IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.2814 OF 2015 (MV) BETWEEN:
S.R. DAYANAND S/O. LATE RAMACHANDRAIAH AGED ABOUT 33 YEARS R/AT 138, 2ND CROSS BADRAPPA LAYOUT MARUTHINAGAR BENGALURU – 560094. ... APPELLANT (BY SRI.VENUGOPAL G.M FOR SRI.KALYAN R., ADVOCATES) AND:
1. THE NATIONAL INSURANCE CO. LTD. REGIONAL OFFICE NO.144, “SHUBHAM COMPLEX” 2ND FLOOR, M.G.ROAD BENGALURU – 560 001 2. K.P.BOLLIKATTI S/O. K.A. PONNAPPA NO.77, 2ND CROSS “KAVERI NILAYAM” BADRAPPA LAYOUT NAGASHETTIHALLI BENGALURU – 560 094 ... RESPONDENTS (BY SMT. H.R. RENUKA, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH V/O. DTD.20.02.2018) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 10.12.2014 PASSED IN MVC NO.6093/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant is before this Court in this appeal under Section 173(1) of the Motor Vehicles Act, 1988 praying for enhancement, not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 10.12.2014 in M.V.C.No.6093/2012 on the file of the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bangalore.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental injuries suffered in a road traffic accident occurred on 11.11.2013. It is stated that on 11.11.2013 at about 1.30 a.m., when the claimant along with his mother were going in a car bearing Reg.No.KA-04-MH- 3673, the driver of the said car drove the same in a rash and negligent manner and lost control over the vehicle and dashed to a road side tree. As a result, claimant suffered grievous injuries. Immediately, he was shifted to Government Hospital, Chikkanayakanahalli and thereafter, he was shifted to M.C.Orthopedic Centre, Tumkur. Later, he was shifted to M.S.Ramaiah Memorial Hospital, Bangalore. It is stated that he has taken treatment as inpatient for 10 days. He was aged 32 years as on the date of accident. The claimant was incharge of M/s SKB Chicken Center and was earning Rs.15,000/- per month.
3. On service of notice, respondent No.1- Insurance Company appeared before the Tribunal and filed its statement of objections contending that the alleged accident has not occurred due to rash and negligent driving of the driver and occurred only due to mechanical defect. It is also stated that the claimant and his mother were the gratuitous passengers in that car.
4. The claimant examined himself as PW-1 and also examined PW-3 and PW-4 Doctors in support of his case apart from marking documents Ex.P1 to Ex.P20. Respondent examined RW-1 and marked Ex.R1 to Ex.R7.
5. The Tribunal on scrutinizing the material on record awarded total compensation of Rs.3,36,200/- with interest at the rate of 8% p.a., on the following heads:
laid up period & rest period 4. Nourishment, 15,000
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard learned counsel for the appellant and learned counsel for respondent No.1-Insurance Company. Perused the entire materials on record.
7. Learned counsel for the appellant submits that the compensation awarded by the Tribunal is on the lower side. He submits that even though Doctor-PW.3 has opined that the claimant has suffered disability to the extent of 38% to the right upper and the lower limbs and 17% to the whole body, without there being any reason, Tribunal has assessed the disability at 10%. It is his further submission that the income assessed by the Tribunal at Rs.6,000/- per month is also on the lower side. He submits that the claimant was earning Rs.15,000/- per month. Further it is submitted that the compensation awarded on various heads are also on the lower side. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.1-Insurance Company submits that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference.
9. The claimant was aged 32 years as on the date of accident. The claimant states that he was working as incharge of M/s SKB Chicken Center and was earning Rs.15,000/- per month for which the claimant has not produced any material to indicate that he was incharge of M/s SKB Chicken Center and was earning Rs.15,000/- per month. In the absence of material to indicate the exact income, the income is to be assessed notionally. The income assessed notionally at Rs.6,000/- by the Tribunal is on the lower side. This Court and the Lok Adalath while settling the accident claims of the year 2013 would normally take the notional income at Rs.8,000/-. In the instant case also, in the absence of any material on record to indicate the exact income, I deem it appropriate to take notional income at Rs.8,000/- per month.
10. Learned counsel for the appellant contends that the disability assessed by the Tribunal at 10% is against the Doctor evidence. PW.3-Doctor has assessed the whole body disability at 17% and disability to a particular limb at 38%. The claimant has suffered fracture of clavicle bone with displacement and fracture of right femur with displacement. PW.2 is not a treated Doctor and he has stated in his cross-examination that for the first time he examined claimant on 08.09.2014. The Tribunal, looking into the evidence of PW.3-Doctor and on examination of medical records has rightly assessed the whole body disability at 10%, which needs no interference.
11. The compensation awarded on the head of ‘loss of amenities’ is on the lower side when compared to the injuries suffered and treatment taken. Hence, the same needs to be enhanced partially. As the income of the claimant is assessed at Rs.8,000/-, the claimant would be entitled to the enhanced compensation under the head ‘loss of income’ during the laid up period. Thus, the claimant would be entitled for the modified enhanced compensation as follows:
12. Thus the claimant would be entitled for a total compensation of Rs.3,88,600/- as against Rs.3,36,200/- awarded by the Tribunal with interest as awarded by the Tribunal. The appeal is allowed in part and the judgment and award passed by the Tribunal is modified to the above extent.
Sd/- JUDGE PYR