IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.9153 OF 2015 ( MV) BETWEEN:
K.U.SRIDHARA @ SHASHI S/O UMAPATI, AGED ABOUT 39 YEARS R/AT KANIHALLI VILLAGE, BANAVARA HOBLI, ARSIKER TALUK, HASSAN-573112.
(BY SRI.ADITHYA KUMAR H.R., FOR SRI.DAYANAND S.PATIL, ADVOCATES. ) AND 1. KIRANKUMAR S/O NAGARAJA NAIK, AGED ABOUT 27 YEARS, R/AT MURUNDI B-TANDYA VILLAGE, KASABA HOBLI, ARSIKERE TALUK, HASSAN DISTRICT-573112.
(RIDER OF THE AUTO BEARING REG NO.KA-03/8551).
2. JAGADISH S/O RAMJIRAO AGE: MAJOR, R/AT MUDDABANDIHALLI VILLAGE, KASABA HOBLI, ARSIKERE TALUK, HASSAN DISTRICT-573112.
... APPELLANT 3. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LTD. SRI. MANJUNATHESHWARA COMPLEX, BUS STAND ROAD, HASSAN-573201 (POLICY NO.602402/31/11/6700003221, VALID FROM 15-06-2011 TO 14-06-2012).
... RESPONDENTS (BY SMT.H.R. RENUKA, ADVOCATE FOR R3 R1 AND R2 SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:06.04.2015 PASSED IN MVC NO.1607/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, MACT, ARASIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant is before this Court in this appeal under Section 173(1) of the Motor Vehicles Act,1988 not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 06.04.2015 in M.V.C.No.1607/2012 on the file of the Senior Civil Judge and MACT, Arasikere.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in a road traffic accident which occurred on 24.05.2012. It is stated that on 24.05.2012 at about 7.00 p.m., when the claimant was proceeding along with his brother-in-law in motorcycle bearing Reg.No.KA-13-Y-1252, an Auto Rickshaw came from its opposite side in a rash and negligent manner and dashed against the motorcycle. As a result, the claimant fell down and sustained fracture of right ankle and injuries on other parts of the body. It is stated that the claimant was earning Rs.10,000/- per month by agricultural work.
3. On service of notice, respondents appeared before the Tribunal and respondent No.3-Insurance Company filed its objections denying the averments of the petition and contended that auto driver is not responsible for the alleged accident and the rider of the bike caused the accident. It was also contended that the driver of auto rickshaw did not possess the valid and effective driving licence as on the date of accident. The claimant examined himself as PW-1 and also examined CW-1 apart from marking documents Ex.P1 to Ex.P12. Respondent examined RW.1 and marked documents Ex.R1 and Ex.R2.
4. The Tribunal on assessing the material on record awarded total compensation of Rs.1,74,100/- with interest at the rate of 8% p.a., assessing the income of the claimant at Rs.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.
5. Heard learned counsel for the appellant and learned counsel for respondent No.3-Insurance Company. Perused the records.
6. Learned counsel for the appellant would submit that the Tribunal committed an error in assessing the income of the claimant at Rs.6,000/- per month whereas the claimant has stated that he was earning Rs.10,000/-
per month from his agricultural work. It is his submission that the Tribunal ought to have assessed the income of the claimant at Rs.7,000/- per month. Further he submits that the compensation awarded on the head of ‘loss of amenities’ and ‘loss of salary during laid up period’ is on the lower side. Hence, he prays for enhancement of compensation.
7. Per contra, learned counsel for respondent No.3-Insurance Company submits that the quantum of compensation awarded by the Tribunal is just compensation, which requires no interference.
8. On hearing learned counsels and on perusal of the material on record, the only question which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation?
9. The answer to the above question is in the affirmative for the following reasons:-
The accident is of the year 2012. The claimant states that he was earning Rs.10,000/- per month by doing agricultural work but he has not produced any material to indicate the exact income. In the absence of any material to indicate the exact income of the claimant, the income is to be assessed notionally. The Tribunal has assessed notional income of the claimant at Rs.6,000/- per month which is on the lower side. This Court and the Lok Adalath, while settling the accident claims of the year 2012 would normally take the notional income at Rs.7,000/- per month. Thus, in the instant case also, in the absence of any material to indicate the exact income of the claimant, it would be appropriate to take Rs.7,000/- per month as notional income of the claimant. The Tribunal taking into consideration the evidence of CW.1 and medical records assessed the whole body disability at 7% which needs no interference.
10. Learned counsel for the claimant contended that the Doctor opined that claimant has suffered fracture of right ankle and he was inpatient for 5 days. Looking to the injuries suffered by the claimant and as he has taken treatment being inpatient for 5 days, the compensation granted on the head of ‘loss of amenities and ‘loss of income during laid up period’ needs to be enhanced partially. Thus, the claimant would be entitled for modified
11. Thus the claimant would be entitled for a total compensation of Rs.2,30,684/- as against Rs.1,99,084/- awarded by the Tribunal with interest as awarded by the Tribunal. The appeal is allowed in part and the judgment and award passed by the Tribunal is modified to the above extent.
Sd/- JUDGE PYR