IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3423 OF 2013 (MV) BETWEEN:
SMT. REHMATH W/O. MOHAMMED ISAQ A.K. AGED ABOUT 47 YEARS, R/AT: FATHIMA MANZIL, NETKAL HOUSE, ASSAIGOLI POST, KONAJE VILLAGE, MANGALORE TALUK, D.K. DISTRICT, PIN - 575008. ... APPELLANT (BY SRI. G. RAVISHANKAR SHASTRY, ADVOCATE) AND:
1. MR. ISMAIL, S/O. ABDUL JABBAR, R/AT HOUSE NO.2-27 (1) MALLIKATTE HOUSE, MUNDAJE POST, BELTHANGADY TALUK, D.K. DISTRICT. PIN – 574 212.
2. THE NEW INDIA ASSURANCE CO. LTD., OFFICE AT: II FLOOR, CENTENARY BUILDING, G.H.S. ROAD, MANGALORE REPRESENTED BY ITS BRANCH MANAGER PIN – 575002.
... RESPONDENTS (BY SRI. D.S. SRIDHAR, ADVOCATE FOR R2 R1 – SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.8.2012 PASSED IN MVC NO.166/2011 ON THE FILE OF THE MACT-VI & II ADDITINOAL SENIOR CIVIL JUDGE, MACT, MANGALORE, D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under the judgment and award dated 31/08/2012 in M.V.C.No.166/2011 on the file of the MACT-VI & II Additional Senior Civil Judge, Mangalore, D.K.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered by her in a road traffic accident. It is stated that on 12-11-2010, when the claimant was travelling as a pillion rider in the motorcycle bearing Reg.No.KA-21-J-6584, the rider of the vehicle drove the same in a high speed with rash and negligent manner and suddenly applied the break, due to which, the motorcycle capsized on the road. As a result, the claimant sustained grievous injuries. She was shifted to Yenepoya Specialty Hospital, Mangalore. The claimant was aged 45 years as on the date of accident and she was doing household work, by which she was earning Rs.4,000/- per month.
3. On issuance of notice, respondent No.2-Insurance Company appeared before the Tribunal and filed its statement of objections denying the claim petition averments. It is also contended that the rider of the motorcycle was not holding a valid and effective driving license as on the date of accident.
4. The claimant examined herself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-13. Respondent No.2-Insurance Company examined RW-1 and marked two documents Exs.R-1 to R-2.
5. The Tribunal on assessment of the entire material on record, awarded total compensation of Rs.1,85,000/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.)
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurer. Perused the material placed on record including the lower court records.
7. Learned counsel for the appellant would submit that the Tribunal failed to assess the income of the claimant as the claimant was doing household work and earning Rs.4,000/- per month. Further he submits that PW-2-
Doctor has opined that the claimant has suffered whole body disability at 15%. But the Tribunal without there being any reason has failed to consider the whole body disability for awarding compensation. It is his further submission that the compensation awarded on various heads are also on the lower side when compared to the injuries suffered and treatment taken by the claimant. The claimant has suffered the following injuries.
1) Left frontal contusion of head.
2) Left sub-arachnoid hemorrhage and extensive sub- arachnoid hemorrhage-fracture of right occipital and sub- occipital bone and pneumocephalus of right temporal and right frontal bone.
3) Bleeding from nose and right ear and simple injuries to other parts of the body.
8. Per contra, learned counsel for respondent No.2– Insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference.
9. Having heard the learned counsels for the parties and on perusal of the records, the only point which falls for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation. Answer to the said point is in the affirmative and the claimant would be entitled for partial enhanced compensation for the following reasons.
10. The accident occurred on 12-11-2010, accidental injuries suffered by the claimant involving motorcycle bearing Reg.No.KA-21-J-6584 are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that she was earning Rs.4,000/- per month, by doing household work. In the year 2010, even a coolie would earn Rs.200/- per day. When the claimant herself states that she was doing household work and was earning Rs.4,000/- per month, the Tribunal ought to have assessed the income of the claimant at Rs.4,000/- per month. Accordingly, the income of the claimant is assessed at Rs.4,000/- per month notionally. The claimant has suffered the injuries as stated above; she was inpatient from 12-11-2010 to 07-12-2010. The PW-2-Doctor has not stated as to whether the disability is for whole body or for a particular limb. Ex.P-9-Disability certificate would indicate that the claimant suffers 15% disability to the whole body. PW-2- Doctor is not a treated Doctor but he has issued Ex.P-9- Disability certificate. PW-2-Doctor has not stated that as to how the injury would be functional disability which would come in the way of day to day work of the claimant. As such, the Tribunal is justified in not awarding any compensation on the head of ‘Loss of future income’.
11. Learned counsel for the appellant contended that the Tribunal committed an error in saddling the liability on the owner-respondent No.1 on the ground that the rider of the motorcycle was not holding a valid and effective driving license as on the date of accident. It is his further submission that the driving license was issued to the rider of the motorcycle on 22-2-1994 for a period of 20 years or till he attains the age of 50 years, whichever is earlier. As the rider of the motorcycle attained the age of 50 years on 02-5-2010, the driving license got expired and the same was renewed on 23-11-2010. It is not a case of the insurer that the rider of the motorcycle was not holding a driving license at all. The rider of the motorcycle had driving license which was issued on 22-2-1994 for a period of 20 years or till the rider attains the age of 50 years, whichever is earlier. As the rider attained the age of 50 years, the license got expired on 02-5-2010. But the same was renewed on 23-11-2010. As such, I am of the opinion that the present case is a case of pay and recovery. As per the decision of the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD., vs. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297, the respondent-insurer is directed to pay the compensation at the first instance with liberty to recover the same from the owner of the vehicle-respondent No.1.
12. Looking to the injury suffered and treatment taken by the claimant as inpatient for 27 days, I am of view that the compensation awarded on the head of ‘Conveyance, Attendant charges & nourishing food’ are on the lower side. Looking to the injury and treatment taken as inpatient, the claimant would be entitled for Rs.10,000/- on the head of ‘Conveyance’ and Rs.15,000/- on the head of ‘Attendant charges, Nourishing Food & diet’. Further, the Tribunal failed to award compensation on the head of ‘Loss of amenities’ for which, the claimant would be entitled for Rs.20,000/-. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.)
13. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,28,000/- as against Rs.1,85,000/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, appeal is allowed in part.
Sd/- JUDGE SMJ