IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF NOVEMBER, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT M.F.A.No.8803/2015 (MV) BETWEEN:
RANJEETH YADAV S/O ARJUN YADAV AGED ABOUT 27 YEARS R/O 17/7, BASAVESHWARA LAYOUT NEAR RAILWAY GATE BENGALURE-94.
(BY SRI.MAHESH SHETTY, ADV.) AND:
...APPELLANT 1. SRIRAM GENERAL INSURANCE CO. LTD ., SL-3RD FLOOR MONARCH CHAMBERS OPP. INFANTRY WEDDING HALL INFANTRY ROAD BANGALORE.
2. CHANDRASHEKHAR N M S/O MANJUNATHA MAJOR R/AT NO.26, NELLIGERE ALUR (T), HASSAN (D) HASSAN-573201.
…RESPONDENTS (BY SRI.H N KESHAVA PRASHANTH, ADV. FOR R1 R2-NOTICE D/W V/O DT:23.10.2017) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.02.2015 PASSED IN MVC NO.5634/2013 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT The claimant is in appeal, not being satisfied with the quantum of compensation awarded under the judgment and award dated 24.02.2015 passed in MVC No.5634/2013 on the file of the Motor Accident Claims Tribunal and 20th Additional Small Causes Judge, Bangalore (hereinafter referred to as 'the Tribunal' for short) and also aggrieved by saddling 25% contributory negligence on the claimant.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries sustained in a road traffic accident. It is stated that on 02.10.2013, when the claimant was proceeding on his motorcycle bearing registration No.KA-50/J-9012 along with one Naresh Yadav, a Tata Winger bearing registration No.KA-46-2487 came in a rash and negligent manner and dashed against the motorcycle, due to which, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Rajmahal Vilas hospital wherein he was treated as inpatient. It is stated that the claimant was working as a driver and was earning more than Rs.10,000/- per month. He was aged about 25 years as on the date of accident.
3. On issuance of notice, respondents No.1 and 2 appeared before the Tribunal and only respondent No.1 filed its statement of objections, denying the claim petition averments. Further, it is contended that the claimant was not having valid and effective driving license as on the date of accident and there is delay in lodging the complaint. However, the insurer admitted the issuance of policy in respect of the offending Tata Winger and further contended that the driver of the Tata Winger had no valid and effective driving license as on the date of accident.
4. The claimant got examined himself as P.W.1 and also examined two more witnesses as P.W.2 and P.W.3 apart from marking the documents Ex.P1 to Ex.P17. The respondent got examined R.W.1 and got marked the documents as Ex.R1 to Ex.R3.
5. The Tribunal, based on the material placed on record awarded total compensation of Rs.3,20,000/- with interest at the rate of 8% p.a., from the date of petition till realization, on the following heads:
4.Loss of income during the laid up period :: Rs. 30,000/-
5. Loss of income due to disability :: Rs.1,30,000/-
6.Future medical expenses :: Rs. 25,000/-
7.Loss of amenities in life :: Rs. 13,000/-
Total Rs.3,20,000/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.7,000/- p.m., and assessed the whole body disability at 9%. Aggrieved by the same, the claimant is in appeal praying for enhancement of compensation.
6. Heard the learned counsel for the parties and perused the material on record.
7. Learned counsel for the appellant/claimant would submit that the claimant was working as a driver and earning more than Rs.10,000/- p.m. The claimant has placed on record, Ex.P9-notarised copy of the driving license and Ex.P10 salary certificate. But the Tribunal, without looking to those documents, assessed the income of the claimant at Rs.7,000/- p.m., which is on the lower side, which needs to be enhanced. Learned counsel further submits that the claimant has sustained fracture of right tibia. P.W.3/Doctor has assessed the disability of 27% to the lower limb and 13.5% to the whole body. But, the Tribunal without there being any reasons, assessed the whole body disability at 9% which is on the lower side, which needs to be enhanced. Further submission of the learned counsel is that the compensation awarded on the head loss of amenities is on the lower side, which needs to be enhanced.
8. Per contra, learned counsel for the respondent/ insurer submits that the compensation awarded by the Tribunal is just compensation which needs no interference. He further submits that the Tribunal taking into consideration the evidence of Doctor and medical records has rightly assessed the whole body disability at 9%, which needs no interference.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that falls for consideration is as to Whether the claimant would be entitled for enhancement of compensation, as prayed?
10. Answer to the above point is in the affirmative for the following reasons:
The accident occurred on 02.10.2013 involving the motorcycle bearing registration No.KA-50/J-9012 and Tata Winger bearing registration No.KA-46/2487 and the accidental injuries suffered by the claimant in this appeal are not in dispute. The claimant’s appeal is for enhancement of compensation. The accident is of the year 2013. The claimant states that he was working as a driver and was earning more than Rs.10,000/- p.m., and he has placed on record Ex.P9-notarized copy of the driving license and Ex.P10-salary certificate. The claimant has proved his avocation as driver. But, Ex.P10-salary certificate is not proved in accordance with law. The claimant has failed to examine the person who issued the salary certificate. In the absence of any material to indicate the exact income, the Tribunal has assessed the notional income of the claimant at Rs.7,000/- p.m., which is on the lower side. This Court and Lok Adalath, while settling the accident claims of the year 2013, would normally assess notional income of Rs.8,000/- p.m. In the present case also, in the absence of any material to indicate the exact income of the claimant, the notional monthly income of the claimant can be assessed at Rs.8,000/- p.m.
11. The claimant has placed on record Ex.P7-wound certificate, Ex.P8-discharge summary and Ex.P14-Case sheet which would indicate the injuries sustained by the claimant and treatment taken by the claimant as inpatient for a period of 7 days. The claimant has suffered fracture of right tibia. The Doctor in his evidence has stated that the claimant suffers from 27% disability to the lower limb and 13.5% to the whole body. Normally, whole body disability will be assessed at 1/3rd of the disability assessed to a particular limb. In the instant case, the Tribunal taking into consideration the disability to a particular limb at 27% has rightly assessed the whole body disability at 1/3rd i.e. at 9%, which needs no interference.
12. Looking to the injuries suffered i.e., fracture of shaft of right tibia, which would cause inconvenience to the claimant/appellant to work as driver, loss of amenities awarded at Rs.13,000/- is on the lower side, which is enhanced to Rs.30,000/-. Thus, the claimant would be entitled to the following modified compensation:
4.Loss of income during the laid up period :: Rs. 32,000/-
5. Loss of income due to disability (8000x12x17x9/100) :: Rs.1,46,880/-
6.Future medical expenses :: Rs. 25,000/-
7.Loss of amenities in life :: Rs. 30,000/-
Total Rs.3,65,880/-
Thus, the claimant would be entitled to total compensation of Rs.3,65,880/- with interest at the rate of 8% p.a., from the date of petition till realization, as against the compensation of Rs.3,20,000/- awarded by the Tribunal.
13. Accordingly, the appeal is allowed in part. The judgment and award dated 24.02.2015 passed in MVC No.5634/2013 on the file of the Motor Accident Claims Tribunal and 20th Additional Small Causes Judge, Bangalore is modified to the above extent. The claimant is entitled to enhanced compensation of Rs.45,880/-.
Sd/- JUDGE mpk/-* CT:bms