IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.1867/2015 [MV] BETWEEN:
SMT. INDIRA S S WIFE OF K.G. VENKAPPA AGED 47 YEARS R/A NO.1565 EAST END MAIN ROAD JAYANAGAR BENGALURU-560069.
(BY SRI.MAHENDRA S S, ADV.) AND:
1. SRI. RANGASWAMY K V S/O SRI. VENKATARANGAIAH MAJOR IN AGE RESIDING AT NO.31/10 1ST FLOOR, 12TH MAIN ROAD VIJAYANAGAR BANGALORE-560040.
2. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GROUND FLOOR, N0.31 "TBR TOWER", 1ST CROSS NEW MISSION ROAD ADJACENT TO JAIN COLLEGE & BANGALORE STOCK EXCHANGE ...APPELLANT JC ROAD BANGALORE-560 002.
(BY SRI.B PRADEEP, ADV. FOR R2 R1-NOTICE D/W V/O DT:01.01.2015) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.12.2014 PASSED IN MVC NO.6312/2009 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, 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 The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 02.12.2014 passed in MVC No.6312/2009 on the file of XX Additional Small Causes Judge, Member, MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 18.03.2009 when the claimant was proceeding as a pedestrian in Vijayanagar, at that time a Motor Cycle bearing Reg.No.KA-02-EQ-881 came from back side in a rash, negligent manner and dashed to the claimant, due to the impact she fell down and sustained severe injuries. Immediately she was shifted to Hi-Tech Hospital on Mysore Road, where she was inpatient for 11 days. The claimant was an Advocate by profession, who had put in practice of seven years, earning Rs.25,000/- per month.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments contending that the driver of the Motor Cycle bearing Reg.No.KA-02-EQ-881 was not holding valid and effective driving licence as on the date of accident, but admitted issuance of policy and its validity. It was further stated that there was no negligence on the part of the rider of the motor cycle and accident occurred due to the negligence of the claimant herself. It was also stated that the compensation claimed is exorbitant. The claimant examined herself as PW.1 and also examined PW.2 – the Doctor, apart from marking the documents Exs.P1 to P12. No evidence was led by the respondents. The Tribunal appreciating the material placed on record awarded total compensation of Rs.2,00,000/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
Total Rs.2,00,000/-
While awarding the above compensation the Tribunal assessed the income of the claimant at Rs.10,000/- per month and assessed the whole body disability at 10%. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record, including the certified copy of the material made available during the hearing.
5. The learned counsel for the appellant would submit that the income assessed by the Tribunal at Rs.10,000/- per month is on the lower side. He submits that the claimant was an advocate practicing at Bangalore Bar and she had put in 7 years of practice. She was earning more than Rs.25,000/- per month. It is his submission that taking into account the practice put in by the claimant, the income assessed by the Tribunal is on the lower side. Further he submits that the Tribunal assessed the whole body disability at 10%. PW.2 – the Doctor assessed the whole body disability at 10%, but the Tribunal has not assessed the whole body disability for grant of compensation for loss of future income. It is his submission that the claimant suffered fracture of the DL (T12) Vertebra, Traumatic Spinal Cord Injury – Paraplegia, Spinal Shock Syndrome, Multiple blunt injury over right shoulder and back. She was inpatient for 11 days and as such the compensation awarded on various heads are on the lower side. Further the learned counsel for the appellant submits that the Tribunal has failed to award any compensation on the head of future medical expenses. Thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which needs no interference. He further submits that the claimant has not placed any material to indicate her exact income nor placed any material to establish the cases conducted by her. In the absence of any material the Tribunal has rightly assessed the income of the claimant at Rs.10,000/- pm. Further he submits that the claimant has not suffered any functional disability. Moreover, the Doctor in his cross-examination admitted that there is no difficulty for the claimant in normal movement. As such the Tribunal has rightly not considered the future loss of income. Further he submits that the Doctor has not suggested any future surgery. Hence the Tribunal has not awarded compensation on the head of future medical expenses. Thus prays for dismissal of the appeal.
7. On hearing the learned counsels for the parties and on perusal of the material placed on record including the certified copy of the deposition as well as the documents, the following points arise for consideration in this appeal :-
“a. Whether the income of the claimant assessed at Rs.10,000/- per month by the Tribunal is just and proper ?
b. Whether the Tribunal is justified in not considering the future loss of income ?
c. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
All the above points are answered in the affirmative for the following reasons :
The occurrence of the accident on 18.03.2009 involving Motorcycle bearing Reg.No.KA-02-EQ-881 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that she is an Advocate practicing at Bangalore having put in 7 years of practice. Further it is stated that the claimant was enrolled as an Advocate in the year 2002 and on an average she was earning Rs.25,000/- per month. But the claimant has not placed on record any material to indicate her exact income. In the absence of any material to indicate the claimant’s exact income or material to indicate the claimant’s practice, the Tribunal assessed the income of the claimant at Rs.10,000/- per month on notional basis. In the absence of any material to indicate the exact income of the claimant and in the absence of any material to indicate the volume of practice, the Tribunal is justified in assessing the monthly income at Rs.10,000/-, which needs no interference. The claimant is said to have suffered the injuries stated above. The claimant produced Ex.P6 - the wound certificate and Ex.P.7 - the discharge summary, which indicates that the claimant was inpatient for 11 days for treatment. The claimant in support of her case examined PW.2 - the Doctor, admittedly is not the treated doctor. He has deposed based on the medical records made available before him. The Doctor in his evidence states that the claimant suffers from 10% whole body disability but has not stated the disability suffered by the claimant to particular limb. Further in the cross examination the Doctor states that the deformity of spinal cord is not stated in the discharge summary, but had only noticed the fracture. Further PW.2 – the Doctor admits that there is no difficulty for the claimant for normal movement. PW.2 – the Doctor has not stated how the claimant suffers from functional disability in her avocation. As the Doctor has stated that there is no difficulty for the claimant in her normal movement, the Tribunal taking note of the evidence of the Doctor, medical records and nature of injuries suffered, has rightly refused to grant compensation on the head of loss of future income. Ex.P.6 – the wound certificate, Ex.P7 – discharge summary would indicate that the injuries suffered by the claimant and the treatment taken by her as inpatient for 11 days. Looking to the nature of injuries suffered and the treatment taken as inpatient, the compensation awarded on the head food, nourishment, attendant and transportation at Rs.20,000/- is on the lower side and as such the claimant would be entitled to another Rs.10,000/- on the said head. The Tribunal has awarded Rs.25,000/-
on the head loss of amenities, which is on the lower side. Looking to the nature of injuries suffered and the avocation carried on by the claimant, she would be entitled for another sum of Rs.25,000/- on the head loss of amenities in addition to the compensation awarded by the Tribunal. Thus the claimant would be entitled for enhanced compensation of Rs.35,000/- as stated above.
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.2,35,000/- as against Rs.2,00,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms