IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.11551/2012 (MV) BETWEEN:
MOHAMMED JABIR S/O S.K. AHAMED, AGED ABOUT 19 YEARS, STUDENT, R/O. NEAR BADRIYA MASJID, NEHRU NAGAR, SAGAR TOWN – 577 401. … APPELLANT (BY SRI. NATARAJ C.D., ADVOCATE FOR SRI. PRUTHVI WODEYAR, ADVOCATE) AND:
1. M.S. MOHIDDIN S/O FAKIR MOHAMMED, AGED ABOUT 51 YEARS, R/O NEHRU NAGAR, HANAMBI, SAGAR TOWN – 577 401.
DRIVER CUM OWNER OF THE MOTOR CYCLE BEARING REG. NO.KA-15-Q-5922.
2. THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO., NEAR HARSHA B.H. ROAD, SHIMOGA – 577 201 POLICY NO.603702/31/10/6200014232 ... RESPONDENTS (BY SRI. RAVISH BENNI, ADVOCATE FOR R2; NOTICE TO R1 DISPENSED WITH) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.09.2012 PASSED IN MVC.NO.56/2012 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, JMFC, MACT, SAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellant challenging the judgment and award passed in M.V.C.No.56 of 2012 dated 06.09.2012, on the file of the Additional Motor Accidents Claims Tribunal, Sagar.
2. Brief facts of the case are as follows:
It is the case of the claimant that on 07.11.2011 while he was proceeding as pillion rider in Motor Cycle bearing No.KA- 15/Q-5922, the respondent No.1 drove the said vehicle in a rash and negligent manner, lost the control and caused the accident. As a result of which, he sustained injuries and immediately he was taken to Government Hospital, Sagar and as per the advise of the Dcotr, he was shifted to Wen-lock Hospital, Mangalore and since he did not get proper treatment he was shifted Sanjeevini hospital, Mangalore. At the time of accident, he was studying II P.U.C., and was also doing Areca nut business with his father and was earning a sum of Rs.300/- per day.
3. In pursuance of the claim petition, respondent No.2 – Insurance company has appeared through its counsel denying the averments of the claim petition.
4. The claimant, in order to substantiate his claim, examined himself as P.W.1 and got marked documents as Exs.P1 to P.11. On the other hand, respondent have not adduced any evidence but has got marked two documents as Exs.R.1 and R.2. Doctor has been examined through Court Commissioner as P.W.-2 and document at Ex.C.1 to C.6 are got marked.
5. The Tribunal by considering both oral and documentary evidence has awarded a compensation of Rs.1,08,420/- with interest at 7% per annum. Hence, the present appeal is filed challenging the quantum of compensation.
6. The learned counsel for the claimant contended that the compensation awarded by the Tribunal under all the heads are meager and hence, it requires the interference of this Court.
7. Per contra, learned counsel for the respondents would contend that the Tribunal has awarded reasonable compensation considering all the heads and there are no grounds to interfere with the order of the Tribunal.
8. Having heard the arguments of learned counsel appearing for the claimant and learned counsel appearing for the respondents, the points that arise for consideration of this Court are:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
(ii) What order?
Point Nos.1 and 2:
9. It is the case of the claimant that even though he was studying 2nd P.U.C., he was also assisting his father by doing Areca nuts business and was earning a sum of Rs.300/- per day. The Tribunal by considering the claimant as student of II P.U.C., has taken income at Rs.3,000/- p.m. Having considering the nature of injuries and fracture of right femur, Tribunal has awarded Rs.30,000/- towards Pain and Sufferings and hence, I do not find any reasons to enhance the same.
10. The Tribunal has awarded a sum of Rs.32,420/- towards medical expenses and the same is based on documentary evidence available on records and it does not requires any interference of this Court.
11. The Tribunal has awarded a sum of Rs.6,000/- towards loss of income during laid up period. Having considering the nature of injuries and fractures, the Tribunal has taken monthly income of the claimant as Rs.3,000/- per month for two months and has awarded a sum of Rs.6,000/-.
12. Since, the accident has taken place in the year 2011 and in the absence of any documentary evidence with regard to the proof of earning, the Tribunal ought to have taken the notional income and hence, it is appropriate to take the income of the claimant as Rs.6,500/- per month. Having considered the fracture of right femur, it requires three months for uniting fracture and the claimant requires rest for one month and hence it is appropriate to take four months loss of income and award a sum of Rs.26,000/- as against Rs.6,000/-.
13. The Tribunal has awarded a sum of Rs.20,000/- towards transportation, nourishment and attendant charges. He was inpatient for a period of 10 days and hence, it does not requires any interference of this Court.
14. The Tribunal has awarded a sum of Rs.20,000/- towards future medical expenses and hence, it does not requires any interference of this Court.
15. The claimant has examined the Doctor through the Court Commissioner as P.W.-2 and got marked documents at Exs.C.1 to C.6, whereas Ex.C.2 is the disability certificate and Ex.C.5 is the x-ray. The Tribunal while considering the disability of the claimant, at para No.13 of the judgment has stated that on examination of disability certificate at Ex.C.2, it shows that there was disability at 10% to right lower limb and fracture was united and Doctor – PW-2 in his cross-examination has admitted that at the time of assessing the disability the fracture was united and there was no mal-union. Hence, the Tribunal has not awarded any compensation under the head “Future loss of income due to disability”.
16. The Tribunal merely on the ground that the fracture was united, has not awarded any compensation towards loss of income due to disability and has committed an error. The Tribunal has failed to take note of disability of 10% to right lower limb assessed by the Doctor, even the Doctor has not assessed any disability to the whole body and the assessment made by the Doctor is also not correct. However, considering the fracture of right femur, age of the claimant as ‘19’ and as the fracture is united, it is appropriate to take disability as 5% to the whole body and calculate income under this head. Accordingly, a sum of Rs.70,200/- (6,500 x 12 x 18 x 5/100) is awarded towards future loss of income due to disability.
17. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and award of the tribunal in M.V.C.No.56 of 2012 dated 06.09.2012 on the file of Motor Accidents Claims Tribunal, Sagar, is modified and an amount of Rs.1,98,620/- is awarded as compensation as against Rs.1,08,420/- awarded by the tribunal with interest at the rate of 6% per annum from the date of the petition till deposit.
(iii) The respondents are directed to pay the compensation amount with interest within 8 weeks from today.
(iv) The order of the Tribunal in respect of apportionment and depositing the compensation amount in fixed deposit shall remain unaltered.
Sd/- JUDGE MH/-