IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.5444/2013 [MV] BETWEEN:
PUTTASWAMY S/O THIMMEGOWDA AGED ABOUT 22 YEARS R/AT. MARENAHALLI VILLAGE KASABA HOBLI CHANNARAYANAPATANA TALUK HASSAN DISTRICT.
(BY SRI. H.S. SANTHOSH, ADV.) AND:
1. AMASEGOWDA S/O THIMMEGOWDA AGED ABOUT 30 YEARS R/AT GOLLARAHOSALLI VILLAGE KASABA HOBLI CHANNARAYANAPATANA TALUK HASSAN DISTRICT.
2. THE MANAGER UNITED INDIA INSURANCE CO.LTD., HUNSURU CLUB COMPLEX POST OFFICE ROAD HUNSURU MYSORE DISTRICT.
(R1-NOTICE D/W V/O DATED 14.11.2019 SRI M.S. SRIRAM, ADV. FOR R2) ...APPELLANT …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.06.2012 PASSED IN MVC NO.107/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHANNAPATNA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 23.06.2012 passed in MVC No.107/2010 on the file of the Senior Civil Judge, MACT, Channarayapatna.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 13.01.2010 when the claimant along with his father was walking on the left side of the road near Marenahalli Gate, a Hero Honda Splendor Bike bearing Reg.No.KA-12H-7118 came from behind in a rash, negligent manner and dashed to the claimant. As a result he sustained bodily injuries. It is stated that the claimant suffered fracture of right Tibia and fibula. He was an agriculturist and was earning more than Rs.18,000/- per month. He was aged 21 years as on the date of accident.
3. On issuance of summons, respondents 1 and 2 appeared before the Tribunal and filed their objections. Respondent No.1 denied the petition averments and further stated that the vehicle is insured with the 2nd respondent. The 2nd respondent insurer filed its objections and stated that the alleged accident occurred solely due to the negligence of the claimant himself. He also stated that the driver of the offending vehicle did not possess valid and effective driving license as on the date of accident. The claimant examined himself as PW.1 and also examined the Doctor as PW.2 and got marked the documents Exs.P.1 to P.15. The Tribunal on appreciating the material on record awarded total compensation of Rs.93,000/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
a. Pain and suffering 40,000/-
b. Medical expenses 30,000/-
c. Loss of earning during laid up period 8,000/-
d. Loss of amenities 15,000/-
Total Rs.93,000/-
While awarding the above compensation the Tribunal assessed the income of the claimant at Rs.4,000/- per month. Not being satisfied with the quantum of compensation awarded by the Tribunal and as the Tribunal failed to assess the disability suffered by the claimant, he is before this Court in this appeal 4. Heard the learned counsel for the appellant and learned counsel for the respondent - insurer. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the Tribunal failed to award just compensation. It is his submission that the claimant was doing agriculture and was earning Rs.18,000/- per month. But the Tribunal without any basis assessed the income of the claimant at Rs.4,000/- per month, which is on the lower side. He further submits that PW.2 - the Doctor, stated that the claimant suffers from 30% permanent disability to his right leg and also further stated that the claimant has undergone surgery and nail has been fixed. Learned counsel also contends that PW.2 – the Doctor has also deposed that there is restriction of right ankle movement by about 20%. In that circumstances, the Tribunal ought to have assessed the whole body disability and ought to have awarded compensation on the head loss of future income due to disability. It is also his submission that the Tribunal failed to award any compensation on the head of conveyance, transportation, food and nourishment, which the claimant would be entitled to, since he was inpatient for six days. Hence prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. It is his further submission that the Tribunal rightly did not assess the whole body disability, since the claimant failed to establish functional disability suffered and PW.2 -the Doctor failed to depose with regard to the whole body disability. Thus prays for dismissal of the appeal.
7. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records, the points that arise for consideration is as to “a. Whether the income assessed by the Tribunal at Rs.4,000/- per month is just and proper ?
b. Whether the failure of the Tribunal to assess the whole body disability is justified?
c. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to point Nos.a and b is in the negative and point No.c is in the affirmative for the following reasons :
The occurrence of the accident on 13.01.2010 involving Hero Honda Splendor Bike bearing Reg.No.KA- 12-H-7118 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 accident is of the year 2010. The claimant states that he was doing agriculture and earning Rs.18,000/- per month, but he has not placed on record any material to indicate his exact income. In the absence of any document, the Tribunal assessed the notional income of the claimant at Rs.4,000/- p.m. which is on the lower side. In the absence of any material, the Court will have to determine the income on notional basis. This Court and Lok Adalath while settling the accident claims of the year 2010 would normally take notional income of Rs.5,500/- per month. Hence, it would be appropriate to take the monthly income at Rs.5,500/- for determining the compensation on the head ‘Loss of future income due to disabilty’. The claimant has suffered fracture of right tibia and fibula. He has placed on record Ex.P6 – the wound certificate and Ex.P.10 – the discharge card, which would indicate the injuries suffered by the claimant and the treatment taken as inpatient for six days. Pw.2 – the Doctor was examined in support of the claimant’s case. PW.2 – the Doctor in his evidence deposed that the claimant was operated and fixed with nail in respect of the fractures suffered by the claimant. He further deposed that the right knee and the movement of the right leg is restricted by about 20%. PW.2 – the Doctor was of the opinion that the claimant suffers disability of 30% to right limb. In the cross-examination he denied the suggestion that the claimant would not suffer 30% disability to particular limb. The claimant has stated that he was doing agricultural work. Doing of agricultural work would necessarily involve using both the legs and definitely the fracture suffered by the claimant would come in the way of his doing day to day work as an agriculturist. Looking to the avocation of the claimant, the injuries suffered and the Doctor’s evidence that the claimant has suffered disability of 30% to a particular limb, the Tribunal ought to have taken the disability to the whole body at 10% i.e., 1/3rd of the disability to particular part of the body. In the instant case, as the claimant has suffered disability of 30% to a particular limb, the whole body disability could be assessed at 10% i.e., 1/3rd of the disability to particular part of the body. Thus the claimant would be entitled for compensation due to disability taking into consideration the whole body disability at 10%. The Tribunal has failed to award any compensation on the head Conveyance, Transportation, Food and Nourishment. Ex.P.10 - the discharge summary would indicate that the claimant was inpatient for six days. The Tribunal has failed to award any compensation on the head ‘transportation and conveyance’, ‘food and nourishment, the claimant would be entitled for a sum of Rs.5,000/- each towards the said heads. Thus the claimant would be entitled for the following modified compensation:-
a. Pain and sufferings 40,000/-
b. Medical expenses 30,000/-
c. Loss of amenities 15,000/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent and the claimant is entitled to enhanced compensation in a sum of Rs.2,19,800/- as against Rs.93,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms