IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA MISCELLANEOUS FIRST APPEAL No.7175 OF 2014 (MV) C/W MISCELLANEOUS FIRST APPEAL No.6321 OF 2014 (MV) IN M.F.A.No.7175/2014 (MV) BETWEEN:
The Oriental Insurance Company Ltd., Branch Office Anand Pagariya Colony Plot. Station Road Ourangabad, Maharastra-43001. Branch Office, No.1 Mastikatte Road Kundapura Taluk Udupi District Duly represented through Regional Office Sumangala Complex 2nd Floor, Lamington Road Hubli – 580020. …..Appellant (By Sri.M.S.Sriram, Advocate) AND:
1. Smt.Bebi Shedthi W/o Shivarama Aged about 38 Years R/o Sri Ganesh, Malepete Nandse Village Kundapura Taluk Udupi District – 576101.
2. Sameer B.Maneeyar Harsha Co-operative HSG. Society Combo Madagaon Goa – 690221. …..Respondents (By Sri.Gururaj Shetty.K., Adv., for R-1, R-2 - Served) This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 14.07.2014 passed in M.V.C.No.108/2013 on the file of the Senior Civil Judge, Member, MACT, Kundapura, awarding compensation of Rs.2,93,490/- with interest @ 6% p.a., from the date of petition till deposit in Tribunal.
IN M.F.A.No.6321/2014 (MV) BETWEEN:
Bebi Shedthi W/o Shivarama Aged about 39 Years R/o Sri Ganesh, Malepete Nandse Village Kundapura Taluk Udupi District. …..Appellant (By Sri.Gururaj Shetty.K, Advocate) AND:
1. Sameer B.Maneeyar Harsha Co-operative HSG. Society Combo Madagaon Goa – 403108.
2. The Oriental Insurance Company Ltd., Anand Pagariya Colony Plot, Station Road Ourangabad, Maharastra-43001. Branch Office Mastikatte Road Kundapura Taluk Udupi District Represented by its Branch Manager. …..Respondents (By Sri.M.S.Sriram, Adv., for R-2, R-1 is dispensed with.) This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 against the judgment and award dated 14.07.2014 passed in M.V.C.No.108/2013 on the file of the Senior Civil Judge and Member, MACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These appeals coming on for admission this day, the Court delivered the following:
J U D G M E N T These two appeals are directed against the judgment and award passed by the Senior Civil Judge, Member, MACT, Kundapura (‘Tribunal’ for short) in MVC.No.108/2013 dated 14.07.2014.
2. Briefly stated the facts are that:
The claimant filed the petition before the Tribunal claiming compensation for the accidental injuries sustained by her in the road traffic accident, which occurred on 31.08.2012. It was contended by the claimant that the accident caused due to the negligence of the driver of Bolero Vehicle bearing registration No.GA-08-E-9304.
3. That, after service of notice, the insurer- contesting respondent appeared and resisted the claim.
4. After appreciation of the evidence, the Tribunal awarded total compensation of Rs.2,93,490/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit of compensation amount in the Tribunal. Aggrieved by the same, the claimant is in appeal as the compensation awarded being inadequate whereas the insurance company is in appeal, seeking reduction of the compensation awarded.
5. The learned counsel for the claimant submits that the Tribunal without appreciating the material evidence on record, awarded meager compensation under the different Heads and the same requires to be enhanced substantially in proportionate to the nature and gravity of the injuries sustained by the claimant.
6. On the other hand, learned counsel for the insurer would submit that the injuries sustained by the claimant are simple in nature, fracture of right clavicle and the lacerated wound over scalp suffered by the claimant was examined by the doctor – PW.2 and the assessment made by the doctor is as regards the permanent physical disability to the whole body to the extent of 15% is an exaggeration. The Tribunal having observed that the PW.2 has not produced any guidelines or clinical report before the Court for arriving that the permanent physical disability of whole body at 15%, applied the same to reckon the loss of earning capacity which is totally unsustainable. It is further contended that the compensation awarded by the Tribunal under the different Heads is on the higher side and the same requires to be suitably reduced.
7. Heard the learned counsel for the parties and perused the material on record.
8. It is evident that the occurrence of the accident and the nature of the injuries sustained by the claimant are not in dispute. Though the doctor assessed the permanent physical disability to whole body at 15%, the same is not based on any guidelines or clinical report as observed by the Tribunal. Considering the nature of the injuries, this Court is of the considered opinion that it would be reasonable to assess the loss of permanent physical disability to the whole body at 8%. As could be seen, the Tribunal determined the monthly income of the claimant at Rs.5,000/- per month notionally in the absence of cogent evidence placed on record by the claimant to establish the factum of employment and income, though he contended that he was working as coolie and earning Rs.10,000/- per month. It is obvious that this Court in identical circumstances, where no concrete evidence is placed on record to establish the income, has determined the monthly income based on the date of the accident, applying the same mode, the monthly income of the claimant could be safely re-determined at Rs.7000/-, which is normally applied in similar circumstances. Applying the same, the loss of future income due to disability would work out to Rs.1,00,800/- (7000/- X 12 X 15 X 8%).
9. The compensation awarded by the Tribunal under the head, pain and suffering at Rs.40,000/- though appears to be on the higher side, but compared to the compensation awarded to the loss of amenities at Rs.15,000/-, the same cannot be considered as exorbitant. Similarly, the compensation awarded under the different heads being just and reasonable, do not call for any interference by this Court. Hence, the total compensation awarded by the Tribunal is modified as under:
10. Thus, the total compensation awarded by the Tribunal is modified and reduced to Rs.2,59,290/- as against Rs.2,93,490/-, which shall carry interest at 6% per annum from the date of the petition till the date of deposit.
11. In the result, the appeal filed by the insurance company is allowed to the extent indicated above and the appeal filed by the claimant stands dismissed.
Sd/-
JUDGE NC/KMV.