IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3025 OF 2013 (MV) BETWEEN SMT. LALITHA W/O LATE SUNDAR AGED ABOUT 63 YEARS R/AT NO.21, C/O M.JOSEPH KUNDAKULUM HOUSE DODDAKANNALLI, SARJAPURA ROAD BENGALURU-560053.
(BY SRI SRIYUTHS M.S. NAGARAJA & SRI H.C. RAMASWAMY, ADVOCATE) ... APPELLANT AND 1. THE MANAGING DIRECTOR B.M.T.C. (ACCIDENT UNIT) K.H.ROAD, SHANTHINAGARA BENGALURU-560027.
2. THE MANAGER M/S UNITED INDIA INSURANCE CO. LTD., NO.40, LAKSHMI COMPLEX K.R.ROAD BENGALURU-560002.
... RESPONDENTS (BY SRI C. SHANKAR REDDY, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.12.2012 PASSED IN MVC NO.6152/2011 ON THE FILE OF THE 11TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, 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 under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 14.12.2012 in M.V.C.No.6152/2011 on the file of the XI Additional Judge, Small Causes Court, Bengaluru, praying for enhancement of compensation.
2. The claimant/injured filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the accidental injuries suffered by him in a road traffic accident. It is stated that on 22.07.2011, when the claimant was proceeding as a passenger in the BMTC bus bearing Reg.No.KA-01-F-1800, while she was alighting the bus, the driver of the bus suddenly moved the bus without giving any signal. Due to the negligent act of the driver of the bus, the claimant lost the control and fell down and she sustained grievous injuries to her right leg, right hip and other parts of the body. Immediately she was shifted to Srinivasa Hospital and she took treatment as an inpatient. It is further stated that the claimant was doing craft work and earning a sum of Rs.5,000/- per month. She was aged 61 years as on the date of accident.
3. On issuance of notice, respondent No.1 remained absent and respondent No.2 appeared before the Tribunal and filed its statement of objections denying the occurrence of the accident due to rash and negligent driving of the Bus by its driver. It is further contended that the accident occurred solely due to the negligence of the claimant herself and also contended that the claim is excessive and exorbitant, but respondent No.2-insurer admitted the issuance of policy.
4. The claimant examined herself as PW-1 and also examined Doctor as PW-2, apart from marking documents Exs.P-1 to P-14 in support of her case. No evidence was led on behalf of the respondent.
5. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.1,74,033/- with interest at the rate of 6% per annum, on the following
While awarding the compensation, the Tribunal assessed the notional income of the claimant at Rs.3,000/- per month and whole body disability at 9%. 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 respondent- insurer, perused the appeal memo and material on record.
7. In the memorandum of appeal the appellant has taken ground that the compensation awarded by the Tribunal is on the lesser side and has sought for the enhancement of compensation. It is stated that the income assessed by the Tribunal at Rs.3,000/- per month is on the lower side. Further stated that the claimant is doing craft work by avocation and was earning Rs.5,000/- per month. Without looking into avocation and earning of the claimant, the Tribunal erroneously assessed the income at Rs.3,000/- per month. Further it is stated that the whole body disability is also taken on the lesser side which requires to be revised, taking into consideration the evidence of PW2-Doctor, who has stated that the claimant suffers from 19% permanent physical impairment. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent– Insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the whole body disability assessed by the Tribunal at 9% is proper and correct, which needs no interference. He further submits that the Doctor has opined that the claimant suffers from 19% whole body disability and taking note of the Doctor evidence and medical records assessed 9%, which requires no interference.
9. On perusal of the material on record, the following points would arise for consideration;
1) Whether the income assessed by the Tribunal at Rs.3,000/- per month of the claimant is proper and correct?
2) Whether the whole body disability assessed by the Tribunal at 9% to the claimant is proper and correct?
3) Whether the claimant would be entitled for the enhanced compensation?
Answer to the point Nos.1 and 2 is in the negative and point No.3 in the affirmative for the following reasons.
10. The accident which had taken place on 22.07.2011 involving BMTC bus bearing Reg.No.KA-01-F-1800 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The appeal is filed for enhancement of compensation by the claimant. The claimant has placed on record Ex.P7 wound certificate and Ex.P8 discharge summary. The Ex.P7 discloses the following injuries sustained by the claimant; 1. Pain, swelling, restricted movement, tenderness, externally rotated, creptins, over right hip. 2. X-ray PBH reveals – Intertrochanteric fracture of right femur with sub trochanteric extension. The claimant was inpatient at Sreenivasa Hospital from 22.07.2011 to 30.07.2011. Ex.P8 discharge summary would establish the same.
11. The claimant states that she was doing craft work and was earning Rs.5,000/- per month. In the claim petition the claimant has stated that her monthly income was Rs.5,000/- per month. The accident is of the year 2011. The income stated by the claimant at Rs.5,000/-
per month could be taken as her income. Moreover, this Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011, more than the income claimed by the claimant. Hence it is appropriate to assess the income of the claimant at Rs.5,000/- per month instead of Rs.3,000/- per month assessed by the Tribunal. PW2-Doctor in his evidence has stated that the claimant suffers 19% whole body disability. Further the Doctor has deposed that the claimant suffers disability to hip 30%, knee 30% and ankle & foot 30%. It means the claimant suffers 30% disability to a particular limb. Normally the whole body disability is assessed at 1/3rd of the disability to a particular limb. In the instance case if the disability to a particular limb is taken as 30%, the claimant would suffer 10% whole body disability. Thus, the whole body disability of the claimant could be assessed at 10% instead of 9% as assessed by the Tribunal. Looking to the injuries sustained and treatment taken, I am of the view that the claimant would be entitled for another Rs.15,000/- under the head of ‘loss of amenities’ and Rs.5,000/- under the head ‘attendant charges, conveyance, nourishment & diet etc.’ The Tribunal has awarded Rs.9,000/- under the head ‘loss of income during treatment period’. As the income of the claimant is reassessed at Rs.6,000/-, the claimant would be entitled to Rs.15,000/- under the head ‘loss of income during treatment period’. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.) 1. Pain and suffering 30,000 2. Loss of income during treatment period 15,000 3. Medical expenses 78,873 4. Loss of future earnings 5,000X12X9X10/100 54,000 5. Loss of amenities 25,000 6. Attendant charges, conveyance, nourishment & diet etc.
10,000 7. Future medication 12,000 Total 2,24,873 12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,24,873/- as against Rs.1,74,033/- awarded by the Tribunal, with interest at the rate of 6% per annum from the date of petition till realization.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
ssb Sd/- JUDGE