IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.8724 OF 2015 (MV) BETWEEN:
JAYANTH NAIK AGED ABOUT 24 YEARS, S/O LACHAMAYYA NAIK, R/O ALIVEKODI, SHIRUR POST & VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT (BY SMT. AKSHITA D JAIN, ADVOCATE) AND:
1. K ABDUL REHAMAN, S/O AHAMMED BAVA, R/O JUBEDHA MANZIL, NAGOOR, KIRIMANJESHWARA, KUNDAPURA TALUK, UDUPI DISTRICT – 576 201.
2. NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE, SHANKAR BUILDING, MASJID ROAD, UDUPI – 576 101, ... APPELLANT REPRESENTED BY ITS DIVISIONAL MANAGER.
3. ANJUMAN GIRLS HIGH SCHOOL, MAIN ROAD, BHATKAL – 581 320, REPRESENTED BY ITS HEAD MISTRESS.
4. THE NEW INDIA ASSURANCE CO. LTD., PUSHPA BUILDING, MAIN ROAD, KUNDAPURA – 576 201. REPRESENTED BY ITS BRANCH MANAGER.
... RESPONDENTS (BY SRI K.N.SRINIVAS, ADVOCATE FOR R4; SRI.M.S.SRIRAM, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.07.2015 PASSED IN MVC NO.1055/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, KUNDAPURA, 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, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 21/7/2015 in M.V.C.No.1055/2013 on the file of the Senior Civil Judge and Member, Additional MACT, Kundapura.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 17-9-2013, when the claimant was walking on the left side mud portion of the NH-17, Lorry bearing Reg.No.KA-20-B-7679, driven by its driver in a high speed with rash and negligent manner lost control over the vehicle and dashed to the school tempo bus bearing Reg.No.KA-30-4596 to its back side and due to the said impact, the driver of the School Bus lost control and dashed to the claimant who was walking on the left side of the road. As a result, the claimant sustained grievous injuries. Immediately, the claimant was shifted to Chinmayi Hospital, Kundapura, where he took treatment as inpatient from 17-9-2013 to 28-9-2013. The claimant sustained fracture of right foot bone, for which, he underwent surgery. It is stated that the claimant was aged 22 years as on the date of accident and was working as a coolie, earning Rs.12,000/- per month.
3. On issuance of notice, insurers of both the Lorry bearing Reg.No.KA-20-B-7679 as well as School Bus bearing Reg.No.KA-30-4596 appeared before the Tribunal and filed their written statement. Respondent Nos.1 & 3 remained absent. Respondent No.2-insurer in its objection statement denied the claim petition averments and particularly denied the occurrence of accident due to rash and negligent driving of the driver of Lorry bearing Reg.No.KA-20-B-7679. It is stated that the driver of the School Bus suddenly stopped the same without any signal, therefore the lorry driver took the vehicle to his left side to avoid major accident. Hence, the accident occurred solely due to the negligence of the driver of School Bus. It is further stated that the driver of the lorry was not holding a valid and effective driving licence as on the date of accident. Respondent No.4-insurer admitted the issuance of policy in respect of School Bus and further stated that the liability is subject to terms and conditions of the policy. Further, denied the occurrence of accident due to rash and negligent driving of the driver of School Bus bearing Reg.No.KA-30-4596. It is contended that the accident had occurred solely due to the negligence of the lorry driver. It is also stated that the driver of the School Bus was not holding a valid and effective driving licence as on the date of accident. Thus, prayed to dismiss the claim petition.
4. The claimant examined himself as PW-2 and Doctor as PW-3, apart from marking common documents Exs.P-1 to P-18 in MVC.Nos.1054/2013 & 1055/2013. Respondents examined RWs-1 & 2 and got marked documents Exs.R-1 to R-5.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.1,74,210/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and sufferings 35,000 2. Medical expenses 20,490 3. Loss of earning during the laid up period 4. Loss of future earning capacity 18,000 90,720 5. Loss of amenities 10,000 Total 1,74,210 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-claimant and learned counsel for the respondents-Insurers. Perused the material on record.
7. Learned counsel for the appellant would submit that the claimant was working as coolie and was earning Rs.12,000/- per month, whereas the Tribunal assessed the income of the claimant at Rs.6,000/- per month, which is on the lower side. He further submits that the claimant was an inpatient for five days to take treatment for the accidental injuries suffered by him. Even though the Doctor has opined that the claimant suffers from 10% disability to his right lower limb, the Tribunal assessed the whole body disability at 7% against the evidence of PW-3- Doctor. Further learned counsel submits that the claimant sustained fracture of 5th metatarsal, for which he has undergone surgery. Further, it is contended that the quantum of compensation awarded is on the lower side, when compared to the injuries suffered and treatment taken by the claimant as inpatient. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsels for the respondents- insurers would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Further, they submit that the whole body disability assessed by the Tribunal is on the higher side, whereas the Doctor-PW-3 stated that the claimant suffers from 10% disability to his right lower limb and the Tribunal assessed the whole body disability at 7%, which is on the higher side. Always, the whole body disability is to be assessed at 1/3rd of the disability to a particular limb. Thus, he prays for dismissal of the appeal.
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 partly in affirmative for the following reasons.
10. The accident taken place on 17-9-2013 involving Lorry bearing Reg.No.KA-20-B-7679, School Bus bearing Reg.No.KA-30-4596 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 accident is of the year 2013. It is stated that the claimant was working as coolie and was earning Rs.12,000/- per month. But no material/document is placed on record to establish the exact income earned by the claimant. In the absence of any material to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.6,000/- per month, the same is on the lower side. This Court and the Lok Adalath while settling the accident claims of the year 2013, would normally assess the notional income at Rs.8,000/- per month, wherever there is no material to establish the exact income. In the instant case also in the absence of any document/material to indicate the exact income of the claimant, it would be appropriate to assess Rs.8,000/- per month as notional income of the claimant for determination of the compensation.
11. The claimant examined PW-3-Doctor in support of his case. The Doctor, in his evidence stated that the claimant suffers from 10% disability to his right lower limb. But the Tribunal assessed the whole body disability at 7%. Looking to the injuries suffered, treatment taken by the claimant as inpatient and evidence of PW-3-Doctor, I am of the view that the whole body disability assessed by the Tribunal is proper and correct, which needs no interference. The Tribunal, looking to the treatment taken by the claimant as inpatient for five days and taking note of Ex.P11-medical bills, Ex.P12-medical prescriptions, awarded compensation of Rs.20,490/- including compensation twoards Food and nourishment, conveyance and attendant charges, which is proper and correct. Further, the compensation of Rs.10,000/- awarded on the head of ‘Loss of amenities’ is on the lower side, when compared to the injury i.e., fracture of 5th metatarsal sustained by the claimant. Hence, the claimant would be entitled for another Rs.10,000/- on the said head in addition to Rs.10,000/- awarded by the Tribunal. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.) 1. Pain and sufferings 35,000 2. Medical expenses 20,490
12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,20,450/- as against Rs.1,74,210/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit of the compensation amount would be as ordered 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