IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.682 OF 2013 (MV) BETWEEN:
PUSHPARAJ HEGDE, AGED ABOUT 52 YEARS, S/O RAVIRAJ ATHIKARI, R/O NADIMAR HOUSE, MARNE VILLAGE, UDUPI TALUK. ... APPELLANT (BY KUM. AKSHITA D JAIN, ADVOCATE FOR SRI. PAVANA CHANDRA SHETTY.P, ADVOCATE) AND:
1. VENU KUMAR, AGED ABOUT 36 YEARS, S/O NARAYANA SHETTY, R/NEAR NAGARAJ B.S.HOUSE, THAVAREKERE VILLAGE, HOSAKOTE TALUK, URBAN BANGALORE.
2. THE DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE CO. LTD., UDUPI DIVISIONAL OFFICE, UDUPI.
... RESPONDENTS (BY SRI P.B.RAJU, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 01/3/2014) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.6.2011 PASSED IN MVC NO.634/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, 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 13/06/2011 in M.V.C.No.634/2009 on the file of the Principal Senior Civil Judge & Additional MACT, Udupi.
2. The accident that occurred on 12-4-2008 involving motorcycle bearing Reg.No.KA-20-J-2938, TATA Lorry bearing Reg.No.KA-03-D-1188 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation.
3. On issuance of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2-Insurer appeared before the Tribunal and filed its written statement denying the claim petition averments. It is further stated that the accident had taken place solely due to the rash and negligent driving of the claimant himself. It is also stated that the driver of the offending Lorry bearing Reg.No.KA-03-D-1188 had no valid and effective driving licence as on the date of accident. Thus, prayed to dismiss the claim petition.
4. The claimant examined himself as PW-1 and one more witness as PW-2, apart from marking documents Exs.P-1 to P-9. No evidence was lead on behalf of the respondents.
5. The Tribunal on assessment of the entire material on record, awarded total compensation of Rs.50,200/- with interest at the rate of 8% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and sufferings 25,000 2. Conveyance 2,000 3. Attendant and Nourishing food 5,000 4. Medical expenses 13,200 5. For discomfort and loss of Amenities 5,000 Total 50,200 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 appellant and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side. He further submits that the claimant has sustained fracture of left scapula and closed head injury and he was inpatient for four days. It is his further submission that the claimant was working as school teacher and was earning Rs.18,000/- per month. The Tribunal failed to award any compensation on the head of ‘Loss of income during laid up period’ and the compensation awarded on the heads of ‘Loss of amenities’, ‘Conveyance’ and ‘Attendant and Nourishing food’ are on the lower side. Further, the learned counsel submits that the claimant had taken 64 days Earned Leave and no compensation is paid for the said period and he could not encash 64 days earned leave. The Tribunal, based on the evidence of PW-2-Head Master of the School and Exs.P5 & P6 ought to have awarded compensation for ‘Loss of income due to availing earned leave of 64 days’. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for the respondent– Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the claimant has not examined Doctor in support of his case and also submits that no material is placed on record in support of his contention that he was advised to take rest for 64 days. In the absence of any material/document in respect of taking rest for 64 days, the claimant would not be entitled for compensation towards loss of income said to have suffered by the claimant for availing 64 days earned leave. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the 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 would be partly in the affirmative for the following reasons.
10. The claimant has placed on record Ex.P3-wound certificate, wherein it discloses that the claimant has suffered fracture of left scapula and closed head injury but in support of his case, he has not examined the Doctor. It is stated that the claimant was inpatient for four days for taking treatment to the accidental injuries suffered by him. Looking to the injuries sustained and treatment taken by the claimant as inpatient, definitely the claimant would have been out of employment for a period of one month. Hence, the claimant would be entitled for compensation on the head of ‘Loss of income during laid up period of one month’. Further, the claimant states that he was receiving salary of Rs.18,000/- per month, but he has not placed on record any material to establish his exact income. In the absence of any material to establish the exact income of the claimant, it would be appropriate to award a sum of Rs.8,000/- towards ‘Loss of income during laid up period of one month’. Further, looking to the injuries sustained i.e., fracture of left scapula and closed head injury, the claimant would be entitled for another Rs.15,000/- on the head of ‘Discomfort and loss of amenities’ and another sum of Rs.3,000/- on the heads of ‘Conveyance’, ‘Attendant and Nourishing food’ in addition to compensation awarded by the Tribunal.
11. The claimant contended that he would be entitled for 64 days salary as he had availed earned leave for 64 days due to the injuries sustained in the accident. He further submitted that as he availed 64 days earned leave, he was deprived of availing encashment of earned leave for 64 days. The claimant might have taken earned leave of 64 days, but he has not placed on record any certificate as to whether he was advised to take rest for 64 days. In the absence of the documents, evidence or any medial, with regard to advising the claimant to take rest for such a long period, the claimant would not be entitled for salary for 64 days as sought by him. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.)
The claimant would be entitled for enhanced modified compensation of Rs.76,200/- as against Rs.50,200/- with interest at the rate of 8% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit would be as ordered by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
By order dated 01-3-2014 the delay of 438 days in filing the appeal was condoned subject to the condition that the appellant would not be entitled for the interest for the delayed period. Accordingly, the appellant would not be entitled for the interest for the delayed period of 438 days.
Sd/- JUDGE SMJ