IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2148 OF 2015 (MV) BETWEEN:
KUSUMA, D/O. NARAYANA @ NARAYANAGOWDA, AGED ABOUT 28 YEARS, KYAMANAHALLI VILLAGE, HANUBALU HOBLI, SAKALESHPUR TALUK-573134.
(BY SRI. JAGADEESH.H.T, ADVOCATE) AND:
1. HARIPRASAD C.B. S/O BARAVEGOWDA, HANUBALU VILLAGE AND POST, SAKALESPUR TALUK-573134.
2. THE MANAGER, (CLAIMS) ... APPELLANT UNIVERSAL SOMPO GENERAL INSURANCE, COMPANY LTD., K.L.S. TOWER, PLOT NO.EL-94, MIDC, MAHAPE, NAVI MUMBAI, MAHARASTRA-400710.
... RESPONDENTS (BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 04/7/2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.04.2014 PASSED IN MVC NO.1929/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT, AT SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 28/04/2014 in M.V.C.No.1929/2011 on the file of the Senior Civil Judge and MACT, Sakaleshpur.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by her in a road traffic accident. It is stated that on 24-2-2011, when the claimant was proceeding on bike bearing No.KA-46-E- 8984, Eicher Canter Lorry bearing No.KA-46-2610 driven by its driver came in a rash and negligent manner from the opposite direction and dashed against the claimant’s bike.
As a result, the claimant fell down and sustained grievous injuries. Immediately, she was shifted to Crawford Hospital, Sakaleshpur and then to District Hospital, Hassan. Further, the claimant was referred to Fr. Muller Hospital, Mangalore, where she took treatment as inpatient for 18 days. It is stated that the claimant was working as coolie in coffee plantation and also she was doing milk vending business, earning Rs.8,000/- per month.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal but only respondent No.2- insurer filed its statement of objections denying the claim petition averments and further contended that the driver of the offending lorry was not holding a valid and effective driving license as on the date of accident. It is also stated that the accident had occurred solely due to the rash and negligent driving of the claimant herself. It also pleaded the contributory negligence. Further it is also contended that there is an inordinate delay in lodging the FIR.
4. The claimant examined herself as PW-1 and Doctor as PW-2, apart from marking documents Ex.P-1 to P-47. No evidence was lead and no documents were marked on behalf of the respondents.
5. The Tribunal on appreciating the material placed before it, awarded total compensation of Rs.1,34,458/- with interest at the rate of 6% per annum from the date of petition till realization, on the following heads:
Amount in (Rs.)
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.3,750/- and assessed whole body disability at 10%. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurance Company. Perused the material placed on record.
7. Learned counsel for the appellant would submit that the claimant was working as coolie in coffee plantation and also she was doing milk vending business and was earning Rs.8,000/- per month. Looking to the nature of work carried on by the claimant, the income assessed by the Tribunal at Rs.3,750/- per month, is on the lower side. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2– Insurance Company would submit that the compensation awarded by the Tribunal is just and proper, which needs no interference.
9. On hearing the learned counsels for the parties and on perusal of the material placed on record, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation. Answer to the said point is in partly affirmative for the following reasons.
10. The accident occurred on 24-2-2011, involving bike bearing No.KA-46-E-8984, Eicher Canter Lorry bearing No.KA-46-2610 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is in appeal seeking enhancement of compensation. The accident is of the year 2011. The claimant states that she was working as coolie in coffee plantation and also she was doing milk vending business and was earning Rs.8,000/- per month, but in support of her contention, she has not produced any material/document to indicate her exact income. In the absence of the material to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.3,750/- per month, the same is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011 at Rs.6,500/- per month. In the present case also in the absence of any document to indicate the exact income of the claimant and taking note that these days, even a coolie would earn Rs.200/- per day and looking to the nature of work carried on by the claimant and the statement that she was also doing milk vending business, her income could be assessed notionally at Rs.6,500/- per month for determination of the compensation.
11. It is stated that the claimant has suffered the following injuries:
1) Laceration wound over fore head and face 2) Fracture of right shoulder scapula 3) Fracture of left leg bone 4) Pain over neck The claimant was inpatient for 18 days at Fr. Muller Hospital, Mangalore. Looking to the nature of injuries suffered, treatment taken by the claimant and evidence of PW-2-Doctor, the claimant would be entitled for another Rs.10,000/- on the head of ‘Attendant charges and diet’. The Tribunal has failed to award any compensation on the head of ‘Loss of amenities’ for which the claimant would be entitled for Rs.20,000/-. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
1. Loss of income due to Amount in (Rs.) 1,40,400
12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,23,858/- as against Rs.1,34,458/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ