IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.8445/2017 (MV) BETWEEN:
PRAVEEN H.R. @ PRAVEEN S/O RAMAPPA AGED ABOUT 26 YEARS OCC:PRESENTLY NIL R/O HUNSAGAHATTA TQ, TARIKERE C/O RANGAPPA, S/O GAVI RANGAPPA 191 A BLOCK, SOG COLONY, INDUSTRIAL AREA DAVANGERE.
... APPELLANT (BY SMT. SARITHA KULKARNI, ADV.) AND 1. ANIL KUMAR P.K.
S/O KRISHNAMURTHY,P.H 37 YEARS OCC:BUSINESS R/O KALABYRAVESHWARA NILAYA MALLESHWARA ROAD, KADUR 2. THE DIVISIONAL MANAGER ORIENTAL INSRUANCE CO. LTD., BRANCH OFFICE THILUVALLI COMPLEX, NEAR ARUNA TALKIES P.B. ROAD, DAVANGERE-577001 ... RESPONDENTS (BY SRI.K. SRIDHAR, ADV. FOR R2, NOTICE TO R1 IS DISPENSED WITH V/O DATED 15.03.2019) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.08.2017 PASSED IN MVC NO.694/2015 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND VII MACT, DAVANGERE, 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 This appeal is filed by the appellant challenging the judgment and award dated 2.8.2017 passed by the III Addl. Senior Civil Judge & VII Addl. MACT in MVC 694/2015.
2. Brief facts of the case:
On 8.2.2015, when the claimant was riding his motorcycle bearing Registration No.KA-18-EA-4874 and proceeding towards Tarikere from Hunsgatta Village along with another person, when they reached near Ajjampura cross, Hyundai Santro car bearing Registration No.KA-04-ME-0562 came in a rash and negligent manner and dashed against his motorcycle. As a result, he sustained injuries and immediately he was shifted to the hospital. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support his case, he examined himself as PW-2, and Dr.D.C.Girish, as PW-3, and submitted 22 documents. On the other hand, the Insurance Company has not examined any witness but has produced one document. After appreciation of the evidence, the Tribunal granted compensation of Rs.1,48,300/- with interest at 8% p.a. Being aggrieved by the same, the present appeal is filed.
3. The learned counsel for the claimant has raised the following contentions:
Firstly, as per the wound certificate Ex.P-15, the claimant has sustained injuries: (a) abrasion over fore head (b) Abrasion over nose (c) fracture over both bone of right leg (d) Fracture over right femur (e) Lacerated wound over right middle finger. PW-3 in his evidence has stated that the claimant has suffered 45% disability. Considering the same, the Tribunal is not justified in awarding meager compensation of Rs.10,000/- under the head "pain and sufferings".
Secondly, the Tribunal is not justified in taking the income of the claimant as merely as Rs.5,500/- per month.
Thirdly, PW-3, the doctor has stated in his evidence that the claimant has suffered disability of 45%. But, for the category of "loss of amenities", the Tribunal has granted compensation as merely as Rs.10,000/-.
With this, the learned counsel for the claimant prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company has raised the following counter- contentions:
Firstly, even though PW-3, doctor, who has stated that the claimant has suffered disability of 45% is not the treating doctor. Further, the claimant has not taken any follow up treatment with PW-3. Therefore, the Tribunal is justified in taking whole body disability at 10%.
Secondly, even though the claimant claims that he was working as Mason and earning Rs.10,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Thirdly, on appreciation of the oral and documentary evidence, the Tribunal has rightly awarded just and reasonable compensation under all the heads.
With this, the learned counsel for the Insurance Company prays for dismissal of the appeal.
5. Heard the learned counsel for the parties.
Perused the records.
6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 8.2.2015 due to rash and negligent driving of the offending vehicle by its driver. The claimant has sustained the above mentioned injuries in the said accident.
7. The claimant claims that he was working as mason and earning Rs.10,000/- per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2015, the income should be taken notionally as Rs.9,000/- per month. Therefore, the learned Tribunal is unjustified in assessing the claimant’s income as merely Rs.5,500/- per month. Therefore, this Court enhances the claimant’s income from Rs.5,500/- to Rs.9,000/- per month. The Tribunal considering the nature of injuries has rightly taken the whole body disability at 10% and applied the multiplier of ’18’. Therefore, the ‘loss of future income’ works out to Rs.1,94,400/- (9000 x 12 x 18 x 10%) and it is awarded as against Rs.1,18,800/- awarded by the Tribunal.
8. PW-3, Dr.Girish has stated in his evidence that the claimant has suffered 45% disability. Even though PW-3 is not a treating doctor, taking into consideration the nature of injuries, duration of treatment and an amount of discomfort and unhappiness, the claimant has to undergo in his life, this Court enhances the compensation from Rs.10,000/- to Rs.40,000/- under the category of "pain and sufferings" and from Rs.10,000/- to Rs.40,000/- under the head "loss of amenities".
9. Considering the nature of injuries suffered by the claimant, the laid up period can be taken as 2 months. Since, the income of the claimant is enhanced, consequently, compensation of Rs.9,500/- granted by the Tribunal under the category of “loss of income during laid up period” is enhanced to Rs.18,000/- (Rs.9,000 X 2 months).
10. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 2.8.2017 passed by the III Addl. Senior Civil Judge & VII Addl. MACT in MVC 694/2015, stands modified.
The claimant is entitled to receive the following compensation:
11. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 8% per annum, from the date of filing of the claim petition till the date of realization, within a period of three weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying his identity.
Sd/- JUDGE DM