IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.278/2016 (MVC) BETWEEN:
SHABBIR M KAGALAWALA @ SHABBIR S/O M H A KAGALWALA, AGED 40 YEARS, R/AT NO.1059, 50 FT.MAIN ROAD, 1ST STAGE, KUMARASWAMY LAYOUT, BENGALURU-560 078 ... APPELLANT (BY SRI. K V SHYAMAPRASADA, ADV.) AND 1. M/S IFFCO -TOKIO GENERAL INSURANCE CO LTD., K S C M F BUILDING, 3RD FLOOR, BLOCK NO.8, CUNNINGHAM ROAD, BENGALURU-560 001 NOW AT # 141, 3RD MAIN ROAD, KASTURINAGAR, SRI SHANTHI TOWERS, 5TH FLOOR, BENGALURU-560 043, REPRESENTED BY ITS MANAGER 2. M/S. PAVAGADA SOUHARDA CREDIT CO-OPERATIVE LTD., HEBBAGODI, BANGALORE-563101, REPRESENTED BY ITS MANAGER ... RESPONDENTS (BY SRI S V HEDGE MULKHAND. ADV.) NOTICE TO R2 DISPENSED WITH THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.10.2015 PASSED IN MVC NO.1627/14 ON THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE & 28TH ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant challenging the judgment and award dated 1.10.2015 passed by the MACT, Bengaluru in MVC 1627/2014.
2. Brief facts of the case:
On 23.7.2011 at about 6.25 p.m. when the claimant was riding his motorcycle bearing Registration No.KA-05-EN-1293 from Bommanahalli towards Bommasandra on Hosur Main Road, when he reached near Veerasandra Toll Gate and was taking turn from Electronic City service road, the rider of another motorcycle bearing Registration No.KA-51-S-
7454 came in a rash and negligent manner and dashed against his motorcycle. As a result, he sustained injuries and immediately he was shifted to the hospital. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support his case, he examined himself as PW-
1 and one Dr.Nagaraj as PW-2, and submitted 18 documents. On the other hand, the Insurance Company neither examined any witnesses nor produced any documents. After appreciation of the evidence, the Tribunal granted compensation of 1,00,000/- with interest at 6% p.a. Being aggrieved by the same, the present appeal is filed.
3. The learned counsel for the claimant submits that as per the wound certificate Ex.P-6, the claimant has sustained closed fracture of both bones of right leg middle 3rd lower junction. The doctor has been examined as PW-2 and in his evidence he has stated that claimant has suffered 30% disability to right lower limb and 10% disability to whole body. But the Tribunal is unjustified in not granting any compensation under the head “loss of future income”. Further, a meager compensation of Rs.15,000/- has been awarded under the head "loss of amenities". Therefore, he prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company submits that even though the claimant has claimed that he was doing business and earning Rs.20,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal is justified in not granting any compensation under the head “loss of future income”. Further, the fractures are re-united. The Tribunal, on appreciation of oral and documentary evidence, has granted just and reasonable compensation. Therefore, he prays for dismissal of the appeal.
5. Heard the learned counsel for the parties.
Perused the records.
6. It is not in dispute that the claimant had sustained closed fracture of both bones of right leg middle 3rd lower junction in a road traffic accident occurred on 23.7.2011. PW-2 doctor in his evidence has stated that the claimant has suffered 30% disability to right lower limb and 10% to whole body. PW-1 in his deposition has stated that he cannot lift heavy weights, cannot run, walk fast, bend his right leg, sit and squat on the floor, climb staircase etc. Further, he has deposed that he is unable to carry out his day to day activities as he used to do earlier to the date of accident. In the cross-examination, the respondent-Insurance Company has not elicited any information from the claimant. Under the circumstances, the Tribunal is unjustified in not granting any compensation under the head “loss of future income”. The claimant is entitled for compensation under the said head.
The claimant claims that he is the proprietor of M/s. Zain Metal Corporation and he has monthly income of Rs.25,000/-. But he has not produced any valid documents such as licence to run the business to prove his income. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2011, the income should be taken notionally as Rs.6,500/- per month. Therefore, the learned Tribunal is unjustified in assessing the claimant’s income as merely Rs.6,000/- per month. Therefore, this Court enhances the claimant’s income from Rs.6,000/- to Rs.6,500/- per month.
The claimant is aged about 35 years at the time of accident, and the multiplier applicable to his age group is 16. His income is assessed at Rs.6,500/- per month. PW-2, doctor in his evidence has stated that claimant has suffered disability of 30% to the lower limb and 10% to the whole body. Therefore, the ‘loss of future income’ works out to Rs.1,24,800/- (6,500 x 12 x 16 x 10%).
7. Considering the nature of injuries and an amount of discomfort and unhappiness, the claimant has to undergo in his life, this Court enhances the compensation from Rs.15,000/- to Rs.25,000/- under the category of "loss of amenities".
8. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 1.10.2015 passed by the MACT, Bengaluru in MVC 1627/2014, stands modified. The claimant is entitled to receive the following compensation:
9. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying his identity.
Sd/- JUDGE DM