claimant taken treatment as an inpatient for about 60 days and he has undergone surgery, as such, the compensation awarded under the head ‘Pain and suffering’ at Rs.20,000/- is on the lower side, for which the claimant would be entitled to a sum of Rs.10,000/- in addition to the compensation awarded by the Tribunal.
13. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
1. Towards loss of future income due to disability (6000x12x17x10.25/100) Amount in (Rs.) 1,25,460 2. Towards pain and suffering 30,000 3. Towards traveling expenses, conveyance, attendance charges, diet etc.
15,000 4. Towards future amenities 20,000 5. Towards medical expenses 10,000 6. Towards loss of income during paid up period 36,000 Total 2,36,460 14. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,36,460/- as against Rs.1,01,200/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Lower court records be returned forthwith.
Sd/- JUDGE DL