IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3584 OF 2015 (MV) BETWEEN:
ISMAIL ZABIULLA KHAN, S/O ABDUL WAHAB KHAN, AGED ABOUT 46 YEARS, R/AT. PLAT NO.41, 17TH CROSS, 22ND MAIN, OPP. MASJID E NOOR, SMS LAYOUT, JP NAGAR, 5TH PHASE, BENGALURU-560 078.
(BY SRI.H.V. BHANU PRAKASH, ADVOCATE) AND:
1. BASAVARAJ LAXMAPPA MULGUND NO.161/B1, ANUR BESALAHALLI ... APPELLANT BYADAGI TALUK, HAVERI DISTRICT-581 106 2. THE MANAGER, M/S. SHRIRAM GENERAL INSURANCE COMPANY LIMITED NO.12, S & S CORNER BUILDING, HOSPITAL ROAD NEAR BOWRING HOSPITAL SHIVAJINAGARA BENGALURU-560 001.
…RESPONDENTS (BY SRI. O.MAHESH, ADVOCATE FOR R2;
R1 – NOTICE D/W V/O DATED 18.07.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 19.09.2014 PASSED IN MVC.NO.1930/2013 ON THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BENGALURU, 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 not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 19.09.2014 passed in MVC No.1930/2013 on the file of the MACT, Court of Small Causes, Bengaluru.
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 15.02.2013, when the claimant was walking near J.P. Nagar, 21st Cross, driver of the car bearing registration No.KA-27-A-5652 came in a high speed and in a rash and negligent manner and dashed against the claimant. As a result, the claimant sustained injuries and took treatment. It is stated that he was aged about 44 years and was working in a private Bank and was earning `14,500/- per month.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their respective written statement, wherein they have denied the occurrence of the accident. Further, they have stated that the accident occurred solely due to the negligence of the claimant himself. Insurer has also contended that the driver of the offending vehicle had no valid and effective Driving Licence as on the date of the accident. However, they have admitted the issuance of the Insurance Policy.
4. The claimant examined himself as PW-1 and also examined the Doctor as PW-2, apart from marking documents Exs.P-1 to P-13. The respondent- Insurer examined RW-1 and RW-2, apart from marking documents Exs.R-1 to R-9.
5. The Tribunal on appreciating the materials available on record, awarded total compensation of `3,38,800/- along with 6% interest from the date of
While awarding the above compensation, the Tribunal assessed the notional income of the claimant at `6,000/- per month. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal, is before this Court in this appeal.
6. Heard the learned counsel for the parties and perused the materials available on record.
7. Learned counsel for the claimant would submit that the quantum of compensation awarded by the Tribunal, is on the lower side. Further, he submits that the income of the claimant assessed at `6,000/- per month, is on the lower side. The claimant was working as an employee in a private Bank and was earning `14,500/- per month and the claimant has produced the salary slips at Ex.P-11, to establish his income. But, the Tribunal has erroneously rejected the same and has assessed the income of the claimant at `6,000/- per month, which is on the lower side. Further, it is his submission that the Tribunal assessed the whole body disability at 10% even though the Doctor has opined 37.3% permanent disability to the lower limb and 12.6% disability for the whole body. But, the Tribunal without giving any reasons, has assessed the whole body disability at 10%, which needs to be enhanced. It is further submitted that the compensation awarded by the Tribunal, is on the lower side and seeks for enhancement of the compensation.
8. Per contra, learned counsel for the respondent-Insurer would submit that the quantum of compensation awarded by the Tribunal, is just compensation, which needs no interference. He further submits that the claimant has not established how the injury would come in the way of his functioning as a Bank employee and as such, he would not be entitled for compensation under the head “Loss of future income due to disability”.
9. Having heard the learned counsel for both the parties and on perusal of material on record, the only point which falls for consideration is as to whether the claimant would be entitled for enhancement of the compensation awarded by the Tribunal. Answer to the above point is in the affirmative for the following reasons.
10. The accident occurred on 15.02.2013 involving car bearing registration No.KA-27-A-5652 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is before this Court praying for enhancement of the compensation awarded by the Tribunal. The claimant states that he was working as an employee in a private Bank and was earning `14,500/- per month.
Ex.P-11 is the pay slips. But, in support of Ex.P-11, the claimant has not examined any person from the Bank, where he was working. He has also not placed any material on record to establish that he was working as an employee in a private Bank. Ex.P-11 is not proved in accordance with law. In the absence of any proof for his employment and proof of his income, the Tribunal assessed the notional income at `6,000/- per month, which is on the lower side. This Court and the Lok Adalat while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2013 at `8,000/- per month. In the instant case, in the absence of any material to indicate the exact income, it would be appropriate to assess the notional income of the claimant at `8,000/- per month.
11. The claimant has placed on record Ex.P-6, wound certificate and Ex.P-7 discharge summary, which would indicate the injuries sustained by the claimant and treatment taken as inpatient. The claimant has suffered fracture trimalleolar of right ankle and 1st metatarsal fracture compression.
12. PW-2- Doctor in his evidence, has stated that the claimant has suffered from permanent disability at 37.3% to the lower limb and whole body disability at 12.6%. Normally, whole body disability would be assessed at 1/3rd of the disability to a particular limb. The Tribunal, looking into the evidence of Doctor and nature of injuries suffered by the claimant and medical records, has rightly assessed the whole body disability at 10%, which needs no interference. The claimant was inpatient from 15.02.2013 to 21.03.2013. Looking to the injuries suffered and treatment taken, the compensation awarded by the Tribunal under the head “Pain and Suffering”, “Loss of amenities and Happiness”, “Medical and incidental charges” and “Future medical expenses” are proper and correct. But, the Tribunal failed to award any compensation under the head “Conveyance, Food and Nourishment”, which the claimant would be entitled at `10,000/-.
Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
13. Thus, the claimant would be entitled for enhanced modified compensation of `3,88,400/- as against `3,38,800/- 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 Mds/-