IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.4277/2015 (MV) BETWEEN:
GAYATHRI W/O RAJAPPA @ RAJANNA AGED ABOUT 32 YEARS R/O AGATHAGOWDANAHALLY VILLAGE GUNDLUPET TQ., CHAMARAJANAGAR 571440.
(BY SRI.M Y SREENIVASAN, ADV.) AND:
1. PARTHIBAN S/O RAMASWAMY AGED ABOUT 38 YEARS R/O NO.33, B S COLONY HAL 2ND STAGE INDIRANAGAR BANGALORE -560039.
2. THE BRANCH MANAGER RELIANCE GENERAL INSURANCE CO. LTD., 1ST FLOOR, MYSORE TRADE CENTER OPP. KSRTC BUS STAND MYSORE -570001.
...APPELLANT (BY SRI. B PRADEEP, ADV. FOR R2 R1 – NOTICE D/W V/O DT:23.09.2015) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.10.2014 PASSED IN MVC NO.117/2013 ON THE FILE OF THE DISTRICT JUDGE AND MEMBER, MACT, AT CHAMARAJANAGAR, 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 appellant/claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 29.11.2014 passed in MVC No.118/2013 on the file of District and Sessions Judge and Member, MACT, at Chamarajanagar, praying for enhancement of compensation.
2. The accident that took place on 10.01.2013 involving Motor Bike bearing Reg.No.KA-10-J-9463 and Mahindra Pick Up Van bearing Reg.No.KA-51-9816 and the injuries sustained by the claimant are not in dispute. The claimant’s appeal is for enhancement of compensation. The Tribunal on appreciating the material on record awarded total compensation of Rs.55,000/- with interest at 9% p.a. from the date of petition till the date of realization on the following heads:-
1. Pain and suffering 30,000/-
2. Medical Expenses 1,500/-
3. Travelling Expenses 1,000/-
4. Food etc. 2,000/-
5. Loss of disability 51,000/-
6. Medical attendant expenses 1,000/-
Total Rs.86,500/-
While awarding the above compensation the Tribunal assessed the income of the claimant at Rs.5,000/- per month, assessed the whole body disability at 5% and adopted multiplier of ‘17’. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal, seeking enhancement of compensation.
3. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent - Insurer. Perused the entire material on record.
4. The learned counsel for the appellant would submit that the claimant’s appeal is for enhancement of compensation on three counts. Firstly the monthly income assessed at Rs.5,000/- is on the lower side. He submits that the claimant was earning monthly salary of Rs.10,000/- per month by working as Teacher. The Tribunal without appreciating the claimant’s avocation assessed the income at Rs.5,000/- per month, which is on the lower side. He further submits that the claimant had sustained fracture of greater tuberosity, Left shoulder movement restricted and painful, flexion and extension 180 degree, loss of 40 degree, abduction and abduction 145 degree, loss of 35 degree, rotation 145 degree, loss of 35 degree in respect of left shoulder, and the doctor had opined that the claimant suffered 30% disability to the particular limb and 15% functional disability. Looking to the injuries suffered, the Tribunal ought to have awarded compensation on the head of loss of amenities and loss of income during laid up period. Thus he prays for enhancement of compensation 5. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. He further submits that the claimant states that she was working as a teacher but she has not placed on record any material to establish that due to accidental injuries her income is reduced. In that circumstances, the Tribunal is justified in assessing the income of the claimant at Rs.5,000/- per month and functional disability at 15% which also needs no interference, hence prays for dismissal of the appeal.
6. Having heard the learned counsels for the parties and on perusal of the material on record, the only point that arises for consideration is as to “Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?” Answer to the said point is partly in the affirmative for the following reasons :
The accident is of the year 2013. The claimant states that she was earning monthly salary of Rs.10,000/- by working as a Teacher, but she has not placed on record any material to establish her avocation and also the income. In the absence of any material, the Tribunal assessed the income of the claimant at Rs.5,000/- per month but the same is on the lower side. This Court and the Lok Adalath while settling the accidental claims of the year 2013 would normally take notional income of Rs.8,000/- per month, wherever there is no material to establish the income. In the instant case, in the absence of any material to establish the monthly income of the claimant, it would be appropriate to take the monthly income notionally at Rs.8,000/- per month for determining the compensation on the head ‘Loss of future income due to disability’. The claimant has sustained the injuries as stated above. PW.4 – the Doctor states that the claimant has suffered physical disability of 30% to a particular limb and 15% total physical and functional disability. Taking note of the same the Tribunal assessed the physical disability at 15% which is just and proper, which needs no interference. But looking to the nature of injuries sustained and treatment taken by the claimant, the claimant would be entitled to compensation on the head ‘loss of amenities’. Looking to the nature of injuries sustained I am of the view, the claimant would be out of employment for a minimum period of two months. Hence, the claimant would be entitled for loss of income during laid up period. Thus the claimant would be entitled for the following modified compensation:-
7. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to modified compensation in a sum * Corrected vide Court order dated 07.01.2020 of *Rs.1,51,100/- as against Rs.86,500/- awarded by the Tribunal with interest at 9% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms * Corrected vide Court order dated 07.01.2020