IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MFA N0.320 OF 2015 (MV) BETWEEN PRADEEP @ LAKKEGOWDA S/O SRINIVASA, AGED ABOUT 29 YEARS, R/O BELASINDA VILLAGE, KASABA HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT 573116 (BY SRI G HARSHA, ADVOCATE) AND 1. FAIAZ AHAMAD S/O BHASHA SAHIB, R/O 2ND BLOCK, BEHIND URDU SCHOOL, SUBHASH NAGAR, K R PETE TALUK, MANDYA DISTRICT, BANGALORE-560 054.
2. UNITED INDIA INSURANCE CO. LTD., 2911, SUNDER ARCADE, OPP. SUBURB BUS STAND, B N RAOD, MYSORE 570001.
...APPELLANT …RESPONDENTS (BY SMT LAKSHMI S HOLLA, ADVOCATE FOR R2 R1 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.06.2012 PASSED IN MVC No.35/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHANNARAYAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 23.06.2012 in M.V.C.No.35/2011 on the file of Senior Civil Judge and MACT, at Channarayapatna.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries suffered in a road traffic accident. It is stated that on 10.08.2010, when the claimant along with another was proceeding in a motorcycle bearing Reg.No. KA.66-H-6120, a 407 Tempo Maxi Cab bearing Reg.No.KA.01-4177, came in a rash and negligent manner and dashed to the motorcycle, as a result, the claimant sustained grievous injuries. He was working as Mason.
3. On service of notice, respondent No.2- Insurance Company appeared before the Tribunal and filed its statement of objections denying the claim petition averments. It is further contended that the alleged accident occurred due to the negligence of drivers of both vehicles.
4. The claimant examined himself as PW-1 and got marked documents Ex.P-1 to P-14 and also got examined Doctor as PW-2. The respondent Insurance Company got exhibited Insurance Policy at Ex.R1.
5. The Tribunal on appreciating the entire material on record, awarded a total compensation of Rs.73,000/- with interest at the rate of 6% per annum, from the date of petition till realization, on the following heads:
Particulars Amount in Rs. Pain and suffering 35,000=00 Medical expenses and nourishing food 15,000=00 Loss of amenities 15,000=00 Loss of income during the laid up period 8,000=00 Total 73,000=00 The claimant being not satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurance Company. Perused the entire lower court records.
7. Learned counsel for the appellant would submit that the total compensation awarded by the Tribunal compared to the injuries suffered and treatment taken is on the lower side. The claimant was an inpatient for about 10 days. It is submitted that the claimant has suffered two grievous injuries i.e., fracture of frontal bone and zygoma. In support of his claim, the claimant got examined PW.2-Doctor, who deposed that the claimant suffered from 20% permanent disability. It is also submitted that the income of the claimant assessed by the Tribunal at Rs.4,000/- per month is on the lower side, which requires to be enhanced. Thus prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2– Insurance Company would submit that the quantum of compensation awarded by the Tribunal is just compensation, which requires no interference. It is submitted that, even though the doctor deposed that the claimant suffered 20% disability, no Disability Certificate to that effect is produced and the claimant failed to prove the functional disability. Hence, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and having perused the material on record, the only point that arise for consideration in this appeal is, whether the claimant would be entitled to the enhanced compensation? Answer to the above point is in the affirmative, for the following reasons:
10. The accident occurred on 10.08.2010, involving a motorcycle bearing Reg.No.KA.06-H-6120 and a 407 Tempo Maxi Cab bearing Reg.No.KA.01- 4177 and the accidental injuries suffered by the claimant, is not in dispute in this appeal and the claimant is seeking enhancement of compensation. It is stated by the claimant that he was working as a Mason, but not placed any material on record to indicate his exact income. In the absence of the material on record, notional income have been determined. The notional income assessed by the Tribunal at Rs.4,000/- per month is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would take notional income for the accidents of the year 2010 at Rs.5,500/- per month. In this case also in the absence of any material to indicate the exact income of the claimant, I deem it appropriate to take Rs.5,500/- per month as notional income of the claimant for determination of the compensation.
11. PW.2-Doctor states that the claimant had suffered two grievous injuries and he suffered from 20% disability. But, PW.2-Doctor failed to depose as to whether the disability is towards a particular limb or whether it is to whole body. Further, the doctor has not issued Disability Certificate to that effect. In the absence of any evidence to prove the disability, the Tribunal has not assessed the disability. The Tribunal has failed to award compensation under the heads ‘Traveling allowance, conveyance, attendant charges, diet, etc’, ‘Food and nourishment’, which the claimant would be entitled to Rs.5,000/- each. The Tribunal has awarded a sum of Rs.15,000/- towards ‘Loss of amenities’, which is on the lower side. On considering the nature of the injuries suffered by the claimant and treatment taken, he would be entitled to another sum of Rs.10,000/- on the said head.
12. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Particulars Amount in Rs. Pain and suffering 35,000=00 Medical expenses 15,000=00 Loss of amenities 25,000=00 Loss of income during the laid up period Traveling allowance, conveyance, attendant charges, diet, etc.
11,000=00 5,000=00 Food and Nourishment 5,000=00 Total 96,000=00 Thus, the claimants would be entitled for enhanced modified compensation of Rs.96,000/- as against Rs.73,000/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
However, this Court by order dated 14.11.2016 condoned the delay of 814 days in filing the appeal subject to denial of interest for the delayed period. Hence, the claimant is not entitled to any interest for the delayed period of 814 days.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
Lower court records be returned forthwith.
Sd/- JUDGE DL