IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.5009/2015 [MV] BETWEEN:
MR.GIRIYAPPA S/O KADTHA AJILA, AGED ABOUT 43 YEARS, R/O DONIMAKHI HOUSE, SUBRAMANYA VILLAGE, SULLIA TALUK, D.K.DISTRICT, NOW RESIDENT OF PILIPAJARA OF ARYAPU VILLAGE, PUTTUR TALUK, D.K.DISTRICT -574201.
...APPELLANT (BY SRI.VISHWAJITH SHETTY S, ADV.) AND:
1. SRI RAMAYYA AGED ABOUT 40 YEARS, S/O KUMBA AJILA, R/O PARVATHAMAKHI HOUSE, SUBRAMANYA VILLAGE, SULLIA TALUK, D.K. DISTRICT- 574201.
2. THE BRANCH MANAGER THE UNITED INDIA, INSURANCE CO.LTD., PRABHU BUILDING, MAIN ROAD, PUTTUR TALUK, D.K.DISTRICT- 574201.
…RESPONDENTS (BY SRI.D VIJAYAKUMAR, ADV. FOR R2 R1 IS SERVED) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.03.2014 PASSED IN MVC NO.1921/2012 ON THE FILE F THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER, ADDITIONAL MACT, D.K., MANGALORE, SITTING AT PUTTUR, D.K., 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 claimant is in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 12.03.2014 passed in MVC No.1921/2012 on the file of the V Additional District and Sessions Judge and Member, Additional Motor Accident Claims Tribunal, Mangalore sitting at Puttur (hereinafter referred to as 'the Tribunal' for short).
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. It is stated that on 17.12.2011, when the claimant was traveling in an auto rickshaw bearing registration No.KA-21/9638, the driver of the said auto rickshaw drove the same in a rash and negligent manner, due to which, the vehicle capsized on the road. Immediately, he was shifted to the hospital for treatment. It is stated that the claimant was aged about 40 years and by working as a mason earning Rs.12,000/- p.m.
3. On issuance of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2/insurance company appeared before the Tribunal and filed its statement denying the claim petition averments. Further it is stated that the claim is exorbitant and excessive. The insurer also contended that the accident occurred solely due to negligence of the claimant who, all of a sudden tried to get down from the auto rickshaw, which resulted in occurrence of the accident. It is also contended that the driver of the offending auto rickshaw had no valid and effective driving license as on the date of accident.
4. The claimant got himself examined as P.W.1 and also examined P.W.2-Doctor apart from marking the documents as Ex.P1 to Ex.P25. Respondent No.2 marked the insurance policy as Ex.R1.
5. The Tribunal, appreciating the material on record awarded total compensation of Rs.3,86,000/- with interest at the rate of 6% p.a., from the date of petition till deposit, on the following heads:
1. Pain and agony :: Rs. 20,000/-
2. Loss of future amenities and enjoyment of life and disfiguration :: Rs. 20,000/-
3. Medical expenses and nourishment, food, conveyance & attendant charges :: Rs. 75,000/-
4. Future medical expenses :: Rs. 20,000/-
5. Loss of income during treatment period :: Rs. 20,000/-
6. Loss of future income and earning capacity 5,500x12x14x25/100 :: Rs.2,31,000/-
Total Rs.3,86,000/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.5,500/- p.m., and assessed the whole body disability at 25%. Not being satisfied with the quantum of compensation, the appellant/claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/insurance company. Perused the material on record.
7. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs.5,500/- pm., is on the lower side. It is submitted that the accident had taken place in the year 2011. Even a coolie, during the relevant period would have earned more than Rs.300/- per day which would be more than Rs.9,000/- p.m. He submits that the Doctor who was examined as P.W.2 has opined that the claimant suffers 35% whole body disability. The claimant has suffered fracture of fibula and tibia and has undergone 3 major surgeries. The claimant was inpatient for a period of 38 days on 4 intervals. Therefore, the compensation awarded on various heads is also on the lower side. Thus, prays for enhancement of compensation.
8. Learned counsel for the respondent/insurance company submits that the compensation awarded by the Tribunal is on the higher side and he submits that the Doctor-P.W.2 has opined that the claimant suffers 35% disability to a particular limb, since the claimant has suffered fracture of fibula and tibia. The whole body disability has to be assessed at 1/3rd of the disability to particular limb. In the instant case, the whole body disability ought to have been assessed at 12% taking into account the disability of 35% to a particular limb. He also submits that the compensation awarded on various heads is on the higher side and prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arises for consideration in this appeal is as to “whether the claimant would be entitled for enhanced compensation?”
10. Answer to the above point is in the partly affirmative for the following reasons:
The accident occurred on 17.12.2011 involving the auto rickshaw bearing registration No.KA-21/9638 and the accidental injuries suffered by the claimant are not in dispute in this appeal. Claimant’s appeal is for enhancement of compensation. The claimant states that he was working as a mason and was earning Rs.12,000/- p.m. He has placed on record Ex.P19- salary certificate, but he has not examined the person who issued the salary certificate or any other person to substantiate the said contention. In the absence of any material to indicate his exact income, the Tribunal assessed the notional income of the claimant at Rs.5,500/-.
11. The Doctor in his evidence has stated that the claimant suffers from 35% disability to a particular limb. The Tribunal, without there being any reason has assessed the whole body disability at 25% which is on the higher side. The claimant has suffered fracture of fibula and tibia and has undergone 3 major surgeries. The claimant has placed on record Ex.P7, Ex.P8, Ex.P9 and Ex.P18-discharge summaries to substantiate surgery undergone by the claimant as inpatient for a period of 38 days on 4 intervals. Normally, the whole body disability would be assessed at 1/3rd of the disability to a particular limb. In the instant case, as stated by the Doctor-P.W.2, the claimant has suffered 35% disability to a particular limb and permanent disability would be 1/3rd of 35% which would be 12%. But, the Tribunal has taken 25%, which is not correct.
12. The income assessed by the Tribunal is slightly on the lower side whereas the disability assessed by the Tribunal is on the higher side. Therefore, both disability and income assessed by the Tribunal would balance and no prejudice would be caused to the claimant on the quantum of compensation awarded on the said heads. But, looking to the surgeries undergone as inpatient for 38 days and fracture of fibula and tibia, I am of the view that the claimant would be entitled for a sum of Rs.30,000/- as global compensation in addition to Rs.3,86,000/- awarded by the Tribunal.
Accordingly, the appeal is allowed in part. The judgment and award dated 12.03.2014 passed in MVC No.1921/2012 on the file of the V Additional District and Sessions Judge and Member, Motor Accident Claims Tribunal, Mangalore sitting at Puttur is modified to the above extent. The claimant would be entitled to enhanced global compensation of Rs.30,000/- in addition to the compensation awarded by the Tribunal.
This Court, by order dated 13.07.2017 allowed the application for condonation of delay of 381 days in preferring the appeal, subject to condition that the appellant/claimant would not be entitled to interest for the delayed period, in case of enhancement of compensation. Accordingly, the claimant would not be entitled to interest for the delayed period on the enhanced compensation.
Sd/-
JUDGE mpk/-* CT:bms