IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2502 OF 2013 (MV) BETWEEN:
VASEEM, S/O. SHARIFF, AGED ABOUT 20 YEARS, R/O. AMBEDKAR NAGAR, HASSAN – 573 201.
(BY MISS. HAMSA NATRAJ, ADVOCATE FOR SRI. SUMANTH L BHARADWAJ, ADVOCATE) AND:
1. RIYAZ PASHA, S/O. MOOSA RAZAQ, MAJOR, RTC TRANSPORT NATIONAL COMPLEX, BASAVA CIRCLE, B.M.ROAD, HASSAN – 573 201.
2. THE MANAGER, UNITED INDIA INS CO LTD, BRANCH OFFICE, VENKATESHWARA BUILDING, B.M.ROAD, HASSAN – 573 201.
... APPELLANT ... RESPONDENTS (BY SRI. M.U. POONACHA, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 22/2/2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.8.2012 PASSED IN MVC NO.254/2012 ON THE FILE OF THE PRESIDING OFFICER & ADDL. MACT, FAST TRACK COURT-I, HASSAN, 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, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 29/08/2012 in M.V.C.No.254/2012 on the file of the Presiding Officer & Additional MACT, Fast Track Court-I, Hassan.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 05-10-2011, when the claimant after finishing his work was going along with his sister’s son, a Motor bike bearing No.KA-19-L-8097 came in a high speed with rash and negligent manner and dashed against the claimant. As a result, the claimant sustained injuries. Immediately, he was shifted to Mangala Hospital, Hassan, wherein he took treatment as inpatient for about 2 months. It is stated that the claimant was doing mechanical work and was earning a sum of Rs.15,000/- per month. He was aged 20 years as on the date of accident.
3. On issuance of notice, respondent No.1 remained absent. Respondent No.2-Insurer appeared before the Tribunal and filed its written statement denying the claim petition averments.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-13. No evidence was lead on behalf of the respondent-insurer.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.1,23,000/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and sufferings 20,000 2. Medical expenses 25,000 3. Incidental expenses 6,000 4. Loss of income during treatment 2,000 5. Future loss of earning 60,000 6. Future medical expenses 10,000 Total 1,23,000 While awarding the above compensation, the Tribunal assessed the notional income of the claimant at Rs.4,000/- per month and whole body disability at 7%. 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-claimant and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs.4,000/- per month, is on the lower side. He further submits that the claimant was working as mechanic and was earning Rs.15,000/- per month. It is his further submission that the Doctor-PW-2 has stated that the claimant suffers from 30% disability to a particular limb, whereas the Tribunal erroneously assessed the whole body disability at 7%, which needs to be enhanced. Learned counsel further submits that the Tribunal failed to award any compensation on the head of ‘Amenities’ as the claimant has suffered injury to his right ankle and knee movement is restricted. As such, he would be entitled for compensation on the head of ‘Amenities’. It is further contended that the quantum of compensation awarded by the Tribunal on the various heads are also on the lower side. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent– Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Further, he submits that the Tribunal rightly assessed the whole body disability at 7%. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the income and whole body disability of the claimant assessed by the Tribunal is proper and correct?
2) Whether the claimant would be entitled for enhanced compensation?
Answer to the above points would be in the negative and affirmative respectively for the following reasons.
10. The accident occurred on 05-10-2011 involving Motor bike bearing No.KA-19-L-8097 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. It is stated that the claimant was working as mechanic and was earning Rs.15,000/- per month but no material is placed on record to establish the exact income of the claimant. In the absence of the material/document to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.4,000/- per month, the same is on the lower side. Taking note of the fact that the accident is of the year 2011 and in the year 2011, even a coolie earned more than Rs.200/- per day, which would be Rs.6,000/- per month. This Court and the Lok Adalath while settling the Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011 at Rs.6,500/- per month, wherever there is no material to establish the exact income of the claimant. In the instant case also in the absence of any document/material to indicate the exact income of the claimant, it would be appropriate to assess Rs.6,500/- per month as notional income of the claimant for determination of the compensation.
11. As per evidence of PW-2-Doctor, the claimant has sustained the following injuries:
1. Fracture tibia right.
2. Abrasion right knee.
3. Abrasion fore arm right.
4. Abrasion right chest.
5. Tenderness pelvis.
PW-2-Doctor has stated that the claimant suffers from 30% disability to his right lower limb. Taking note of the avocation of the claimant and the Doctor’s evidence, the Tribunal assessed the whole body disability at 7%, the same is on the lower side. The whole body disability always would be assessed at 1/3rd of disability to a particular limb. In the instant case, if the disability to a particular limb is assessed at 30% then the whole body disability would be at 10%. Accordingly, the whole body disability of the claimant is assessed at 10%. The claimant was inpatient for 5 days for taking treatment for the injuries sustained in the accident. As stated above, the claimant suffered fracture of right tibia and abrasion to right knee, abrasion to right forearm. The Tribunal failed to award any compensation on the head of ‘Loss of Amenities’. Looking to the injuries suffered and treatment taken as inpatient by the claimant, he would be entitled for Rs.20,000/- on the head of ‘Loss of amenities’ and due to the accidental injuries, the claimant would have been out of employment for a minimum of three months, for which, he would be entitled for compensation on the head of ‘Loss of income during the laid up period’. Further, the Tribunal awarded only Rs.6,000/- towards ‘Incidental expenses’, for which, the claimant would be entitled for another Rs.4,000/-. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.)
12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,44,900/- as against Rs.1,23,000/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ