IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.9246 OF 2012 (MV) BETWEEN:
Madanna, S/o Late Puttaswamappa, Age 57 years, R/o.Navilur Village, Kasaba Hobli, Nanjanagud Taluk-571 301. .. Appellant ( By Smt.B.N.Manjula, Advocate ) AND:
1. Jaiman Jaqob, S/o.Jaquo, age 32 years, R/o.Namathhill House, Velliyambamma Post, Pullapalli, Vainadu, Kerala-673 003.
2. Mr.Justin N., S/o Nagan, age 47 years, Just in Kareempail, Kavoor, Eringadanpalli Road, Chevaur Post, Culicut-17.
3. Oriental Insurance Co. Ltd., Pramod Building, Chirothi Road, Culicut, Kerala-673 003, Rep.by its Branch Manager.
4. M.Shankar S/o Nanjegowda, Age 30 years, House No.19/2, Halahundi Village, Gundlpet Tq, Chamarajanagar District. 571111.
5. Royal Sundram Alliance Insurance Co. Ltd., “Sundarm Towers”
45 & 46, White Road, Chennai-600 014. .. Respondents ( By Sri C.R.Ravishankar, Advocate For R-3, Notice to Respondent Nos.1, 2, 4 & 5 dispensed with Vide order dated 25.10.2017) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:02.05.2012 passed in MVC No.77/2010, on the file of the Senior Civil Judge, MACT, Nanjangud, 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 This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned Senior Civil Judge & MACT, Nanjangud, (hereinafter for brevity referred to as ‘Tribunal’), by judgment and award dated 2.5.2012, passed in MVC No.77/2010.
2. The summary of the case of the claimant in the Tribunal is that on 24.6.2009, the claimant along with one Nanjundappa, while they were returning to their village in a motor vehicle i.e., TATA ACE, bearing registration No.KA-10-3918, at about 12.30 p.m., near Hosahalli Gate on Nanjangud – Gundlupet main road, due to dashing of a motorcar bearing registration No.KL- 11-AA-6030, met with a road traffic accident. The said accident occurred due to the rash and negligent driving of the driver of the car, as well, there was negligence on the part of the driver of the TATA ACE motor vehicle in which they were travelling. Holding the owner and insurer of both the vehicles as jointly and severally liable to pay the compensation, the claimant has filed the claim petition seeking for a compensation of a sum of `16,75,000/-.
3. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
Amount (`) Injuries, pain and sufferings 10,000-00 Loss of income 2,300-00 Medical expenses 18,000-00 Towards food, further treatment, medical attendant, conveyance, loss of daily income 6,000-00 Physical disability 59,400-00 Total 95,700-00 4. The Tribunal awarded compensation of a sum of `95,700/- with interest at 6% per annum thereupon, holding the respondent No.3-Insurance Company as liable to pay the said compensation. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
5. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
6. Heard the arguments from both sides and perused the materials placed before this court.
7. Learned counsel for the appellant/claimant in her arguments vehemently submitted that when admittedly both the bones of right leg of the injured has been crushed into, the Tribunal has erred in awarding a meager compensation of a sum of `10,000/- towards `pain and agony’. She also submitted that the percentage of disability, as well the notional income fixed, are on the lower side. Further stating that no compensation has been awarded towards `loss of amenities’, she prayed for allowing the appeal.
8. Learned counsel for the respondent-Insurance Company in his arguments submitted that there are no materials to show that there was any alleged crush injury to both the bones of right leg, however, it was a simple fracture of both the bones of right lower limb. He also submitted that the percentage of disability considered by the Tribunal is reasonable and does not warrant any increase in it. He also stated that the compensation awarded by the Tribunal on all the heads are just and reasonable which does not warrant any interference at the hands of this Court.
9. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
10. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
11. A perusal of the materials placed before this Court would go to show that the claimant has sustained fracture of both the bones of his right leg in the accident. In that regard, he has produced the wound certificate and the hospital records. He was admitted in the hospital as an inpatient and was under treatment in the hospital. The doctor has opined that he was required to take two months bed-rest. In such a situation, the compensation awarded at `10,000/- towards `pain and agony’ by the Tribunal appears to be on the lower side, as such, it deserves an enhancement by a sum of `10,000/-.
12. The claimant has stated that he was an agriculturist as at the time of the accident and could not pursue his avocation due to the injuries sustained by him in the accident. In that regard, he has also examined a doctor, who has opined that the claimant has sustained permanent partial disability of 46% to the particular limb and when confined to the whole body, it comes to 19%. The Tribunal giving reasons has confined the said percentage of disability to the whole body at 15%. I do not find any reason to interfere in it.
However, the notional income taken by the Tribunal, which is at `3,000/- per month, is on the lower side. The co-ordinate Benches of this Court have been taking the notional income of a person at `5,000/- for the relevant year 2009, in which year, the accident in question has occurred. As such, when the notional income of the injured is taken at `5,000/- per month, the compensation towards `loss of income due to permanent disability’, would come at `5,000/- x 12 x 15 x 11 (multiplier) /100 =`99,000/-. After deducting a sum of `59,400/- awarded by the Tribunal, for the difference amount of `39,600/-, the claimant is entitled to as an enhancement.
13. The Tribunal has awarded compensation of a sum of `2,300/- towards `loss of income during laid up period’. Since the Tribunal itself has observed that the claimant was advised two months bed-rest, then, by taking the notional income, for the difference amount for loss of income which is at `10,000/- - `2,300/- = `7,700/-, the claimant is entitled to.
14. The Tribunal has not awarded any compensation towards `loss of amenities’. The claimant has stated that due to the injuries suffered by him, he is deprived of the pleasure in life and is suffering the disability. In such a situation, towards `loss of amenities’, I propose to award a sum of `10,000/-.
15. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for enhancement of compensation in a sum of `67,300/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 02.05.2012, passed by the learned Senior Civil Judge & MACT, Nanjangud, in MVC.No.77/2010, is modified to the extent that the compensation awarded at `95,700/- is enhanced by a sum of `67,300/-, thus fixing the total compensation at `1,63,000/- (Rupees One lakh sixtythree thousand only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 3rd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered. The 3rd respondent-Insurance Company shall deposit the enhanced compensation amount within four weeks from today.
Draw modified award accordingly.
The learned counsel for the respondent No.3- Insurance Company Sri C.R.Ravishankar is permitted to file vakalath in the Registry within two weeks from today.
Sd/- JUDGE bk/