IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE BELLUNKE A.S.
M.F.A. NO.7910 OF 2011 (MV) BETWEEN:
SHAKTIVEL S/O SUBRAMANI AGED ABOUT 32 YEARS R/O MURUGANAHALLI VILLAGE K EDATHORE POST, KASABA HOBLI HD KOTE TALUK MYSURU DISTRICT-575 003 …APPELLANT (BY SRI. K. RAVISHANKAR, ADVOCATE) AND:
1. RAMESH S/O CHAMEGOWDA AGED ABOUT 35 YEARS R/O SHANTHIPURA HEBBAL P O., H D KOTE TALUK-575 003.
2. SIDDAPPA S/O SIDDAPPA AGED 42 YEARS R/O BOODANUR VILLAGE CHIKKADANAHALLI POST KASABA HOBLI HD KOTE TALUK – 575 003.
3. UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE - I BALLAL CIRCLE CHAMARAJAPURAM MYSURU-570 005. ... RESPONDENTS (BY SRI. B.S. NAGARAJ, ADVOCATE FOR R-1 SRI. RAVISH BENNI, ADVOCATE FOR R-3 NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED 12.06.2017) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.5.2011 PASSED IN MVC NO.206/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This is an appeal by the claimant against the judgment and award dated 19.05.2011 passed in MVC No.206/2009 by the Fast Track Court-II and Additional Motor Accident Claims Tribunal, Mysore seeking enhancement of the compensation 2. The fact of accident, finding of the Tribunal that the accident was due to rash and negligent driving of the offending vehicle and the liability of the Insurance Company to satisfy the award are not in dispute. The finding of the Tribunal that the injured had suffered permanent disability is also not challenged. Therefore, the factual details are not referred.
3. Heard the learned counsel for the parties at length.
4. The dispute appears to be in a very narrow compass with regard to income of the injured person. The Tribunal based on the evidence on record had quantified the compensation payable to the claimant on different heads in the following manner:
Sl.No. Heads Amount (Rs)
5. The learned counsel for the respondent would fairly concede that the petitioner was a coolie by profession. Therefore, income that is adopted in Lok- adalath for settling the matters can be adopted in this case. However, no income is fixed for the year 2007 in the Lok-adalath. For the year 2008, the notional income is taken at Rs.4,500/-.
6. Having heard the learned counsel for the parties, the following point arises for consideration:
Whether the compensation awarded by the Tribunal requires any enhancement?
7. The Tribunal in the absence of evidence to show that the injured was earning Rs.200/- per day, it has taken the income at Rs.3,000/- per month. As contended by the learned Counsel, income that is adopted by the Lok- adalath while settling the matters before it can be adopted whenever there is no documentary evidence on record with regard to income. Documentary evidence to prove the income depends on person to person and the nature of work he does. A coolie or a mason who works on daily wage basis cannot be expected to have documentary proof for their earnings. The fact that the petitioner was 30 years able-bodied person can be said to be a person having capacity to generate income. Therefore, it is appropriate to take the income of the injured relying on the income to be taken by the Lok-adalath while settling the matters before it. It is submitted at the Bar that for the year 2008 the income adopted by the Lok-adalath is Rs.4,500/- p.m. The date of the accident in question is 25.10.2007. Since, there is no fixed figure taken in the Lok-adalath for the year 2007, it is appropriate to take the income of the injured at Rs.4,500/- p.m. If that is taken into consideration, compensation on the head of loss of future earning capacity requires to be reassessed. It is important to note that the finding of the Tribunal that the clamant has suffered disability and is entitled for loss of future income has not been challenged by the Insurance Company by filing another appeal or cross-objection. Therefore, monthly income of the injured is taken at Rs.4,500/-.
8. In view of the fact that the injured has suffered amputation of right toe, I find that disability percentage requires to be reassessed. After going through the findings of the Tribunal, I find that the disability percentage as deposed by the Doctor is exaggerated. Nodoubt, the petitioner had suffered some physical disability on account of fracture suffered in an accident. But, disability cannot be at 54% as stated by the Doctor. Shortening of the leg i.e., 3% is also an assumption. It is important to note that it is a normal phenomenon even medical jurisprudence to say that there is a difference between two legs. Therefore, having regard to the fact that right toe has been amputated, I find that disability percentage can be enhanced to 15% considering the evidence available on record. Hence, loss of future income comes to Rs.1,37,700/- (Rs.4,500 x 12 x 17 x 15/100).
9. The loss of income during the laid up period comes to Rs.13,500/- (Rs.4,500/- p.m. x 3 months) as against Rs.9,000/- awarded by the Tribunal. Rest of the compensation awarded by the Tribunal on various heads does not call for interference. Thus, the appellant/claimant is entitled for enhanced compensation as under:
10. Accordingly, the appeal is partly allowed. The compensation awarded by the Tribunal is enhanced to Rs.81,000/-. The enhanced compensation shall carry interest @ 6% p.a. from the date of petition till realization. Respondent No.3 shall satisfy the award within four weeks from the date of receipt of certified copy of this order.
(Sd/-) JUDGE Prs*