IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.10846/2013 [MV] BETWEEN:
KASTURI S R S/O RANGANATHAIAH AGED ABOUT 37 YEARS AGRICULTURIST R/O S K GAJENDRASWAMY S/O KRISHNAMURTHY II CROSS, MEDARAKERI VINOBANAGARA SHIMOGA CITY, PIN -577 201.
... APPELLANT (BY SRI.ADITHYA KUMAR H.R., ADV. FOR SRI. RAVINDRANATH M, ADV.) AND:
1. S R GIRESH AGE: MAJOR OWNER OF MADURI MOTORS R/O SHIVANGA VILLAGE HOLALKERE TALUK CHITRADURGA DISTRICT- 577 501.
2. ISMAILE S/O IBRAHIM SAB AGED ABOUT 42 YEARS DRIVER OF MADURI BUS KA-16-B-711 R/O BEHIND MASJID NEAR RAILWAY STATION CHITRADURGA 577 501.
3. THE UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD., REGISTERED OFFICE 201/208 II FLOOR OPPOSITE INFINITY MAHAL LIND ROAD, ANDHERI MUMBAI- 400 058 REP. BY BRANCH MANAGER.
... RESPONDENTS (BY SRI. KESHAVA PRASHANTH, ADV. FOR R3 R2-NOTICE D/W V/O DT:30.06.2016 R1-SERVED & UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 17.07.2013 PASSED IN MVC NO.803/2011 ON THE FILE OF THE PRINCIPAL, SENIOR CIVIL JUDGE AND AMACT, SHIMOGA, 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 claimant is before this Court, praying for enhancement of compensation awarded under the judgment and award dated 17.07.2013 in MVC No.803/2011 on the file of the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Shimoga (hereinafter referred to as 'the Tribunal' for short).
2. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries suffered in a road traffic accident which occurred on 04.04.2011. It is stated that on 04.04.2011 when the claimant was waiting for the bus along with his relatives and when he was about to board the bus, the driver of the bus bearing registration No.KA-16/A-711 suddenly moved the bus. As a result, he fell down and sustained grievous injuries. Immediately, he was shifted to Mc.Gann Hospital at Shimoga and subsequently, to Wenlock hospital at Mangalore wherein he was treated as inpatient for a period of 41 days. He submits that he was working as an agricultural coolie and was earning more than Rs.200/- per day. He was aged about 32 years as on the date of accident.
3. The third respondent/Insurance Company appeared before the Tribunal and filed its written statement denying the claim petition averments. Further it was contended that the driver of the offending bus did not possess the valid and effective driving license and the bus was not possessed with the route permit.
4. The claimant got himself examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P38. On behalf of respondent No.3, the Branch Manager was examined as R.W.1 and also examined one more witness as R.W.2 and got marked the documents as Ex.R1 to Ex.R6 as also Ex.C1 and Ex.C2.
5. The Tribunal, on analyzing the material on record awarded total compensation of Rs.1,93,234/- taking into consideration the income of the claimant at Rs.150/- per day and considering the whole body disability at 8%. The claimant, being not satisfied with the quantum of compensation is before this Court in this appeal, seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and perused the lower court records.
7. Learned counsel for the appellant would submit that the income assessed by the Tribunal at Rs.150/- per day is on the lower side. He submits that minimum of Rs.6,500/- p.m. ought to have been taken taking into consideration the avocation of the claimant that he was an agricultural coolie and earning of Rs.200/- per day.
Further he submits that the compensation awarded under the head pain and suffering and other heads are on the lower side, when looked into the injuries suffered by the claimant. He submits that the claimant suffered fracture of left tibia and medial malleous. Thus, prays for enhancement of compensation.
8. The accident is of the year 2011. The claimant states that by doing agricultural work he was earning more than Rs.200/- per day. The Tribunal has taken the income of the claimant at Rs.150/- per day. The income assessed by the Tribunal is very meager. This Court and Lok Adalaths, while settling the accident claims of the year 2011 would normally take notional income of Rs.6,500/- p.m. In the instant case also, in the absence of material to indicate the exact income of the appellant, the notional income of the claimant could be taken at Rs.6,500/- p.m.
9. The claimant has suffered the following injuries:
1.Left leg abrasion present.
2.Right leg abrasion present and fracture of left tibia and medial malleous fracture.
10. The doctor looking into the medical records, in his evidence has opined that the claimant has suffered 8% whole body disability. The Tribunal has taken whole body disability at 8%, which needs no interference. Taking into consideration the nature of injuries and as the claimant was inpatient for a period of 41 days, the claimant would be entitled for another sum of Rs.10,000/- in addition to Rs.25,000/- awarded by the Tribunal towards pain and suffering. Further, the Tribunal has not awarded any compensation under the head conveyance, nourishment etc., which the claimant would be entitled to at Rs.20,000/-. The claimant has produced Ex.P6/discharge summary which shows that he was inpatient for a period of 41 days at Government Wenlock District hospital at Mangalore. Thus, the claimant would be entitled for the following modified compensation:
1.Loss of future earning capacity
5.Loss of amenities and future unhappiness :: Rs. 40,000.00 6.Conveyance, attendant charges Nourishment, etc. :: Rs. 20,000.00 Total :: Rs. 2,59,504.00 Thus the claimant would be entitled to modified compensation of Rs.2,59,504/- as against Rs.1,93,234/- with interest as awarded by the Tribunal.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 17.07.2013 passed in MVC No.803/2011 on the file of the Principal Senior Civil Judge and Additional MACT, Shimoga is modified. The claimant is entitled to compensation of Rs.2,59,504/- as against Rs.193,234/- with interest as awarded by the Tribunal, thereby the claimant is entitled to enhanced compensation of Rs.66,270/-.
Sd/- JUDGE mpk/-* CT:bms