IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.8142/2014 [MV] BETWEEN:
RAVI S/O DODDATHAMMEGOWDA AGED ABOUT 34 YEARS R/O THANDRE KOPPALU VILLAGE MIRLE HOBLI K R NAGARA TQ MYSORE DISTRICT NOW R/O RANGANATHA NAGARA S R PATNA TOWN MANDYA DIST-571415.
(BY SRI.SREENIVASAN M Y, ADV.) AND:
1. PRAVEEN G S S/O SRINIVAS MAJOR R/O OLD STREET, ALUR HASSAN DISTRICT-573213.
2. THE BRANCH MANAGER UNIVERSAL SAMPO GENERAL INSURANCE CO. LTD., REGD. CORPORATE OFFICE UNIT 401, 4TH FLOOR SANGAM COMPLEX 127, ANDHERI KURLA ROAD ...APPELLANT ANDHERI (EAST) MUMBAI-400059.
…RESPONDENTS (BY SRI.H.N.KESHAVA PRASHANTH, ADV. FOR R2 R1-NOTICE D/W V/O DT:31.01.2015) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.08.2014 PASSED IN MVC NO.1460/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATTANA, 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 praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 30.08.2014 passed in MVC No.1460/2012 on the file of Principal Senior Civil Judge and MACT, Srirangapattana.
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 27.08.2012 when the claimant was traveling in the lorry bearing Reg.No.KA-46-3405 along with his house hold utensils and things from Sathimangala to Thandrekoppalu Village, at K.R. Nagara Taluk the driver of the said lorry drove in high speed, rash and negligent manner, as a result of which he lost control and dashed the lorry to a tree. Due to the impact the claimant sustained fracture of shaft of humerus right lower 1/3rd right hand, right thigh and other injuries. Immediately he was shifted to Government Hospital, Chamarajanagara and subsequently to K.R. Hospital, at Mysore, wherein he took treatment as inpatient from 28.08.2012 to 05.09.2012. It is stated that the claimant was working in Rajadhani Bakery and earning Rs.15,000/- per month, in addition he was earning Rs.5,000/- from doing agriculture work.
3. On issuance of summons, respondents 1 and 2 appeared before the Tribunal and filed their objections. Respondent No.1 in his objection stated that the Lorry was insured with the 2nd respondent – Insurance Company and the policy was in force as on the date of accident. Respondent No.2 in its objections denied the petition averments and further contended that the claimant was traveling in the goods vehicle and he was not traveling along with goods vehicle and he is not supposed to travel as passenger in the goods lorry. Hence he is not entitled for any compensation. Further it is stated that the driver of the lorry was not holding 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 apart from marking documents Exs.P1 to P19. The Tribunal on appreciating the material on record awarded compensation of Rs.1,74,400/- with interest at 6% p.a.
from the date of petition till the date of realization on the following heads :-
1. Pain and suffering 14,000/-
2. Medical expenses 8,000/-
3. Food, attendant etc., 8,000/-
4. Loss of income laid up 10,000/-
5. Future loss of income 1,34,400/-
Total Rs.1,74,400/-
While awarding the above compensation the Tribunal assessed the monthly income of the claimant at Rs.5,000/- and assessed the whole body disability at 14%. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the Tribunal committed an error in assessing the income of the claimant at Rs.5,000/- per month. He submits that the claimant stated that he was working in Rajadhani Bakery and earning Rs.15,000/- per month and in addition Rs.5,000/- per month from doing agriculture. Thus he was earning Rs.20,000/- per month. But the Tribunal without there being any reason assessed the monthly income of the claimant at Rs.5,000/- per month, which is on the lower side. Further he submits that the claimant suffered fracture of shaft of humerus right lower 1/3rd right hand, right thigh and other injuries. It is stated that he was inpatient from 28.08.2012 to 05.09.2012 and compensation awarded on the head pain and suffering and loss of future enjoyment is on the lower side. It is his submission that the Tribunal failed to award any compensation on the head loss of income during laid up period. Thus he 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 needs no interference. He further submits that looking to the nature of injuries suffered, treatment taken and the Doctor’s evidence the Tribunal rightly assessed the whole body disability at 14%.
7. Having heard the learned counsels for the parties and on perusal of the material on record, the only point that arise for consideration is as to “Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?” Answer to the said point is in the affirmative for the following reasons :
The occurrence of the accident on 27.08.2012 involving Lorry bearing Reg.No.KA-46.3405 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 Doctor has assessed the disability to a particular limb at 44.5% to a particular limb, but the Tribunal assessed the whole body disability at 14%, which does not call for interference. Since always whole body disability is assessed at 1/3rd of the disability to a particular limb. With regard to the assessment of income by the Tribunal at Rs.5,000/- per month, learned counsel for the claimant states that he was working at Rajdhani Bakery and earning Rs.15,000/- and in addition he was earning Rs.5,000/- by doing agriculture work. Totally he was earning Rs.20,000/- per month. But the claimant has not placed on record any material to suggest that he was working at Rajdhani Bakery and was earning Rs.15,000/-. In the absence of any material to indicate avocation and income of the claimant, the Tribunal assessed the notional income at Rs.5,000/- per month, which is on the lower side. This Court and Lok Adalath while settling the accidental claims of the year 2012 would no rmally take notional income of Rs.7,000/- per month. Even a coolie would have earned Rs.300/- per day in the year 2012. Taking note of the same the income of the claimant could be assessed notionally at Rs.7,000/- per month. Admittedly, the claimant was inpatient from 28.08.2012 to 05.09.2012. PW.2 – the Doctor has stated that the claimant suffered the above mentioned injuries. Looking to the injuries suffered the claimant would be entitled for another sum of Rs.10,000/- on the head ‘loss of amenity’ and another sum of Rs.6,000/- on the head ‘pain and suffering’. Looking to the injuries suffered and treatment taken, definitely the claimant would have been out of employment for minimum of three months. Therefore, the claimant would be entitled for Rs.21,000/- (Rs.7,000/- x 3) on the head ‘loss of income during laid up period’. Thus the claimant would be entitled for the following modified compensation:-
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.2,65,160/- as against Rs.1,74,000/- 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