IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.G. PANDIT MISCELLANEOUS FIRST APPEAL NO.4693 OF 2014 Between:
Mr. Nagaraju S/o Mr. Chikkananjaiah Aged about 40 years r/at C/o Madaiah Mudiguda village Kollegal Taluk 571 440 (by Shri Keshavamurthy B, Advocate) And:
1. Mr. Y. Aslam Khan S/o Mr C.J. Yusuf Khan Major in age R/o Cowdalli Post Kollegall Taluk Chamarajanagara 571 440 2. The Branch Manager M/s. United India Insurance Co. Ltd. Dr. Rajkumar Road Southern Extension Kollegal 571 440 (by Shri Ravish Benni, Advocate for R2) …Appellant …Respondents This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act against the judgment and award dated 02.01.2010 passed in MVC No.435 of 2008 on the file of the Presiding Officer, Fast Track Court, MACT, Kollegal partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming 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 in judgment and award dated 02nd January, 2010 passed in MVC No.435 of 2008 on the file of the Fast Track Court, and Motor Accident Claims Tribunal, Kollegal (for short hereinafter referred to as ‘the Tribunal’).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in a road traffic accident. It is stated that on 23rd April, 2008 at about 6.30 pm when the claimant was about to board the bus bearing registration No.KA-10-3393, the driver of the bus suddenly moved it in reverse direction in a rash and negligent manner, due to which the claimant fell down and sustained injuries. Immediately he was taken to General Hospital, Kollegal and thereafter was shifted to K.R. Hospital, Mysuru. The claimant had suffered fracture of right calcanium present with right fibula fracture. He had undergone surgery. It is stated that the claimant was aged 34 years and was doing contract work besides agricultural work and was earning Rs.10,000/- per month. On issuance of notice, the respondent No.1 remained absent and the respondent No.2-Isurer appeared and filed its objections denying the claim petition averments. Further, it is stated that accident occurred solely due to the negligence of the claimant himself.
3. The claimant examined himself as PW1 and in support of his case and marked exhibits P1 to P10. The claimant also examined Doctor as CW1 and marked document Exhibits C1 to C3. The respondent No.2-Insurer marked Exhibit R1-Policy. The Tribunal, on appreciating the materials on record awarded compensation of Rs.80,000/- with interest at 6% per annum from the date of claim petition till its deposit. The claimant being not satisfied with the quantum of compensation, is before this Court in this appeal praying for enhancement of compensation.
4. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2-Insurer and perused the entire records including the lower court records.
5. The learned counsel for the appellant would submit that the compensation awarded by the Tribunal is on the lower side. The learned counsel further submits that the Tribunal failed to assess the income earned by the claimant; and also the whole body disability for the purpose of awarding compensation. He further submits that the Tribunal also failed to award compensation under the head loss of income during the treatment period. Thus, he prays for enhancement of the compensation.
6. Per contra, the learned counsel appearing for the respondent No.2-Insurer submits that the quantum of compensation awarded by the Tribunal is a just compensation and it needs no interference. He submits that there is no material to indicate the exact income of the claimant. Hence, he prays for dismissal of the appeal.
7. Having heard the learned counsel for the parties and on perusal of the materials on record, the point that falls for consideration is, whether the claimant is entitled for enhancement of compensation in the facts and circumstances of the case? The answer to the above point is partly in the affirmative for the following reasons.
8. The accident occurred on 23rd April, 2008 involving the bus bearing registration No.KA-10-3393 and the accidental injuries suffered by the claimant are not in dispute in this appeal. In this appeal, the prayer of the claimant is for enhancement of compensation. The claimant has placed on record Exhibit P4 wound certificate and Exhibit P8 discharge summary. The claimant has also examined CW1 Doctor in support of his claim. The claimant has suffered the fracture of right clacanium present with right fibula fracture. He has also undergone surgery. The Doctor, in his evidence, has stated that the claimant suffered from 30% disability to his right leg. The Tribunal failed to assess the whole body disability. If the disability to the limb, as stated by the Doctor, is at 30%, then the whole body disability would be one third which would come to 10%. The same is to be assessed at 10% by looking to the evidence of Doctor and medical records. The Tribunal has failed to assess the income of the claimant. The claimant states that he was a Contractor and he was also doing agricultural work and was earning Rs.10,000/- per month. He was aged about 34 years as on the date of accident. In the cases where the claimants have not established the income by producing documentary evidence, this Court and the Lok Adalats, for the accidents of the year 2008, the notional income is assessed at Rs.4,500/- per month. In the instant case also as there is no material on record to indicate the exact income of the claimant, and considering the year of accident which is 2008, it would be appropriate to take notional income of the appellant-claimant at Rs.4,500/- per month. Looking at the injuries suffered by the claimant, it is to be presumed that the claimant should have taken rest for a minimum period of three months and hence he would be entitled for award of compensation under the head loss of income during the treatment period. The claimant was an inpatient almost for a period of 28 days and looking to the injuries suffered and the treatment taken, the claimant would be entitled for a sum of Rs.10,000/- towards attendant charges, food & nourishment. Thus the claimant would be entitled for the following modified compensation:
Head Amount (Rs.)
9. Thus, the claimant would be entitled for a total compensation of Rs.1,29,900/- with interest at 6% per annum from the date of petition till realisation as against Rs.80,000/- awarded by the Tribunal.
10. This court by order dated 23rd June, 2017 condoned the delay of 1563 days caused in filing the appeal subject to the condition that in the event of enhancement of compensation, the appellant shall not entitled for interest for the period of delay. Accordingly, the claimant is not entitled for any interest for the delayed period of 1,563 days.
11. In the result, the appeal is allowed in part. The judgment and award dated 02nd January 2010 in MVC No.435 of 2008 passed by the Tribunal is modified to the above extent.
Sd/- JUDGE lnn