IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.6399/2015 [MV] BETWEEN:
M KHASIM SAB S/O RAZAK SAB AGED 49 YEARS R/O NO.406 NAGARAGERE VILLAGE GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT.
...APPELLANT (BY SRI. VIJAYA KUMAR T., ADV.) AND:
1. THE ROYAL SUNDARAM ALLIANCE INSURANCE CO LTD., BY ITS MANAGER 132, 2ND FLOOR MANGALAYA PUNARBHAV BRIGADE ROAD BANGALORE-560025.
2. NIRMALA P T W/O LATE CHINNASWAMY AGED MAJOR NO.380, 5TH A CROSS 6TH STAGE, BEML LAYOUT TUBARAHALLI BANGALORE-66.
…RESPONDENTS (BY SRI.RAVI S SAMPRATHI, ADV. FOR R1 SRI. S HEMANTH, ADV. FOR R2) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.07.2015 PASSED IN MVC NO.855/2014 ON THE FILE OF THE 12TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, 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 in appeal, not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 13.07.2015 passed in MVC No.855/2014 on the file of the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by the claimant in a road traffic accident. It is stated that on 07.02.2014 when the claimant was proceeding as a driver in Tata 1109 vehicle bearing registration No.KA-02/AB-3805 from Hindupur towards Peenya via Yelahanka, he had stopped the vehicle opposite to BMS Engineering College to have tea, after having tea, when he was walking on the extreme left side of the road towards his parked vehicle, the driver of Alto Car bearing registration No. KA-53/N-7839 came in a rash and negligent manner and dashed against the parked lorry from behind, where the claimant was standing. Due to the accident, he suffered severe injuries. He was immediately shifted to Sree Saiprasad Multi Speciality Hospital wherein he took treatment as inpatient for 15 days. It is stated that as a driver, he was getting salary of Rs.500/- per day and Rs.100/- per day as bata.
3. On issuance of notice, the respondents appeared through their respective Advocates and filed their independent written statement. Respondent No.1/insurer admitted the issuance of policy, but denied the claim petition averments. It is stated that the accident occurred solely due to the negligence of the claimant. Respondent No.2/owner of the offending vehicle also denied the claim petition averments and further stated that the accident occurred solely due to the negligence of the claimant himself. He also stated that vehicle is insured with the first respondent and insurance policy is in force in respect of that vehicle.
4. The claimant got himself examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents Ex.P1 to Ex.P19. The respondent No.1/ insurer examined R.W.1 and also marked the document Ex.R1.
5. The Tribunal, on appreciating the material on record, awarded total compensation of Rs.8,78,988/-
with interest at the rate of 8% p.a., from the date of petition till realization, on the following heads:
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.7,000/- p.m., and assessed the whole body disability at 15%. 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 parties and perused the material on record.
7. Learned counsel for the appellant would submit that the claimant was working as driver, earning Rs.500/- per day as salary and Rs.100/- per day as bata, which would be more than Rs.18,000/- p.m. But the Tribunal without assigning any reasons has assessed the income of the claimant at Rs.7,000/- p.m., which is on the lower side. Further, he submits that the claimant suffered following injuries:
(i) Fracture of shaft of left femur;
(ii) Fracture of both bones right leg lower 1/3rd ;
(iii) Type 6 Schatzker tibial condyle fracture left leg;
(iv) Fracture of left zygomatic arch; and (v) Left orbital fracture.
Fracture of both bones of right lower leg 1/3rd would affect his avocation as driver. It is submitted that the doctor-P.W.2 in his evidence has assessed the total disability at 69.43% whereas the Tribunal has assessed the whole body disability at 15% which is on the lower side, which needs to be enhanced. Learned counsel also submits that the Tribunal failed to award compensation separately on the head of conveyance, attendant charges, food and nourishment, which the claimant would be entitled apart from the compensation under the head loss of amenities.
8. Per contra, learned counsel for the first respondent/insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. It is his submission that even though P.W.2-doctor has opined that the claimant suffered 69.43% disability, the Tribunal has rightly assessed the disability at 1/3rd of the disability to a particular limb, which is proper and correct. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material placed on record, the only question which falls for consideration is as to – Whether the claimant would be entitled to enhanced compensation in the facts and circumstances of the case?
10. Answer to the above question is in the affirmative for the following reasons:
The accident occurred on 07.02.2014 involving the Alto Car bearing registration No.KA-53-N/7839 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 2014. The claimant states that he was working as a driver earning Rs.500/- per day as salary and Rs.100/- per day as bata, which would come to Rs.18,000/- p.m. But, the claimant has not placed any material on record to indicate his exact income, but he has produced Ex.P7-copy of the driving license to indicate his avocation as driver. In the absence of any material to indicate the income of the claimant, the Tribunal assessed the notional income at Rs.7,000/- p.m., which is on the lower side. This Court and Lok Adalath, while settling the accident claims of the year 2014, would normally assess notional income of Rs.8,500/- p.m. In the present case also, in the absence of any material to indicate the exact income of the claimant, it would be appropriate to assess the notional income at Rs.8,500/- p.m.
11. The claimant has suffered fracture of shaft of left femur, fracture of both bones of right lower leg 1/3, which are major injuries. The claimant has proved that he was working as a driver by producing Ex.P7-copy of the driving license. Fracture of both bones of right leg and fracture of shaft of lower 1/3rd would definitely have a bearing on the avocation of the claimant as driver. The doctor in his evidence has stated that the claimant has suffered 69.43% disability to the limbs, but the Tribunal has assessed the whole body disability at 15%. Normally, the whole body disability would be assessed at 1/3rd of the disability to a particular limb. In the instant case, out of 69.43% disability to a particular limb, 1/3rd of the same would be 23%. Hence, the whole body disability of the claimant including avocational disability is assessed at 23% as against 15% assessed by the Tribunal.
12. The claimant was inpatient for 15 days. Hence, he would be entitled for compensation on the head of conveyance, attendant charges, food and nourishment at Rs.15,000/-. Thus, the claimant would be entitled for the following modified compensation:
Thus, the claimant would be entitled to total compensation of Rs.10,41,168/- with interest at the rate of 8% p.a., from the date of petition till realization. as against Rs.8,78,988/- awarded by the Tribunal.
13. Accordingly, the appeal is allowed in part. The judgment and award dated 13.07.2015 passed in MVC No.855/2014 on the file of the Motor Accident Claims Tribunal, Bangalore is modified to the above extent. The claimant is entitled to enhanced compensation of Rs.162,180/-.
Sd/- JUDGE mpk/-* CT:bms