IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MFA N0.1898 OF 2015 (MV) BETWEEN I.E REVANNA S/O ERAIAH, AGED ABOUT 55 YEARS, R/AT INDAVARA VILLAGE & POST, CHIKMAGALUR TALUK, CHICKMAGALUR DISTRICT-577101 (BY SRI NINGARAJA M N, ADVOCATE) AND 1. NAYANA H G S/O GOPALA GOWDA, AGED ABOUT 26 YEARS, R/AT HUKKUNDA VILLAGE, INDAVARA POST, CHIKMAGALUR TALUK, CHICKMAGALUR DISTRICT PIN-577101 2. NAVEENA S/O GOPALAGOWDA, AGED ABOUT 26 YEARS, R/AT HUKKUNDA VILLAGE, INDAVARA POST, ...APPELLANT CHIKMAGALUR TALUK CHICKMAGALUR DISTRICT PIN-577101 3. THE BRANCH MANAGER NATIONAL INSURANCE CO LTD YASHORAMA CHEMBERS, R G ROAD, CHIKMAGALUR TOWN, CHICKMAGALUR DSITRICT PIN-577101 …RESPONDENTS (BY SRI S V HEGDE MULKHAND, ADVOCATE FOR R3 NOTICE TO R1 & R2 IS DISPENSED WITH VIDE ORDER DATED 29/03/2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 07.11.2014 PASSED IN MVC No.188/2012 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MACT, CHICKMAGALUR, 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 Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 07.11.2014 in M.V.C.No.188/2012 on the file of I Additional District Judge and MACT at Chikamagaluru.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries suffered in a road traffic accident. It is stated that on 23.11.2011, at about 6.30 p.m., the claimant was proceeding by walk, a motorcycle bearing Reg.No.KA.18-U-4207, came in a rash and negligent manner and dashed to the claimant, due to which the claimant sustained grievous injuries all over his body. Immediately, he was shifted to M.G. Hospital, Chikmagaluru, where he took treatment as inpatient from 23.11.2011 to 16.12.2011. It is stated that he was doing agricultural work and was earning Rs.10,000/- per month, due to the injuries sustained, the claimant not in a position to do the work as he was doing earlier.
3. On service of notice, respondent No.3-Insurer appeared before the Tribunal and filed its statement of objections admitting the issuance of insurance policy to the offending vehicle. It is further contended that the accident occurred due to the negligence on the part of the claimant and the rider of the motorcycle had no valid and effective driving licence as on the date of the accident.
4. The claimant examined himself as PW-1 and also got examined doctor as PW.2, apart from that got marked documents Ex.P-1 to P-15.
5. The Tribunal on appreciating the entire material on record, awarded a total compensation of Rs.80,400/- with interest at the rate of 6% per annum, from the date of petition till realization, on the following heads:
Particulars Amount in Rs. Pain and suffering 25,000=00 Medical expenses, special diet, attendant charges and conveyance Future unhappiness and loss of amenities Loss of income during the laid up period 14,400=00 20,000=00 16,000=00 Future medical expenses 5,000=00 Total 80,400=00 While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.4,000/- per month and assessed the whole body disability at 6%. The claimant being not 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-Insurer. Perused the entire lower court records.
7. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs.4,000/- per month is on the lower side. It is stated that the claimant was doing agricultural work and was earning Rs.10,000/- per month. It is stated that the claimant suffered fracture of shaft of left humerus and tenderness over the right thigh and he took treatment as an inpatient for about 21 days. PW.2-Doctor states that the claimant suffered 19% disability to a particular limb and the Tribunal without assigning any reasons assessed the whole body disability at 6%, which requires to be enhanced. It is further submitted that the Tribunal even though assessed 6% whole body disability and awarded a sum of Rs.20,000/- under the head ‘Future unhappiness and loss of amenities’ without awarding any compensation under the head ‘Loss of income due to disability’ which the claimant would be entitled. It is further stated the compensation awarded under the said head are also on the lower side, which needs for enhanced compensation.
8. Per contra, learned counsel for the respondent No.3-insurer submitted that the compensation awarded by the Tribunal is just compensation, which requires no interference. It is further submitted that the doctor deposed that the claimant suffered 19% disability to a particular limb. The Tribunal taking note of the same has rightly assessed the whole body disability at 1/3rd of the disability to a particular limb, which is proper and correct. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and having perused the material on record, the only point that arise for consideration in this appeal is, whether the claimant would be entitled to the enhanced compensation? Answer to the above point is in the affirmative, for the following reasons:
10. The accident occurred on 23.11.2011, involving a motorcycle bearing Reg.No.KA.18-U-4207 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 that the claimant was doing agricultural work and was earning Rs.10,000/- per month. But he has not placed any material on record to indicate his exact income. But, the notional income assessed by the Tribunal at Rs.4,000/- per month is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would 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 material to indicate the exact income of the claimant, I deem it appropriate to take Rs.6,500/- per month as notional income of the claimant for determination of the compensation.
11. The claimant suffered fracture of shaft of left humerus and tenderness over the right thigh and PW.2-Doctor assessed the disability to a particular limb at 19% and has not assessed whole body disability. To assess the whole body disability normally 1/3rd of the disability to a particular limb could be taken. By taking note of the doctor’s evidence, injuries suffered, disability to a particular limb and treatment taken, the Tribunal has rightly assessed 6% disability, which needs no interference. The Tribunal failed to award compensation under the head ‘Loss of income due to disability’. The claimant who states that he was doing agriculture work and has suffered fracture of shaft of left humerus would definitely suffer inconvenience in his day to day work. Therefore, he would be entitled for compensation under the head of ‘Loss of future income due to disability’.
12. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Particulars Amount in Rs. Pain and suffering 25,000=00 Medical expenses, special diet, attendant charges and conveyance Future unhappiness and loss of amenities Loss of income during the laid up period 14,400=00 20,000=00 26,000=00 Future medical expenses 5,000=00 Loss of income future income due to disability 51,480=00 (6500x12x11x6/100) Total 1,41,880=00 13. Thus, the claimants would be entitled for enhanced modified compensation of Rs.1,41,880/- as against Rs.80,400/- 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.
Lower court records be returned forthwith.
Sd/- JUDGE DL