IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G. PANDIT MISCELLANEOUS FIRST APPEAL NO.1956 OF 2013 (MV) BETWEEN:
MEENAKSHI JAIN @ MEENAKSHI, W/O SUNIL KUMAR JAIN, AGED ABOUT 34 YEARS, NO.33, 4TH CROSS, NEAR TULASI WOOD WORK, RAJEEV GANDHINAGAR, LAGGERE, BANGALORE-560058. ...APPELLANT (BY SRI D S SRIDHAR, ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO. LTD., T B HUB, 6TH FLOOR, KRISHI BHAVAN, HUDSON CIRCLE, BANGALORE-1 BY ITS MANAGER.
2. B M T C, K H ROAD BANGALORE-27. …RESPONDENTS (BY SRI MOHAN KUMAR T, ADVOCATE FOR R1, R2 – NOTICE DISPENSED WITH VIDE ORDER DATED: 30.07.2015) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2012 PASSED IN MVC NO.4585/2011 ON THE FILE OF VII ADDITIONAL, SMALL CAUSES JUDGE, MEMBER MACT-3 BANGALORE. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT The claimant is in appeal before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 05.12.2012 passed in M.V.C. No.4585/2011 by the VII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal-3, Bangalore.
02. The claim petition was filed under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘Act’ for short), claiming compensation for the injuries suffered by the claimant in a road traffic accident. It is stated that, on 10.07.2011 when the claimant was proceeding in a TVS moped bearing registration No.KA-
09-EA-3821 as a pillion rider on Magadi road, a BMTC Bus bearing registration No.KA-01-FA-1457 dashed to the TVS moped. Due to which, the claimant sustained fracture injuries and she was immediately shifted to Gayathri Hospital, where she took treatment as an inpatient for 10 days. Further, it is stated that the claimant was working as a Hindi Teacher at Christ Krupanidhi Public School drawing a salary of Rs.6,000/- per month and she could not attend to her work for nearly ten months.
03. On issuance of notice, respondent No.1 – Insurance Company appeared before the Tribunal and filed written statement denying the claim petition averments, but admitted the issuance of the Policy in respect of the BMTC bus. It is also stated that, the claim made by the claimant is excessive and exorbitant.
04. The claimant examined herself as PW1 and also examined PW2 and PW3 – Doctors, in support of her case, apart from marking Exhibits-P1 to P96.
05. The Tribunal on appreciating the materials available on record, awarded a total compensation of Rs.2,45,000/- with interest at the rate of 6% per annum 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.6,000/- per month and also assessed the whole body disability at 10%. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal, is before this Court in this appeal, praying for enhancement of compensation.
06. Heard the learned counsel for the parties and perused the materials on record.
07. The learned counsel for the claimant/ appellant submits that the claimant suffered fracture of left Tibia and she took treatment as inpatient for 10 days. She could not attend for her work for nearly ten months. She was working as Hindi Teacher at Christ Krupanidhi Public School drawing a salary of Rs.6,000/- per month. She suffered loss of income during the laid up period. She was not granted leave by the School and she was aged about 32 years as on the date of the accident. The learned counsel for the appellant further submits that the Doctors – PW2 and PW3 opined that the claimant suffered 48% disability to a particular limb and 24% disability to the whole body. But, the Tribunal assessed the whole body disability at 10%, which needs to be revised. It is further submitted that the compensation awarded on the other heads are on the lower side and prays for enhancement of compensation. It is further submitted that the claimant was aged about 32 years and the proper multiplier would be 16, but the Tribunal has taken the multiplier of 15, which is wholly erroneous. Thus, prays for enhancement of the compensation.
08. Per contra, learned counsel for the respondent – Insurer submits that, the compensation awarded by the Tribunal is just compensation and there is no need to interfere with the judgment and award passed by the Tribunal. He further submits that, the whole body disability assessed by the Tribunal at 10% is proper and correct, which needs no interference.
09. Having heard the learned counsel for the parties and on perusal of the materials on record, the following points would arise for consideration in this appeal:
i. Whether the assessment of whole body disability at 10% by the Tribunal is justified?
ii. Whether the appellant/claimant would be entitled for enhanced compensation?
The answer to the above points is in the negative and affirmative respectively for the following reasons.
10. The accident occurred on 10.07.2011 involving TVS moped bearing registration No.KA-02-EA- 3821 and the BMTC bus bearing registration No.KA-01- FA-1457 and the accidental injuries suffered by the claimant, are not in dispute in this appeal. The claimant/appellant has preferred this appeal for enhancement of compensation.
11. The claimant was aged 32 years as on the date of the accident and she was working as a Hindi Teacher drawing a salary of Rs.6,000/- per month at Christ Krupanidhi Public School. Exhibit-P8 is the salary certificate. The Tribunal assessed the income based on Exhibit-P8 at Rs.6,000/- per month, which needs no interference. The claimant sustained fracture of left Tibia. Exhibit-P6 is the wound certificate and Exhibit-P7 and P86 are discharge summaries, which would demonstrate the injuries suffered and the treatment taken by the claimant. The Doctors who were examined on behalf of the claimant, opined that the claimant suffers from 48% disability to a particular limb and 24% disability to the whole body. As stated above, the claimant suffered fracture of left Tibia. The fracture of the left Tibia would result in functional disability of the claimant, since she is a Teacher which requires standing throughout the day. The assessment of whole body disability at 10% by the Tribunal is on the lower side, when the Doctors were of the opinion that the claimant suffers 48% disability to a particular limb. It is to be taken at 1/3rd of the disability to a particular limb. If 1/3rd of 48% is taken, it would come to 16%. Thus, the whole body disability could be assessed at 16%.
12. The claimant states that she was an inpatient for 10 days for treatment. Looking to the injuries suffered and treatment taken, I am of the view that the compensation awarded on the head of attendant charges, conveyance, food and nourishment is on the lower side. The Tribunal has applied multiplier of 15 to award the compensation on the head of loss of income due to disability. The claimant was aged 32 years as on the date of the accident. For the age of 32 years, appropriate multiplier would be 16. Looking to the injuries suffered, i.e., fracture of left Tibia, the claimant would have been out of employment for a minimum period of four months and further, she has stated that she has suffered loss of salary during the said period. As such, she would be entitled for loss of income for four months at the rate of Rs.6,000/- per month. Thus, the claimant would be entitled for the following modified compensation:
13. Thus, the claimant would be entitled for a total sum of Rs.3,44,820/- (Rupees Three Lakhs Forty Four Thousand Eight Hundred and Twenty only) with interest at the rate of 6% per annum from the date of petition till realization, as against a sum of Rs.2,45,000/- awarded by the Tribunal.
The Miscellaneous First Appeal is allowed in part.
The judgment and award dated 05.12.2012 passed in M.V.C. No.4585/2011 by the VII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal-3, Bangalore, is modified to the above extent.
Sd/- JUDGE SJ