IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2227/2014 [MV] BETWEEN:
Mr.RAMACHANDRA AGED 38 YEARS S/O MUNISWAMAPPA RAGHATTA VILLAGE DODABALLAPUR TALUK BANGALORE DISTRICT. ... APPELLANT (BY SRI.S.R. SREEPRASAD, ADV.) AND:
1. MR.SURESH KUMAR S AGED 50 YEARS SON OF SAMPANGI NO.13, BTM I STAGE HUCHAPPA GARDEN TAVAREKERE MUNESWARA NURSERY BANGALORE-560 029.
2. UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.5, NO.143/144, I FLOOR CKN CHAMBERS, I MAIN ROAD SESHADRIPURAM BANGALORE-20.
... RESPONDENTS (BY SRI JWALA KUMAR, ADV. FOR R2 R1- NOTICE D/W V/O DTD:05.10.2018) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2014 PASSED IN MVC NO.15/2011 ON THE FILE OF THE PRL.DISTRICT & SESSIONS JUDGE, CHIKKABALLAPUR, 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 before this Court in this appeal, not being satisfied with the quantum of compensation awarded under the judgment and award dated 30.01.2014 in MVC No.15/2011 on the file of the District and Sessions Judge, Chikkaballapur (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1989 claiming compensation for the injuries sustained in the motor vehicle accident. It is stated that on 12.12.2010, when the claimant was proceeding in his motorcycle bearing registration No. KA-43/K-787, the first respondent, in his vehicle came in a rash and negligent manner and dashed to the claimant, due to which, the claimant suffered grievous injuries. Initially he was treated at Government Hospital, Chikkaballapur and thereafter at Sanjay Gandhi Hospital, Bangalore and from there he was shifted to Columbia Asia hospital at Bangalore. It is stated that he was aged about 35 years as on the date of accident and was earning Rs.25,000/- p.m., by doing agricultural work and milk vending business.
3. On issuance of summons, the respondents appeared before the Tribunal, but only the second respondent/insurer filed its objection denying the claim petition averments. It is stated that the accident occurred solely due to the negligent riding of the claimant. Further, it is stated that the offending vehicle was not having valid insurance policy.
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.P26. The respondents neither examined any witnesses nor marked any documents in support of their case.
5. The Tribunal, on appreciating the material placed before it awarded total compensation of Rs.1,76,281/-
7. Loss of income due to permanent disability :: Rs. 61,200 Total Rs.1,76,281 Further, the claimant was awarded a sum of Rs.10,000/- towards future medical expenses. The claimant not being satisfied with the quantum of compensation is before this Court praying for enhancement of compensation.
5. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
6. Learned counsel for the appellant would submit that the compensation awarded by the Tribunal when compared to the injuries suffered by the claimant is on the lower side. He submits that the claimant was earning more than Rs.25,000/- per month by doing agricultural work and milk vending business. But, the Tribunal assessed his income at Rs.5,000/- per month which is on the lower side. Further he submits that the doctor in his evidence has stated that the claimant suffers whole body disability at 16%, but the Tribunal has assessed the whole body disability at 6% as against the evidence of doctor, which requires to be enhanced. He further submits that the claimant was inpatient for a period of 4 days and the compensation awarded on the head of attendant charges, diet, food and nourishment and miscellaneous charges is on the lower side which needs to be enhanced.
7. Per contra, learned counsel for the respondent/insurer submits that the compensation awarded by the Tribunal is just compensation which needs no interference. Further he submits that the Tribunal has rightly assessed the whole body disability at 6%. The doctor in his evidence has stated that the claimant suffers 2% disability to right knee, 4% disability to the right ankle and 10% disability to leg which are to the particular limbs. Taking overall injuries suffered by the claimant and treatment taken, the Tribunal has rightly assessed the whole body disability at 6%, which needs no interference.
8. On hearing the learned counsel for the parties and on perusal of the material, the only point which arises for consideration in this appeal is as to whether the claimant would be entitled for enhancement of compensation? The claimant would be entitled for partial enhancement of compensation.
9. The accident occurred on 12.12.2010 involving the two wheeler bearing No.KA-43/K-787 and first respondent’s vehicle and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is in appeal praying for enhancement of compensation. It is the case of the claimant that he was owning two acres of grape garden and working at grape garden and milk vending he was earning Rs.25,000/-
p.m. In support of his contention he has produced Ex.P17 to Ex.P21, RTCs and Dairy Pass books, but, nowhere in the evidence, the claimant has stated that his income subsequent to accident was reduced. The claimant ought to have established that his milk vending business has been affected due to the accidental injuries and his income has been reduced. He has not placed any material on record to that effect. In the absence of any material to indicate the exact income, the Tribunal assessed the income of the claimant at Rs.5,000/- notionally, which is on the lower side.
10. The accident is of the year 2010. This Court and Lok Adalath while settling the accident claims of the year 2010 would normally assess the income at Rs.5,500/- p.m. In the present case also, in the absence of any material to indicate the exact income of the claimant, notional income of Rs.5,500/- per month could be assessed. The claimant has suffered fracture of left tibia and fibula which are grievous injuries. P.W.2-doctor in his evidence has stated that the claimant suffers 2% disability to right knee, 4% disability to right ankle and 10% to the leg. On perusal of the evidence of doctor, the disability of 16% is for particular limbs and not for whole body. When the doctor has stated 16% disability to different limbs, the Tribunal has rightly taken 1/3, which comes to 6%, which is appropriate and needs no interference.
11. Admittedly, the claimant was inpatient for a period of 4 days. Looking to the nature of injuries, treatment taken and evidence of the doctor, the compensation awarded on the head of attendant charges, food and nourishment and miscellaneous charges is on the lower side and the claimant would be entitled for a sum of Rs.15,000/- on those heads. The Tribunal failed to award compensation on the head of loss of amenities.
As the claimant has suffered fracture of both bones of left leg, tibia and fibula, he would be entitled for a sum of Rs.20,000/- on the head of loss of amenities. Looking to the fracture suffered by the claimant, he would have been out of employment for minimum of three months. Hence, he would be entitled for compensation towards loss of income during the laid up period at Rs.16,500/-. Thus, the claimant would be entitled for modified compensation as follows:
Hence, the claimant would be entitled to total compensation of Rs.3,06,421/- as against Rs.1,76,281/- awarded by the Tribunal with interest at the rate of 6% p.a., from the date of petition till realization.
12. Accordingly, the appeal is allowed in part and the judgment and award dated 30.01.2014 in MVC No.15/2011 on the file of the District and Sessions Judge, Chikkaballapur is modified to the above extent. The claimant is entitled to enhanced Compensation of Rs.1,30,140/- with interest at the rate of 6% p.a., from the date of petition till realization.
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JUDGE mpk/-* CT:bms