IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR M.F.A.NO.2679 OF 2017(MV) Between Ramachandra @ Chandregowda S/o. Jogigowda, aged about 47 years R/at Mahadevapura, S R Patna Tq Mandya District-571438. …Appellant (By Sri. Sreenivasan.M.Y., Advocate ) And 1. A Aboo S/o Mammu K P Major, r/at Engilagere Village And Post, Virajapete, Kodagu Madikere District-571 201.
2. The Manager (Legal Claims) Universal Sampoo Gen Ins Co Ltd. KVD Tower, No.7/3, 2nd Floor Opposite to 100 feet Road Old Madras Road, Indira Nagara Bengaluru-560 038. …Respondents (By Sri. B.C. Shivannegowda, Advocate for R2; R1- notice d/w) This appeal is filed under section 173(1) of MV Act, against the judgment and award dated 20.02.2016 passed in MVC No.47/2015 on the file of the Additional Senior Civil Judge, MACT, Srirangapatna, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Admission, this day the Court delivered the following:
JUDGMENT This appeal has been filed by the appellants- claimants challenging the impugned judgment and award dated 20.02.2016 passed by the Additional Senior Civil Judge, MACT, Srirangapatna (for short ‘the Tribunal’), in M.V.C.No.47/2015 whereby the Tribunal has awarded a total sum of Rs.3,38,480/- together with interest at 9% p.a. from the date of claim petition till realization in favour of the appellant-claimant who sustained injuries in the accident that occurred on 27.11.2013.
2. Though the matter is listed for admission, with the consent of learned counsel for the parties, the matter is taken up for final disposal.
3. Both the counsels submit that the occurrence of accident as well as the coverage of the policy of the offending vehicle by the Insurance Company is not in dispute and this appeal is restricted to quantum of compensation awarded by the Tribunal.
4. By the impugned judgment and award, the Tribunal has awarded a total sum of Rs.3,38,480/- as compensation towards injuries sustained by the appellant in the accident. The Tribunal also came to the conclusion that the appellant was guilty of the contributory negligence and thereby deducted 10% of the said amount towards contributory negligence. Accordingly, the Tribunal awarded a sum of Rs.3,04,632/- together with interest at 9% p.a. from the date of claim petition till realization.
5. Aggrieved by the said impugned judgment and award, the claimants prefer this appeal before this Court.
6. Learned counsel for the appellant-claimant submits that the Tribunal has committed an error in coming to the conclusion that the guilty of the contributory negligence of the appellant-claimant and thereby deducting 10% on the part of the appellant- claimant without appreciating the material on record would clearly establish that the appellant-claimant was not guilty of contributory negligence. It was further contended that the Tribunal has committed an error in taking the notional income of Rs.6,500/- p.m. without considering or appreciating the Lok Adalat guidelines which stipulates that in respect of accident that occurred during the year 2013, notional income should be taken as Rs.8,000/- p.m. Consequently, the compensation awarded under the head loss of income due to permanent disability and loss of income during treatment period is also on the lower side and the same requires enhancement.
7. The learned counsel appearing for the appellant-claimant would also contend that the sums of Rs.30,000/-, Rs.10,000/- and Rs.10,000/- awarded by the Tribunal under the heads ‘Food, diet etc.’, ‘future medical expenses’ and ‘loss of amenities’ are also highly insufficient and meager and the same deserve to be enhanced. It is therefore contended that the appellant deserves enhancement of the compensation in addition to the compensation awarded by the Tribunal.
8. Per contra, learned counsel for the respondent-Insurance Company would support the impugned judgment and award passed by the Tribunal.
9. I have heard the learned counsel for the parties and perused the material on record.
10. A perusal of the impugned judgment and award would indicate that the appellant was guilty of the contributory negligence and that 10% was deducted towards the contributory negligence on the part of the appellant-claimant. The material on record would also establish that the appellant-claimant was guilty of contributory negligence and the said finding of fact recorded by the Tribunal does not warrant interference by this Court.
11. As rightly contended by the learned counsel for the appellant-claimant, the Tribunal has committed an error in taking the notional income of the appellant- claimant as Rs.6,500/- p.m. without considering or appreciating the Lok Adalat guidelines which stipulate that in respect of accident that occurred during the year 2013, the notional income has to be taken as Rs.8,000/- p.m. Accordingly, the appellant-claimant would be entitled to an additional enhanced compensation in a sum of Rs.28,080/- under the head ‘loss of income due to permanent disability’ as hereunder:
8,000x12x13x12/100 = Rs.28,080/- (Rs.1,49,760/- - Rs.1,21,680/-) consequent to my finding that the notional income has to be taken as Rs.8,000/- p.m., the appellant would also entitled to an additional enhanced sum of Rs.4,500/- towards ‘loss of income during laid up period’.
12. The material on record and the impugned judgment and award passed by the Tribunal would also indicate that having regard to the fact that the appellant-claimant was inpatient for a period of 41 days and the evidence of doctor would indicate that expenditure was involved for ‘future medical treatment, I am of the opinion that the appellant-claimant would be entitled to an additional enhanced compensation in a sum of Rs.10,000/- each under the heads viz., Food, diet, etc, ‘future medical expenses’ and ‘loss of amenities’. Accordingly, the appellant-claimant is entitled to additional enhanced compensation which has to be reworked as under:
Nourishment, conveyance and other incidental expenses 4 Towards Future Rs. 20,000.00
13. As stated above, the appellant being guilty of contributory negligence, 10% of this amount has to be deducted. Accordingly, the appellant-claimant would be entitled to a total compensation of Rs.3,60,954/-. The Tribunal having awarded a sum of Rs.3,04,632, the appellant-claimant would be entitled to an additional compensation in a sum of Rs.56,322/- together with interest @ 6% p.a. from the date of claim petition till realization.
14. In view of the aforesaid discussion, I pass the following:
ORDER (i) The appeal is partly allowed.
(ii) The impugned judgment and award dated 20.02.2016 passed by the Additional Senior Civil Judge, MACT, Srirangapatna in M.V.C.No.47/2015 is hereby set aside.
(iii) The appellant-claimant is entitled to additional enhanced compensation of Rs.56,322/- which shall carry interest at 6% p.a. from the date of claim petition till realization.
(iv) The enhanced compensation amount together with interest to be released in favour of the appellant No.2.
Sd/- JUDGE SSD