IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT BETWEEN:
RAGHU M.F.A.No.9625/2015(MV) S/O LATE NANJEGOWDA AGED ABOUT 27 YEARS GANDSI HOBLI ARASIKERE TALUK PRESENTLY C/O RAMESH DOODAMANDIGANAHALLI VILLAGE TANNERUHALLA HASSAN-573201.
(BY SRI. D P ASHOK, ADV.) AND:
1. VIJAYAKUMAR M C S/O CHANGALRAJ AGED MAJOR R/O ‘RENUKA NILAYA’ NO.106/2 CHIKKAMANDIGANAHALLI VILLAGE HASSAN-573201.
2. NATIONAL INSURANCE CO.LTD., 1ST FLOOR MANJUNATHESHWARA COMPLEX ...APPELLANT BUS STAND ROAD HASSAN-573201.
(BY SRI.L SREEKANTA RAO, ADV. FOR R2 R1-SERVED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.02.2015 PASSED IN MVC NO.1702/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT, HASSAN, 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 claimant is in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 07.02.2015 in MVC No.1702/2013 on the file of the II Additional Senior Civil Judge and Motor Accident Claims Tribunal at Hassan (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in a motor vehicle accident. It is stated that on 03.06.2013, when the claimant after attending a marriage was returning to Hassan as a pillion rider in a motorbike bearing registration No.KA- 03/EU-7425, at that time, a lorry bearing registration No.KA-19/C-7065 came from opposite direction in a rash and negligent manner and dashed to the motorbike, as a result, the claimant fell down and sustained injuries, whereas the rider of the motorbike succumbed to injuries. It is stated that the claimant was working as a mason and was earning salary of Rs.20,000/-p.m. The claimant was aged about 24 years as on the date of accident.
3. In response to the notice issued, the respondents appeared before the Tribunal and filed their separate written statement denying the claim petition averments. The first respondent contended that the vehicle was insured with the second respondent/insurer. The second respondent in its objections admitted issuance of insurance policy in respect of the offending lorry.
4. The Claimant got himself examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P8 and Ex.C1 to Ex.C3 in support of his case. No evidence was let in on behalf of the respondents.
5. The Tribunal, on appreciating the material on record awarded total compensation of Rs.4,04,100/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Pain, shock and agony :: Rs. 50,000/-
2. Medical expenses, attendant charges, diet and nourishment :: Rs.1,81,500/-
3. Loss of income during the treatment Period :: Rs. 18,000/-
4. Future medical expenses :: Rs. 20,000/-
5. Loss of income on account of permanent Disability :: Rs.1,29,600/-
6. Loss of income on account of amenities, discomfort and frustration :: Rs. 5,000/-
Total Rs.4,04,100/-
The claimant, not being satisfied with the quantum of compensation 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.
7. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs.6,000/- p.m., is on the lower side. He submits that the claimant was working as a mason and earning a sum of Rs.20,000/- p.m. It is his submission that the Tribunal ignoring the evidence of P.W.1, assessed the income of the claimant at Rs.6,000/- p.m. and prays for revising the same. Further, learned counsel for the appellant submits that the whole body disability assessed by the Tribunal at 10% is also on the lower side and against the evidence of P.W.2/doctor. The doctor has stated that the claimant suffers 20% whole body disability. Further, the learned counsel for the appellant would submit that the compensation awarded by the Tribunal on the head of loss of amenities is also on the lower side, when compared to the injuries sustained by the claimant. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/insurer submits that the quantum of compensation awarded by the Tribunal is just compensation which needs no interference. It is further submitted that P.W.2/doctor has failed to assess the disability to a particular limb, but has only stated the whole body disability at 20%. He submits that, normally, the whole body disability would be assessed at 1/3rd of disability to a particular limb. It is his submission that the whole body disability assessed by the Tribunal is proper which needs no interference. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration in this appeal:
(i) Whether the income of the claimant assessed by the Tribunal at Rs.6,000/- p.m., is just and proper?
(ii) Whether the Tribunal is justified in assessing the whole body disability at 10%?
(iii) Whether the claimant would be entitled for enhanced compensation?
10. Answer to point No.(i) is in the negative and points No.(ii) and (iii) would be in the affirmative for the following reasons:
The accident is of the year 2013. The accident occurred involving the motorbike bearing registration No.KA-03/EU-7425 and a lorry bearing registration No.KA-19/C-7065 and the accidental injuries sustained by the claimant is not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation.
The claimant states that he was working as a mason and was earning Rs.20,000/- p.m. But, to establish his income, the claimant has not placed on record any material. In the absence of any material to establish the income of the claimant, the Tribunal has assessed the notional income of Rs.6,000/- p.m., but the same is on the lower side. This Court and Lok Adalath, while settling the accidental claims of the year 2013 would normally assess the notional income wherever there is no material to establish the exact income, at Rs.8,000/-
p.m. In the instant case also in the absence of any material on record to establish the exact income, it would be appropriate to assess the notional income of the claimant at Rs.8,000/- p.m.
11. The claimant has suffered injuries such as multiple abrasions over the face, head, sutured wound over the right thigh measuring 8 cm length with tenderness and swelling; open fracture shaft of right femur; two sutured wounds towards front aspect of right leg measuring 4 cms each with tenderness and swelling; open fracture both bones of right leg. PW-2/doctor in his evidence stated that the claimant suffers from 20.89% whole body disability. He has not stated in his evidence as to what is the disability to a particular limb. Always permanent whole body disability would be assessed taking 1/3rd of the disability to a particular limb. In the absence of clear medical evidence and material to indicate the disability of the claimant, the assessment of whole body disability at 10% by the Tribunal is just and proper, which needs no interference.
13. The claimant has sustained injuries as stated above. Looking to the injuries sustained and treatment taken, the compensation awarded on the head of loss of amenities, discomfort and frustration at Rs.5,000/- is on the lower side. The claimant would be entitled for another sum of Rs.20,000/- on the said head in addition to what is awarded by the Tribunal. Thus, the claimant would be entitled for the following modified compensation:
1. Pain, shock and agony :: Rs. 50,000/-
2. Medical expenses, attendant charges, diet and nourishment :: Rs.1,81,500/-
3. Loss of income during the treatment Period (8000x3) :: Rs. 24,000/-
4. Future medical expenses :: Rs. 20,000/-
5. Loss of income on account of permanent Disability (8000x12x18x10/100) :: Rs.1,72,800/-
6. Loss of amenities, discomfort and frustration :: Rs. 25,000/-
Total Rs.4,73,300/-
Thus, the claimant would be entitled for total compensation of Rs.4,73,300/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.4,04,100/- awarded by the Tribunal.
14. Accordingly, the appeal is allowed in part. The judgment and award dated 07.02.2015 in MVC No.1702/2013 on the file of the II Additional Senior Civil Judge and Motor Accident Claims Tribunal at Hassan is modified to above extent. The claimant would be entitled to an enhanced compensation of Rs.69,200/-.
This court, by order dated 27.04.2018 condoned the delay of 208 days in preferring the appeal, subject to denial of interest in case of enhancement of compensation. Accordingly, the claimant would not be entitled to interest for the delayed period of 208 days.
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