IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.9149/2015 [MV] BETWEEN:
HANUMANTHA S/O LATE SANJEEVAPPA AGED ABOUT 27 YEARS R/AT NO.32, RAMASANDRA KENGERI POST BANGALORE-40.
PERMANENT R/OF 24TH WARD SIRISINAKALLU, HOSAPETE BELLARY DIST.
... APPELLANT (BY SRI. R LAKSHMANA, ADV.) AND:
1. LAKSHMI DEVI T V D/O VENKATESH T R/AT NO.7, 22ND CROSS MALAGALA 2ND STAGE BANGALORE-91.
2. M/S. HDFC ERGO GENERAL INSURANCE CO. LTD., BY ITS MANAGER UNIT NO.108/109/110/111 1ST FLOOR, H M GENEVA HOUSE NO.14, CUNNINGHAM ROAD NEXT TO FORTIS HOSPITAL BANGALORE-560 051.
(BY SRI. O MAHESH, ADV. FOR R2 R1-NOTICE D/W V/O DT:12/09/2017) ... RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 10.08.2015 PASSED IN MVC NO. 5002/2014 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, 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 Claimant is before this Court, being not satisfied with the quantum of compensation awarded under the judgment and award dated 10.08.2015 in MVC No.5002/2014 on the file of the Motor Accident Claims Tribunal, Benglauru (hereinafter referred to as 'the Tribunal' for short).
2. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in a road traffic accident. It is stated that on 10.11.2014, when the claimant was proceeding towards Pattegarpalya, a Honda Activa bearing registration No.KA-02/EP-1882 came in a high speed and in rash and negligent manner and dashed against the claimant, due to which, he fell down and sustained grievous injuries. Immediately after the accident, he was shifted to Shobha hospital and thereafter, he was shifted to Victoria hospital wherein he took treatment as inpatient for 15 days. It is also stated that he has undergone surgery and internal fixation has been done. The claimant used to earn Rs.12,000/- p.m. by working as Tiles, Marbles and Granites fitter.
3. The second respondent/insurer appeared before the Tribunal and filed written statement contending that the petition itself is not maintainable and sought protection under Sections 147 and 149 of the Motor Vehicles Act. It is also stated that rider of the offending motorcycle was not holding valid and effective driving license as on the date of accident. Hence, sought for dismissal of the claim petition.
4. The claimant examined himself as P.W.1 and also examined the doctor as P.W.2 apart from marking documents as Ex.P1 to Ex.P15. The respondents have not led any evidence nor marked any documents in support of their case.
5. The Tribunal, on considering the material available on record awarded total compensation of Rs.3,26,640/- considering the whole body disability of the claimant at 13% and assessing the income of the claimant at Rs.7,000/- p.m. Not being satisfied with the quantum of compensation, the appellant is before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and perused the appeal papers.
7. Learned counsel for the appellant would submit that the claimant suffered fracture of both bones of right leg. The doctor has opined that the claimant has suffered 44% disability to a particular limb and 22.97% to the whole body whereas the Tribunal committed an error taking only 13% disability to the whole body as against the evidence of the doctor. He submits that the claimant was aged about 26 years as on the date of accident and he was inpatient for a period of 15 days. Learned counsel further submits that the Tribunal committed an error in assessing the income of the claimant at Rs.7,000/- p.m., when the claimant states that he was earning Rs.12,000/- p.m., by working as Tiles, Marbles and Granites fitter. Learned counsel also submits that the compensation awarded under various other heads are also on the lower side. Thus, he prays for enhancement of compensation.
8. The accident is of the year 2014. The claimant states that he was earning a sum of Rs.12,000/- p.m. by working as Tiles, Marble and Granite fitter. But he has not produced any material to indicate his exact income. In the absence of proof of income, his income is to be determined notionally. This Court and Lok Adalaths, while settling the accident claims of the year 2014 would normally take notional income at Rs.8,500/- p.m. Even in the present case also, in the absence of proof of income, it would meet the ends of justice to assess the income of the claimant at Rs.8,500/- p.m.
9. P.W.2-doctor in his evidence has deposed that the claimant has suffered 44% disability to a particular limb and 13% disability to whole body. The Tribunal looking to the injuries suffered by the claimant and taking into consideration the evidence of P.W.2 along with medical records has rightly assessed the whole body disability at 13% which needs no interference. Looking to the injuries suffered by the claimant and that he was inpatient for a period of 15 days, the compensation awarded on various heads is on the lower side and the claimant would be entitled for the following modified enhanced compensation:
1.Pain and suffering 2.Medical expenses 3.Loss of income during the treatment period of inpatient and period of treatment 4.Food and nourishment, conveyance, attendant charges and other incidental charges :: Rs. 20,000 5.Furture loss of earning due to disability (8500x12x17x13/100) :: Rs.2,25,420 6.Loss of amenities :: Rs. 30,000 7.Future medical expenses :: Rs. 20,000 Total :: Rs.3,92,420 Thus the claimant would be entitled to total compensation of Rs.3,92,420/- as against Rs.3,26,240/- with interest as awarded by the Tribunal.
10. Accordingly, the appeal is allowed in part. The judgment and award dated 10.08.2015 in MVC No.5002/2014 on the file of the Motor Accident Claims Tribunal, Benglauru is modified and the claimant is entitled to total compensation of Rs.3,92,420/- as against Rs.3,26,240/- with interest as awarded by the Tribunal, thereby the claimant is entitled to enhanced compensation of Rs.66,180/-.
Sd/- JUDGE mpk/-* CT:bms