IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4980/2015 C/W M.F.A.No.6975/2015 [MV] M.F.A.NO.4980/2015 BETWEEN:
SHARANABASAVA S/O YANKAPPA AGED 37 YEARS R/O KOLIPUR SRINIVAS BUILDING CHANDRAMALESHWAR NAGAR 2ND MAIN, 1ST CROSS HUNASAMARANAHALI POST BANGALORE.
... APPELLANT (BY SRI.VIJAYAKUMAR T, ADV.) AND:
1. NEW INDIA ASSURANCE CO.LTD., BY ITS MANAGER REGIONAL OFFICE NO.2-B, 1ST FLOOR UNITY BUILDING ANNEXE MISSION ROAD BANGALORE-560 027.
2. KANTHARAJU J. S/O JWALANNA AGED MAJOR R/O NO.19, THONDEBHAVI GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT-561213.
... RESPONDENTS (BY SRI.R JAYAPRAKASH, ADV. FOR R1 NOTICE TO R2-D/W) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 28.05.2015 PASSED IN MVC NO.1909/2014 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.6975/2015 BETWEEN:
NEW INDIA ASSURANCE CO. LTD., NO.2B I ST FLOOR UNITY BUILDINGS ANNEXE, MISSION ROAD BANGALURU - 27 REPRESENTING NEW INDIA ASSURANCE COMPANY M G ROAD BANGALORE - 560 001.
... APPELLANT (BY SRI. R JAIPRAKASH, ADV.) AND:
1. SRI. SHARANABASAVA S/O YENKAPPA 38 YRS, KOLIPUR SRINIVASA BUILDINGS CHANDRAMLESHWAR NAGAR II MAIN I CROSS HUNSAMARANAHALLI POST BANGALORE TQ-560 064.
2. KANTHARAJU J S/O JWALANNA MAJOR NO.19 THONDEBHAVI GOWRIBIDANUR TQ CHIKKABLLAPUR DIST. PIN – 561213.
... RESPONDENTS (BY SRI. H K BASAVARAJ, ADV. FOR R1 NOTICE TO R2 D/W) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 28.05.2015 PASSED IN MVC NO.1909/2014 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.3,95,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF PETITION TILL THE REALIZATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Both the claimant and insurer are in these two appeals, being aggrieved by the judgment and award dated 28.05.2015 passed in MVC No.1909/2014 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (hereinafter referred to as 'the Tribunal' for short).
2. The insurer is before this Court being aggrieved by the exorbitant quantum of compensation awarded by the Tribunal whereas the claimant is before this Court, not being satisfied with the quantum of compensation awarded.
3. The claimant/injured filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in a road traffic accident occurred on 09.04.2014. When the claimant was proceeding on his motor bike bearing registration No.KA-53/ED-6836, a lorry bearing registration No.
KA-40/7509 came in a high speed, rash and negligent manner and dashed against the motorcycle of the claimant. Due to the impact, the claimant fell down and sustained grievous injuries. It is stated that the claimant was working as a Senior Accountant at Gunite Technomix and was earning more than Rs.18,000/-
p.m. as salary.
4. On issuance of notice, respondents 1 and 2 appeared before the Tribunal and filed their objections. The first respondent/insurer contended that the lorry driver did not possess the valid and effective driving license as on the date of the accident. Hence, the liability is subject to terms and conditions of the policy.
5. The claimant got himself examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P15A. On behalf of the respondents, no one was examined nor any document is marked.
6. The Tribunal, on assessing the material on record, awarded total compensation of Rs.3,95,000/- with interest at the rate of 9% p.a. taking into consideration the whole body disability at 10% and reckoning monthly income of the claimant at Rs.7,500/-. Aggrieved by the exorbitant compensation awarded by the Tribunal, the insurer is before this Court in MFA No.6975/2015 whereas the claimant being not satisfied with the quantum of compensation awarded is before this Court in M.F.A.No.4980/2015.
7. Heard the learned counsel for the appellant/claimant and respondent/Insurance Company. Perused the lower court records.
8. Learned counsel for the insurer would submit that the compensation awarded by the Tribunal is on the higher side. The main contention of the Insurance Company is that the claimant would not be entitled for compensation under the head loss of future income, since he continues to work as Accountant in the same Company and is not terminated. Hence, he would not be entitled for compensation under the head loss of future income.
9. Learned counsel for the claimant would submit that the income taken by the Tribunal at Rs.7,500/-
p.m. for determination of the compensation is on the lower side. He submits that the claimant produced Ex.P13/appointment letter and salary slip to show that the claimant was earning more than Rs.18,000/- p.m. working as an Accountant. He further contends that P.W.2-doctor has opined that the claimant has suffered 36% disability to a particular limb and 12% to the whole body. But the Tribunal without there being any reason has taken 10% whole body disability. Thus prays for enhancement of compensation.
10. The accident is of the year 2014. The claimant states that he was working as an Accountant in Gunite Technomix. In support of his contention, the claimant has produced Ex.P13-letter of appointment dated 04.10.2013 and also salary slip/Ex.P14 for the month of January 2014 which indicates that the claimant was receiving gross salary of Rs.17,761/-. To prove Ex.P13 and Ex.P14, no one from the Company was examined and the said documents are not proved in accordance with law. In view of not proving the documents to indicate the exact income, the Tribunal has assessed the income of the claimant notionally. However, the notional income assessed by the Tribunal at Rs.7,500/-
p.m. is very meager. This Court and Lok Adalaths, while settling the accident claims of the year 2014 would normally take notional income of Rs.8,500/- p.m. In the present case also, as the claimant has failed to prove Ex.P13 and Ex.P14, I deem it appropriate to assess the income of the claimant at Rs.8,500/- p.m.
11. The claimant has examined the doctor as P.W.2 in support of his case to prove the disability. The doctor based on the X-rays/Ex.P14A, Ex.P13A/inpatient file has assessed the disability for particular limb at 36% and whole body disability at 12%. The Tribunal instead of taking whole body disability at 12% has taken the disability at 10% which is not proper. Considering the evidence of doctor and medical records, the whole body disability could be assessed at 12% instead of 10% as assessed by the Tribunal.
12. Learned counsel for the Insurance Company has contended that the claimant would not be entitled for compensation under the head future loss of income, since he has not lost the job and he continues to work as Accountant in the same Company. He refers to cross-examination portion of the claimant wherein, the claimant has stated that he has not been terminated. Further, the claimant has stated that he was on sick leave without pay. In his chief-examination, the claimant has stated that due to the prolonged treatment, he could not attend to work and lost his income for that period. The insurer has not cross- examined on that aspect. The accident took place on 09.04.2014 whereas the cross-examination was done on 04.12.2014. From April to December, the claimant was on sick leave without pay. Therefore, I am of the view that instead of granting salary for the laid up period, the Tribunal has awarded loss of future income, which needs no interference.
13. Further, learned counsel for the insurer points out that when once the Tribunal has awarded compensation under the head loss of future income, it could not have awarded compensation again on the head of permanent physical impairment at 25% and the claimant would not be entitled for the same. Thus, the claimant would be entitled for the following modified compensation:
3. Attendant charges, conveyance, and other incidental charges :: Rs. 15,000.00 4. Medical expenses :: Rs.1,50,000.00 5. Loss of future earning capacity (8500x12x16x12/100) :: Rs.1,95,840.00 6. Loss of amenities and Discomfort :: Rs. 25,000.00 Total :: Rs.4,32,840.00 14. Thus, the claimant would be entitled for total compensation of Rs.4,32,840/- as against Rs.3,95,000/- awarded by the Tribunal with interest as awarded by the Tribunal. Accordingly, the both the appeals are allowed in part. The impugned judgment and award dated 28.05.2015 passed in MVC No.1909/2014 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru is modified and the claimant is entitled to total compensation of Rs.4,32,840/- with interest as awarded by the Tribunal.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE mpk/-* CT:bms