IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3524 OF 2015 (MV) BETWEEN Dr. B.M.Nagappa S/o Madashetty Aged about 53 years R/at 1st Cross, Vidyanagar Mandya City – 571 401. ... Appellant (By Sri. Raja L., Advocate) AND 1. Sri. M. Mahesh S/o Sri Mallappa Aged: Major R/at # 38/1st Main Sampige Layout, Binnipet Bengaluru – 560 072.
2. The Authorised Signatory TATA AIG General Insurance Co. Ltd. Branch office at Bengaluru Kanija Bhavan, 5th Floor Race Course Road Bengaluru – 560 001. ... Respondents (By Sri. B. Pradeep, Advocate for R2; Notice to R1 is d/w v/o dtd: 25.04.2019) This MFA is filed under Section 173(1) of M.V.Act against the judgment and award dated 03.12.2014 passed in MVC.No.292/2010 on the file of the Principal Senior Civil Judge and MACT, Mandya, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA is coming on for Orders, this day, the court made the following:
J U D G M E N T The claimant is in appeal under Section 173 (1) of Motor Vehicles Act, not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 03.12.2014 in M.V.C. No.292/2010 on the file of the Principal Civil Judge (Sr.Dn.) and MACT, Mandya.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident.
3. It is stated that on 20.03.2010, when the claimant along with one Santhosh were proceeding in a motor cycle bearing reg.No.KA-09/EX-5613, TATA Sumo car bearing reg.No.KA-02/MB-3810 came in a rash and negligent manner and dashed to the claimant’s motor cycle. Due to which, the claimant fell down and sustained grievous injuries. It is stated that immediately the claimant was taken to Mandya District Hospital and thereafter to JSS Hospital, Mysuru, where he was inpatient from 20.03.2010 to 31.03.2010 for a period of 12 days. It is stated that the claimant was working as a Secretary in an NGO i.e., Integrated Rural and Urban Development Institute and he was earning Rs.22,00,000/- per year.
4. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed the objections. Respondent No.1 contended that he is not the driver of the car and he is not the owner of the car. It was transferred in the name of One M.Mahesh and produced R.C. in this regard. Respondent No.2 in its objection statement contended that on the date of accident, the offending vehicle was not insured with respondent No.2-Insurer. The accident occurred solely due to the rash and negligent driving of the claimant himself. It is also contended that the driver of the offending vehicle was not possessing valid and effective driving license as on the date of the accident.
5. The claimant himself examined as PW.1 and also PW.2-Doctor. Apart from that, got marked 16 documents as Exs.P.1 to P.16. The respondent examined RW.1 and also marked 2 documents as Exs.R1 and R2.
6. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.1,07,740/- with 6% interest per annum from the date of petition, till the date of realization on the following heads:
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
7. Heard the learned counsel for the appellant/claimant and learned counsel for respondent No.2/insurer. Perused the material on record including the lower court records.
8. Learned counsel for the appellant submits that the quantum of compensation awarded is on the lower side. Hence, he prays for enhancement of compensation. The Doctor assessed the whole body disability at 19%. But Tribunal failed to assess the same for the purpose of awarding compensation under the head of “Loss of income due to disability”. The claimant suffered fracture of Tibia and Fibula which would come in the way of normal functioning. He also further submits that the Tribunal has failed to award any compensation under the head ‘amenities’ and compensation awarded on the head of ‘pain and suffering’, ‘conveyance, nourishment and attendant charges’ are on the lower side. Thus, he prays for enhancement of compensation.
9. Per contra, learned counsel for respondent No.2- Insurance Company submits that the quantum of compensation awarded by the Tribunal is just compensation which needs no inference. He further submits that the Tribunal has not rightly assessed the whole body disability to award compensation on the head of ‘loss of income due to disability’. The claimant failed to prove the whole body disability and reduction of income due to accidental injuries. Thus, he seeks for dismissal of the appeal.
10. Having heard the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in this appeal;
a) whether the Tribunal is justified in not assessing the whole body disability?
b) Whether the claimant would be entitled for enhanced compensation?
Answer to point Nos.1 and 2 would be in the affirmative for the following reasons:
11. The accident occurred on 20.03.2010 involving motor cycle bearing Reg.No.KA-09/EX-5613, TATA Sumo car bearing Reg.No.KA-02/MB-3810 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The appeal is for enhancement of compensation by the claimant. The claimant sustained fracture of Tibia and Fibula. He was inpatient for a period of 12 days for treatment. Ex.P5 is copy of Wound Certificate and Ex.P14 is case sheet of JSS Hospital. Exs.P5 and P14 would disclose the injuries suffered and treatment taken by the claimant as an inpatient for a period of 12 days. PW.2- Doctor, in his evidence stated that the claimant suffered 19% whole body disability. The Tribunal has not assessed the whole body disability for the purpose of awarding compensation under the head of ‘loss of income due to disability’. The Doctor has not stated disability to a particular limb. Without assessing the disability to a particular limb, the Tribunal could not assess the whole body disability. The claimant who claims to be working as a Secretary-cum-Director of NGO called Integrated Rural and Urban Development Institute has failed to demonstrate as to how the injuries suffered by him would come in the way of functioning as Director and he has also failed to demonstrate that due to injuries, the salary or his income has been reduced. In that view of matter, the Tribunal is justified in not awarding the compensation by assessing the whole body disability.
12. The claimant was inpatient for a period of 12 days to take treatment for the injuries suffered in a road traffic accident. He has also undergone surgery. Looking to the injuries suffered, the evidence of PW.2-Doctor and treatment taken by the claimant, I am of the view that the compensation awarded on the head of pain and suffering at Rs.30,000/- is on the lower side. Hence, the claimant would be entitled for another Rs.10,000/- on the said head. The compensation awarded on the head of ‘conveyance, nourishment and attendant charges’ at Rs.5,000/- is on the lower side when the claimant taken treatment for 12 days as inpatient. Hence, the claimant would be entitled for another Rs.10,000/-. The Tribunal has not awarded any compensation on the head of ‘loss of amenities’. Looking to the injuries suffered, fracture of Tibia and Fibula, the claimant would be entitled for Rs.30,000/- on the head of ‘loss of amenities’.
13. Thus, the claimant would be entitled for enhanced compensation of Rs.50,000/- in addition to Rs.1,07,740/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of realization.
The judgment and award of the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
NR/-
Sd/- JUDGE