IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MFA N0.2606 OF 2015 (MV) BETWEEN GOVINDARAJU @ UPPI @ KARIYA S/O MARIYAIAH @ BILIYAIAH, AGED ABOUT 29 YEARS, R/O HULLEGALA VILLAGE, MADDUR TQ, MANDYA DISTRICT-571414 (BY SRI M Y SREENIVASAN, ADVOCATE) AND 1 . THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., M.C.ROAD, MANDYA-571 401.
2 . SUHAIL B K S/O I.R.ABDUL KHYAM, MAJOR, NO.5, BI PATEL MANOR, AMC YARD KAVAL, BYRASANDRA, BANGALORE-560 003.
...APPELLANT …RESPONDENTS (BY SRI A N KRISHNASWAMY, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:11.12.2014 PASSED IN MVC NO.485/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, MADDUR, 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 Vehicle Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 11.12.2014 in M.V.C.No.485/2014 on the file of the Senior Civil Judge & MACT, Maddur, praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of Motor Vehicles Act claiming compensation for the injuries suffered in a road traffic accident. It is stated that on 23.02.2014 when the claimant was proceeding in a moped vehicle bearing registration No.KA-05/HA- 6308, a car bearing registration No.KA-04-Z-4445, came in a rash and negligent manner and dashed to the moped, as a result, the claimant fell down and sustained grievous injuries. Immediately, he was taken to the Government Hospital, Malavalli, wherein first aid treatment was given and thereafter he was shifted to General Hospital, Mandya wherein he was treated as inpatient for nearly 40 days. It is stated that as on the date of accident, the claimant was aged 28 years and earning a sum of Rs.15,000/- per month working as Mason.
3. On issuance of notice, respondent No.1 remained absent and respondent No.2-Insurer appeared and filed its objections denying the claim petition averments but admitted the policy in respect of the offending car. It is also stated that policy is not at all covered for the inmates of the private car as there is no extra premium paid. However, insurer contended that the accident occurred due to the negligence on the part of the claimant. The driver of the offending car had no valid licence to drive vehicle in a question. The claim is highly excessive and exorbitant.
4. The claimant examined himself as PW1 also Doctor as CW1. Apart from that marked Ex.P1 to P11 and C1 to C13 documents. The respondent got marked Ex.R1- Insurance Policy.
5. The Tribunal on appreciating the material on record both oral and documentary awarded total compensation of Rs.4,55,000/- with interest at 6% per annum, from the date of petition till realisation, on the following heads:
1. Loss of future earning Rs.2,01,960/-
2. Pain and Suffering Rs.85,000/-
3. Loss of amenities Rs.50,000/-
4. Medical Expenses, conveyance, food and nourishment, Rs.85,000/-
attendant and other incidental charges 5. Loss of income during laid up perod Rs.15,000/-
6. Future medical expenses Rs.15,000/-
Total Rs.4,54,960/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.4,500/- per month and the Doctor has assessed the whole body disability at 22%. The claimant being aggrieved by the assessment of the income at Rs.4,500/- per month is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent - Insurer.
7. Learned counsel for the appellant would submit that the income assessed by the Tribunal is on the lower side. He submits that he was working as Mason and earning Rs.15,000/- per month. The Tribunal failed to appreciate the claim made by the appellant while assessing the notional income. He further submits that in the year 2014 a coolie would have earned Rs.300/- per day and which would be Rs.9,000/- per month. Thus he submit that the income assessed by the Tribunal requires to be enhanced.
8. Per contra, learned counsel for the respondent – Insurance Company would submit that the quantum of compensation awarded by the Tribunal is just compensation, which requires no interference. He further submits that notional income of the claimant at Rs.4,000/- in the absence of any material is correct and claimant has not produced any proof with regard to the exact income of the claimant. Thus, he prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties, point that arise for consideration in this appeal is, whether the Tribunal is justified in assessing the income of the claimant at Rs.4,500/-p.m. in the facts and circumstances of the case? Answer to the above point is in the negative, for the following reasons:
10. The accident occurred on 23.02.2014 involving moped vehicle bearing registration No.KA- 05/HA 6308 and a car bearing registration No.KA-04-Z- 4445 and the accidental injuries suffered by the claimant is not in dispute. In this appeal, the claimant is seeking enhancement of compensation. It is stated by the claimant that he was working as a Mason and earning Rs.15,000/- per month, but not placed any material on record to indicate his exact income. In the absence of the material on record, the Tribunal assessed the notional income of the claimant at Rs.4,500/-p.m., which is on the lower side. Taking note of the standard of living, and price index, the notional income is to be assessed on higher side. This court and the Lok Adalath while settling the accident claims of the year 2014 would normally assess the notional income at Rs.8,500/- per month. In the instant case, in the absence of any material to indicate the exact income, it would be appropriate to take notional income at Rs.8,500/- per month. The claimant has suffered fracture of femur and tibia. The Doctor CW1 assessed permanent disability at 21% to the whole body. The Tribunal taking note of the evidence of CW1 Doctor, nature of injury and the treatment taken by the claimant assessed the whole body disability at 22%, which is proper and correct and the same is not under challenge. The disability assessed by the Tribunal is proper and correct. The compensation awarded on other heads are just compensation, it needs no interference. Thus the claimant is entitled to enhanced compensation under the head of loss of future earning due to disability as follows; Rs.8500x12x17x22/100 = Rs.3,81,480/-. The Tribunal has awarded compensation towards loss of income during laid up period for four months. In view of the reassessment of the income of the claimant at Rs.8,500/- per month, the claimant would be entitled for compensation of Rs.34,000/- under the head of loss of income during the laid up period. Thus the claimant would be entitled for enhanced compensation of Rs.1,95,520/- with interest at 6% per annum from the date of deposit till realisation.
11. The judgment and award passed by the Tribunal is modified in the aforesaid terms. Accordingly, appeal is allowed in part.
Sd/- JUDGE KLY/