IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.902 OF 2014 (MV) BETWEEN:
SHRI. PRAKASH @ FAKEER GADWAL S/O. PARUSHARAMANAYAK @ PULLYYA GADWAL, AGED ABOUT 34 YEARS R/AT HANUMANTHEGOWDARAPALYA, BAGYAMMAJI BUILDING DASANAPURA HOBLI, MADANAYAKANAHALLI POST, NELAMANGALA TALUK, BANGALORE-562123.
(BY SRI. K.V.NAIK, ADVOCATE FOR SRI. SHRIPAD.V.SHASTRI, ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO. LTD. R.O.25, SHANKAR NARAYAN BUILDING, M.G.ROAD, BENGALURU-01. BY ITS MANAGER.
2. MANAGING DIRECTOR M/S. VIJAYAND ROADLINES LTD. GIRIRAJ ANNEXE, CIRCUIT HOUSE ROAD, HUBLI – 580029.
... APPELLANT 3. THE ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, MILLENNIUM CITY, INFORMATION TECHNOLOGY, PARK, UNIT NO.1-2-2A TOWER-II, PLOT NO.DN-62, SECTOR-V, SALT LAKE, KOLKOTTA-700091.
BY ITS MANAGER.
4. SHRI. SRINIVAS MURTHY S/O VENKATAPPA V, MAJOR, R/AT NO.208 MAIN MATHIKERE EXTENSION, NEAR SUBBAIAH HOSPITAL, MATHIKERE, BANGALORE-560054.
... RESPONDENTS (BY SRI. B.A. RAMAKRISHNA, ADVOCATE FOR R1 R2 TO R4 - NOTICE DISPENSED WITH V/O DATED 18/7/2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.07.2013 PASSED IN MVC NO.1427/2017 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 03/7/2013 in M.V.C.No.1427/2011 on the file of the XII Additional Small Causes Judge and Member, MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by him in a road traffic accident. It is stated that on 12-11-2010, when the claimant was travelling as cleaner in the VRL mini lorry bearing No.KA-25-B-4217, the driver of the mini lorry drove the same in a high speed with rash and negligent manner and suddenly took right turn and dashed against a lorry bearing No.KA-04-C-3254. Due to which, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Sarojini Hospital, where he was treated as inpatient for nearly 40 days. The claimant suffered grievous injuries like Type II compound fracture tibia 1/3rd with communited fracture 1/3rd Fibula left leg, crush injury right ankle of front, fracture of vascular injury, fracture of 2nd Metatarsal of right foot. He was working as cleaner and was earning Rs.7,500/- per month. He was aged 31 years as on the date of accident.
3. On issuance of notice, respondent Nos.1 & 2 appeared through their counsel and respondent Nos.3 & 4 remained ex-parte. Respondent No.1-insurer in its statement denied the claim petition averments but admitted the issuance of policy. It is stated that the accident occurred solely due to the negligent driving of the driver of lorry bearing No.KA-04-C-3254. Respondent No.2-owner in his statement admitted that the claimant was travelling as cleaner in VRL mini lorry bearing No.KA- 25-B-4217 but denied the claim petition averments. Further stated that the mini lorry was insured with respondent No.1-insurer.
4. The claimant examined himself as PW-1 and Doctor as PW-2 and one more witness as PW-3 apart from marking documents Exs.P-1 to P-12. No evidence or documents were marked on behalf of the respondents.
5. The Tribunal on assessment of the entire material on record, awarded total compensation of Rs.2,08,600/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.)
While awarding the above compensation, the Tribunal assessed the notional income of the claimant at Rs.4,500/- per month and whole body disability at 15%. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the parties and perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the compensation awarded by the Tribunal is on the lower side. He further submits that the claimant was working as cleaner and was earning Rs.7,500/- per month as salary. But the Tribunal assessed the claimant’s income at Rs.4,500/- per month, which is on the lower side. It is his further submission that the claimant has suffered the following injuries:
1. Type II compound fracture tibia 1/3rd with communited fracture 1/3rd fibula left leg.
2. Crush injury right ankle of foot with vascular injury.
3. Fracture of 2nd Metatarsal of right foot.
PW-2-Doctor in his evidence has stated that the claimant suffers 34% disability to a particular limb and 17% disability to the whole body. Looking to the injuries suffered and treatment taken as inpatient for nearly 40 days, the compensation awarded on the other heads are on the lower side. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent No.1– Insurer submits that the compensation awarded by the Tribunal is just compensation, which needs no interference. Looking to the nature of injuries suffered by the claimant and taking note of Doctor’s evidence, the Tribunal rightly assessed the whole body disability at 15%, which requires no interference. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the entire material on record including the lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation. Answer to the said point is in the affirmative for the following reasons.
10. The accident occurred on 12-11-2010 involving VRL mini lorry bearing No.KA-25-B-4217, lorry bearing No.KA- 04-C-3254 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that he was working as cleaner and was earning Rs.7,500/- per month but respondent No.2-owner of the mini lorry has disputed the same. The claimant has not placed on record any material to indicate his exact income. In the absence of the material to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.4,500/- per month, the same is on the lower side. Looking to the standard of living in the year 2010 and even a coolie would earn Rs.200/- per day in the year 2010. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2010 at Rs.5,500/- per month. In the instant case also in the absence of any material/document to indicate the exact income of the claimant, it would be appropriate to take Rs.5,500/- per month as notional income of the claimant for determination of the compensation.
11. The claimant has sustained the injuries as stated above and PW-2-Doctor who was examined on behalf of the claimant states that claimant suffers 34% disability to a particular limb and 17% disability to the whole body. Normally the whole body disability would be assessed at 1/3rd of the disability to a particular limb and in the instant case the claimant has suffered 34% disability to a particular limb. Accordingly, the Tribunal assessed the whole body disability at 15%, which is proper and correct and needs no interference. Admittedly, the claimant was inpatient from 12-11-2010 to 22-12-2010 and he has undergone operation of right leg exploration, debridement ‘K’ wire fixation, repair of dorsalis pedis artery and EHL (Extensor Halnci Longus) and other surgeries. Looking to the treatment taken as inpatient for nearly 40 days, the claimant would be entitled for another Rs.10,000/- on the head of ‘Loss of amenities in life, happiness & frustration’ and another sum of Rs.15,000/- on the head of ‘conveyance, attendant charges, food and nourishment’. Looking to the nature of injuries and treatment taken, the claimant would have been out of employment for nearly four months. Hence, there would be loss of income during that period. As the income of the claimant is assessed at Rs.5,500/- per month, the claimant would be entitled for a sum of Rs.22,000/- on the head of ‘Loss of income during the treatment period’. Thus, the claimant-appellant would be entitled for the modified enhanced compensation as
charges, food and nourishment
12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,75,400/- as against Rs.2,08,600/- with interest at the rate of 6% per annum from the date of petition till its realization, as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ