IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.810 OF 2013 (MV) BETWEEN:
MR. M.R. CHANDRASHEKAR S/O RAJANNA, AGED ABOUT 28 YEARS, R/AT. NO.209, MUGALUR VILLAGE, KUGUR POST, BANGALORE. ... APPELLANT (BY SRI. H. MUJTABA, ADVOCATE) AND:
1. MAHESH KUMAR, S/O NOT KNOWN, AGE MAJOR R/O NO.401, FREESIA ENCLAVE, BELLANDUR ROAD, SARJAPURA OUTER RING ROAD, BANGALORE.
2. MAHESH DAWAR MAJOR, DOOR NO.257/1, ALIMANOR, 8TH ‘H’ CROSS, LAKSHMI ROAD, SHANTHINAGAR, BANGALORE-560027.
3. NATIONAL INSURANCE CO. LTD, MARATHALLI BRANCH OFFICE, NO.86/80, II FLOOR, OLD AIRPORT ROAD, MARATHALLI, BANGALORE-560037.
... RESPONDENTS (BY SRI. ASHOK.N.PATIL, ADVOCATE FOR R3 R1 & R2 - NOTICE DISPENSED WITH V/O DATED 28.7.2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2012 PASSED IN MVC NO.3694/2011 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, 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 28/09/2012 in M.V.C.No.3694/2011 on the file of the Member, PRL. MACT, Bangalore.
2. The claimant 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 occurred on 30-5-2011. It is stated that on 30-5-2011, when the claimant was proceeding in his motorcycle bearing Reg.No.KA-51/H-9719, a Car bearing Reg.No.KA- 04/N-8207 came in a rash and negligent manner and dashed against the motorcycle. As a result, the claimant fell down and sustained grievous injuries. He was taken to Sparsh Hospital, wherein he was treated as inpatient. He was working as silk weaver and earning a monthly income of Rs.25,000/-. He was aged 28 years as on the date of accident.
3. On issuance of notice, respondent No.3-Insurance Company appeared before the Tribunal and filed its statement of objections denying the entire claim petition averments, apart from denying the negligence attributed to the driver of the car and contended that the alleged car is not involved in the accident. Hence, prayed for dismissal of the claim petition.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Ex.P-1 to P-14. Respondent No.3-Insurance Company got marked Insurance Policy as Ex.R-1.
5. The Tribunal on assessment of the entire material on record, awarded a total compensation of Rs.1,24,154/-
with interest at the rate of 6% per annum, on the following
life/future inconvenience Total 1,24,154 While awarding compensation, the Tribunal assessed the notional income of the claimant at Rs.5,000/-. 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 appellant and learned counsel for respondent No.3-Insurance Company. Perused the entire lower court records.
7. Learned counsel for the appellant would submit that the claimant was working as silk weaver and was earning Rs.25,000/- per month, as such, the income assessed by the Tribunal at Rs.5,000/-, is on the lower side. He further submits that the claimant has suffered right distal radius fracture in the accident and took treatment at Sparsh Hospital being inpatient for two days. PW-2-Doctor was examined in support of claimant’s case, who has stated that the claimant has suffered disability to the particular arm to the extent of 37% and to the whole body at 11%. But the Tribunal without there being any reason has not considered the whole body disability for awarding compensation. It is his further submission that the compensation awarded on various heads are also on the lower side when compared to the injuries suffered and treatment taken by the claimant.
8. Per contra, learned counsel for respondent No.3– Insurance Company would submit that the Tribunal has awarded compensation looking to the injuries sustained and treatment taken by the claimant. He further submits that the injury suffered by the claimant would not come in the way of his earning. Therefore, the Tribunal has not assessed the disability for the purpose of awarding compensation. Hence, the compensation awarded by the Tribunal is just and proper, which needs no interference.
9. On hearing learned counsels for the parties and on perusal of the lower court records, the only question which arises for consideration in the facts and circumstances of the case is whether the claimant would be entitled for enhanced compensation. Answer to the said question is in affirmative for the following reasons.
10. The accident involving motorcycle bearing Reg.No.KA-51/H-9719, Car bearing Reg.No.KA-04/N-8207 and the accidental injuries suffered by the claimant is not in dispute in this appeal. The appeal is filed for enhancement of compensation by the claimant. The accident is of the year 2011. The claimant has stated that he was working as silk weaver and was earning Rs.25,000/- per month but in support of his contention, he has not produced any document to indicate his exact income. In the absence of the material to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.5,000/- per month, the same is on the lower side. 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 at Rs.6,500/-. In the present case also in the absence of any document to indicate the exact income of the claimant, I deem it appropriate to take Rs.6,500/- per month as notional income of the claimant for determination of the compensation.
11. It is stated that the claimant was working as silk weaver and he had obtained licence to run weaving business. Due to the accident, the claimant has suffered grievous injuries and right distal radius fracture. PW-2- Doctor in his evidence has stated that the claimant has suffered disability to the particular arm to the extent of 37% and to the whole body at 11%. As the claimant is a weaver, injury to the arm would come in the way of his avocation. Therefore, the Tribunal has committed an error in not assessing the disability and not awarding compensation on disability. Looking to the injury suffered i.e., fracture of right distal radius, the evidence of PW-2- Doctor and the treatment taken by the claimant, I deem it appropriate to assess the total disability at 5% to the whole body. Thus, the claimant would be entitled for compensation on the head of ‘Loss of income due to disability’. Further, the compensation awarded by the Tribunal on the heads of ‘Attendant charges, Conveyance expenses, Loss of income during the period of treatment and Loss of amenities in life/future inconvenience’ are also on the lower side when compared to the injuries suffered and treatment taken by the claimant. Thus, the claimant- appellant would be entitled for modified enhanced
5. Loss of income during the period of treatment (for 3 months @ Rs.6,500/- per month) 19,500 6. Future medical expenses 20,000 7. Loss of amenities in life/future inconvenience 8. Loss of income due to disability (6500x12x17x5/100=66300) 25,000 66,300 Total 2,15,954 12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,15,954/- as against Rs.1,24,154/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
Sd/- JUDGE SMJ/HB