IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.2427/2013 [MV] BETWEEN:
RAYANNA S/O MOOKA PALAIAH @ PAPAIAH AGED ABOUT 38 YEARS LABOR IN BOREWELL LORRY R/O HAVALENAHALLI VILLAGE BANGARAKKANAHALLY POST CHITRADURGA TALUK 577 501.
(BY SRI HARISH N.R., ADV. FOR SRI.B M SIDDAPPA, ADV.) AND:
1. C. NIVAS PRATHAP KUMAR S/O CHINNU SAMY MAJOR OWNER OF THE LORRY BEARING REG. NO. KA- 01- MQ -7227 R/O. 61, GOUNDAM PALAYAM NAMAKKAL DISTRICT TAMILNADU-638 182.
2. THE DIVISION MANAGER THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE A. M. ARCADE NEAR VIDYARTHI BHAVAN ...APPELLANT C G HOSPITAL ROAD DAVANAGERE- 577 001.
(BY SRI. A N KRISHNASWAMY, ADV. FOR R2) R1 – SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.12.2012 PASSED IN MVC. NO.158/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT- VI, CHITRADURGA, 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 not being satisfied with the quantum of compensation awarded under the judgment and award dated 13.12.2012 passed in MVC No.158/2011 on the file of II Additional Senior Civil Judge and Additional MACT-VI, Chitradurga.
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 25.12.2010 when the claimant was discharging his legitimate duty by standing on the backside of the Borewell lorry bearing Reg.No.KA-01- MQ-7227, the driver of the borewell lorry drove the same in a rash and negligent manner, without giving any signal towards backside, as a result the claimant fell down and sustained grievous injuries. Immediately he was shifted to Basaveshwara Hospital, Chitradurga and subsequently to City Central Hospital, Davanagere, wherein he was inpatient from 25.12.2010 to 25.01.2011. It is stated that he was working as a labourer and was earning Rs.8,000/- per month and Rs.100/- per day as daily bata.
3. On issuance of summons, respondents 1 and 2 appeared before the Tribunal. The 1st respondent is the owner of the offending vehicle. He admits that the claimant was working under him and was paying Rs.6,000/- per month and Rs.75/- per day as daily bata. He further contended that the vehicle is insured with the 2nd respondent – Insurance Company. The 2nd respondent-insurer filed its statement and contended that the driver of the said vehicle had no valid and effective driving licence as on the date of accident. The claimant examined himself as PW.1 and examined the Doctors as PWs.2 and 3 apart from marking Exs.P1 to 248. Respondent marked Ex.R.1 – copy of the policy.
The Tribunal on appreciating the material placed before it awarded total compensation of Rs.3,47,813/- on the
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 learned counsel for the respondent – Insurer. Perused the entire material on record including the lower court records.
5. The learned counsel for the appellant would submit that the income assessed by the tribunal at Rs.3,000/- is on the lower side. He submits that the claimant was earning Rs.8,000/- per month and Rs.100/- per day as bata by working as labourer in the Borewell lorry. He further submits that the 1st respondent – owner has admitted in his written statement that he was paying a sum of Rs.6,000/- per month to the claimant and Rs.75/- per day as daily bata. Therefore, his income ought to be assessed at minimum of Rs.8,000/- per month. Further the learned counsel submits that the claimant has suffered four fractures and the doctor has opined that the claimant suffers 25% disability to upper limb and 24% to the lower limb. The Tribunal without there being any reason has assessed the whole body disability at 15% and referring to Exs.P.9 and P.10 prays for revising the whole body disability at 25%. It is also submitted that the compensation awarded by the Tribunal on the head of amenities, traveling expenses, conveyance, attendant charges are on the lower side and prays for enhancing the same.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation which requires no interference. Further he submits that the Tribunal looking to the nature of injuries, the Doctor’s evidence and medical records has rightly assessed the whole body disability at 15% which also needs no interference. He refers to evidence of PW.3 – the Doctor and also Exs.P9 and P10 the disability certificates and submits the Doctor had opined that whole body disability is 15 – 20%, which the Tribunal has rightly assessed at 15%. Thus he prays for dismissal of the appeal.
7. Having heard the learned counsels for the parties and on perusal of the material placed on record including the lower court records, the points that arise for consideration is as to “a. Whether the income assessed by the Tribunal at Rs.3,000/- per month is just and proper ?
b. Whether the whole body disability assessed by the Tribunal at 15% is just and proper ?
c. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
8. Answer to points (a) and (c) is in the negative and point (b) is in the affirmative for the following reasons :
The occurrence of the accident on 25.12.2010 involving Borewell Lorry bearing Reg.No.KA-01-MQ- 7227 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 claimant states that he was earning Rs.8,000/- per month and Rs.100/- per day as daily bata. No material is placed on record to indicate the exact income of the claimant. In the absence of any material or evidence on record to indicate the exact income, the Tribunal assessed the notional income at Rs.3,000/- per month, but the said assessment of income by the Tribunal is on the lower side. The learned counsel points out that the owner of the lorry has stated that the claimant was being paid Rs.6,000/- per month and Rs.75/- per day as daily bata. To substantiate the same no document is placed on record. As such the claimant’s income is to be determined notionally. This Court and Lok Adalath while settling the accident claims of the year 2010 would normally take notional income of Rs.5,500/- per month. In the absence of any document to substantiate the claimant’s exact income, in the present case, it would be appropriate to take the notional income at Rs.5,500/- per month for determining the compensation on the head ‘Loss of future income’.
The Tribunal assessed the whole body disability at 15%. PW.3 is the treated Doctor. Claimant was inpatient from 25.12.2010 to 25.01.2011 for nearly 30 days. The claimant had suffered abrasion over the right upper arm and also on the left side chest, fracture of left fore arm, injuries of Traumatic Diaphragmatic Rupture (Lt), Both Bones of left upper limb, lumber vertebrae/bilateral acetabular, Haemoperitoneum. PW.2 who had issued Ex.P10, the disability certificate, was of the opinion that the claimant suffered 25% disability to upper limb and 24% to lower limb, whereas PW.3 - the Doctor in his evidence stated the claimant suffered 15 – 20% whole body disability. Ex.P.9 is the disability certificate issued by PW.3 – the treated Doctor. Ex.P.9 would indicate 15 – 20% whole body disability. Taking note of the entire evidence of PWs.2 and 3 – the Doctors, the nature of injuries suffered and the medical records, the Tribunal has rightly assessed whole body disability at 15%, which needs no interference.
9. Looking to the nature of injuries suffered, treatment taken as inpatient for 30 days and the surgery undergone, the compensation awarded on the head of amenities, traveling expenses, conveyance diet are on the lower side. The claimant would be entitled for another Rs.10,000/- in addition to Rs.5,000/- awarded by the Tribunal on the head conveyance, attendant charges and diet. The Tribunal has awarded only Rs.5,000/- towards future amenities. Looking to the injuries suffered i.e., fracture of both bone of fore arm another Rs.15,000/- is awarded on the head of future amenities. The Tribunal failed to award any compensation on the head loss of income during laid up period. Looking to the injuries suffered, fracture of forearm, the claimant would have been out of employment for minimum of three months, hence he would be entitled to loss of income during laid up period at Rs.16,500/- (Rs.5,500/- x 3 = Rs.16,500/). Thus the
10. 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.4,52,313/- as against Rs.3,47,813/- 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