IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.955/2013 [MV] BETWEEN :
SMT.NEELAMMA W/O PUTTAPPA AGED 60 YEARS R/AT MAGODU VILLAGE MALLIPATTANA HOBLI ARAKALGUD TALUK HASSAN DISTRICT-573102 ...APPELLANT (BY SRI D.PRABHAKAR, ADV.) AND :
1. CHETHANA S/O SURESHA R/O SIDLHOSAHALLI VILLAGE KATTAYA HOBLI HASSAN TALUK & DISTRICT-573128 2. NATIONAL INSURANCE CO. LTD. HEROHONDA VARTICLE 101106, BMC HOUSE, N.I. KOYANANT, NEW DELHI REP. BY DIVISIONAL MANAGER NATIONAL INSRUANCE OFFICE SRI MANJUANTHESHWARA COMPLEX, 2ND FLOOR, BUS STAND ROAD, HASSAN-573201 …RESPONDENTS (BY SMT.MANJULA N. TEJASWI, ADV. FOR R-2; R-1 NOTICE D/W V/O DATED 09.01.2015.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 21.7.2012 PASSED IN MVC NO.74/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, ARKALGUD, 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 before this Court in this appeal not being satisfied with the quantum of compensation awarded in the judgment and award dated 21.7.2012 passed in MVC No.74/2012 on the file of the Senior Civil Judge, JMFC, Arkalgud (hereinafter referred to as 'the Tribunal' for short).
2. The claimant/injured filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by her in a road traffic accident which occurred on 27.07.2011. It is stated that the claimant while walking on the side of the road, a Honda Activa bearing registration No.KA-13/ W-5650 ridden in a rash and negligent manner and dashed against the claimant, as a result of which, the claimant sustained grievous injuries on her both legs, right shoulder, jaw, chest and other parts of the body. She also sustained fracture to her right leg. Initially, the claimant had taken treatment at Government Hospital, Arkalgud and subsequently at Mangala Hospital at Hassan. It is stated that the claimant has spent huge amount towards medical expenses and hence sought for compensation of Rs.10,00,000/-.
3. In pursuance of the notice issued, respondents No.1 and 2 appeared before the Tribunal and filed their objections. Respondent No.2 contended that the amount of compensation claimed by the claimant is higher, excessive and exorbitant. It is also stated that the driver of the offending vehicle had no licence to drive the vehicle as on the date of accident.
4. The claimant examined herself as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P18. The respondent/ Insurance Company got marked the insurance policy as Ex.R1.
5. The Tribunal, on assessing the material on record awarded total compensation of Rs.1,24,000/- with interest at the rate of 6% p.a., assessing the income of the injured as Rs.3,000/- p.m. and the disability at 15%. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the Insurance Company.
7. Learned counsel for the appellant would submit that the income of the injured assessed by the Tribunal at Rs.3,000/- p.m. is on the lower side. Further, it is contended that the disability assessed by the Tribunal is not correct and against the evidence of doctor who had opined that the claimant had suffered 25% disability to her right lower limb, 25% to left lower limb and 20% to left upper limb.
8. Per contra, learned counsel for the Insurance Company submits that the compensation awarded by the Tribunal is just and appropriate, which needs no interference by this Court. She further states that the claimant is aged about 60 years and there is no evidence on record to indicate the exact income of the claimant. Therefore, the income taken by the Tribunal is appropriate.
9. On hearing the learned counsel for the parties and on perusal of the material on record, the only question that arises for consideration is as to whether the claimant/appellant is entitled for enhanced compensation?
10. The accident occurred on 27.07.2011 involving the motor bike bearing registration No.KA-13/W-5650 and accidental injuries suffered by the claimant are not in dispute in this appeal. The appeal is for enhancement of compensation. The Tribunal has assessed the income of the injured at Rs.3,000/- p.m., which is on the lower side. This Court and Lok Adalaths while settling the accident claims of the year 2011 would normally assess Rs.6,500/- p.m. as notional income. In the present case also, in the absence of any material to indicate the exact income of the claimant/injured, I deem it appropriate to reckon the notional income at Rs.6,500/- p.m., to assess loss of income on account of permanent disability. The claimant has suffered the following injuries:
1) Fracture Greater Tuberossty of Humur left, 2) Type III C open fracture right leg both tibia and fibula, 3) Type II open fracture both bones left tibia, 4) Loss of incisors tooth, 5) Laceration forehead, 6) Abrasion Chest, 7) Abrasion buttocks, 8) Abrasion back.
11. The Tribunal looking into the evidence of the doctor/P.W.2 and medical records has rightly come to the conclusion that claimant has suffered whole body disability at 15% which needs no interference. The claimant/injured was inpatient for a period of 13 days. Looking into the injuries suffered, i.e. three fractures and treatment taken as in patient for 13 days, the compensation awarded on the head of pain and agony, attendant charges and loss of amenities is on the lower side. Thus, the claimant would be entitled for the following enhanced compensation.
Loss of income on account of permanent disability
Total :: Rs.2,21,600.00 12. Accordingly, the appeal is allowed in part. The impugned judgment and award dated 21.7.2012 passed in MVC No.74/2012 on the file of the Senior Civil Judge, JMFC, Arkalgud is modified and the claimant is entitled to compensation of Rs.2,21,600/- with interest at the rate of 6% p.a. as against Rs.1,24,000/- awarded by the Tribunal.
Sd/- JUDGE mpk/-*CT:bms