IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.9170/2015 (MV) BETWEEN:
MRS. SHARMILA SHETTY W/O RATHNARAJ SHETTY AGED 41 YEARS R/AT NELLIDADIGUTHU BAJPE POST & VILLAGE MANGALORE TALUK, D. K. PIN CODE – 575008.
...APPELLANT (BY SRI. RAVISHANKAR SHASTRY G, ADV.) AND:
1. MR. PRASHANTH D S/O DOMBAYYA AGED ABOUT 29 YEARS R/AT H.NO.4/128 BAGANTHAKODI HOUSE MALALI POST BADAGULIPADY VILLAGE MANGALORE TALUK D K DISTRICT, PIN-575012.
2. UNITED INDIA INSURANCE CO. LTD., SALDANA BUILDING BRIDGE ROAD, BALMATTA MANGALORE TALUK D K DISTRICT REP. BY ITS BRANCH MANAGER PIN CODE – 575003.
(BY SRI. RAVISH BENNI, ADV. FOR R2 R1- SERVED & UNREPRESENTED) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.06.2015 PASSED IN MVC NO.974/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & MEMBER MACT, MANGALORE, DAKSHINA KANNADA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, not being satisfied with the quantum of compensation awarded under the judgment and award dated 02.06.2015 in MVC No.974/2014 on the file of the Principal Senior Civil Judge and Motor Accident Claims Tribunal, Mangalore (hereinafter referred to as 'the Tribunal' for short), praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained in the road traffic accident. It is stated that on 26.03.2014, when the claimant was proceeding as rider of the Honda Activa bearing registration No.KA-19/V-5520, a motorbike bearing registration No.KA-19/ED-1995 being ridden in a high speed and rash and negligent manner dashed to the Honda Activa of the claimant, due to which, the claimant sustained grievous injuries. It is stated that the claimant was working as a Tailor, earning Rs.10,000/- p.m. She was aged about 40 years as on the date of accident.
3. On issuance of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2/insurer appeared and filed written statement denying the claim petition averments. Further it is stated that the accident occurred solely due to the negligent riding of the claimant herself, but admitted the issuance of insurance policy in respect of the offending motorcycle. It is also contended that the rider of the offending vehicle did not possess the valid and effective driving licence as on the date of accident.
4. The claimant got examined herself as P.W.1 and also examined three witnesses as P.W.2 to P.W.4 apart from marking the documents as Ex.P1 to Ex.P21. The respondent/insurer marked the insurance policy as Ex.R1.
5. The Tribunal, appreciating the material placed before it awarded total compensation of Rs.7,85,000/- with interest at the rate of 6% p.a., from the date of petition till realization, on the following heads:
1. Pain and agony :: Rs.1,50,000/-
2. Medical expenses :: Rs.3,75,000/-
3. Loss of future earning on the basis of disability :: Rs.1,80,000/-
4. Loss of earning during laid up period :: Rs. 20,000/-
5. Loss of amenities, future Happiness :: Rs. 20,000/-
6. Conveyance, nourishment and attendant charges :: Rs. 30,000/-
7. Future medical expenses :: Rs. 10,000/-
Total Rs.7,85,000/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.5,000/- p.m., and assessed the whole body disability at 20%. The claimant, not being satisfied with the quantum of compensation is before this Court, praying for enhancement of compensation.
6. Heard the counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
7. Learned counsel for the appellant/claimant would submit that the compensation awarded by the Tribunal is on the lower side when compared to the injuries sustained by the claimant. He submits that the claimant suffered 9 fractures, for which, she has placed on record Ex.P3/wound certificate, Ex.P9/discharge summary and Ex.P10/disability certificate. Learned counsel submits that the Doctor stated that the claimant suffers from total disability to an extent of 68% to particular limbs, the Tribunal has assessed the whole body disability at 20%. Further, the learned counsel would submit that the compensation awarded on the head of loss of amenities is on the lower side when compared to the injuries sustained by the claimant. It is his submission that the income assessed by the Tribunal at Rs.5,000/- p.m., is on the lower side, as the accident is of the year 2014. The Tribunal ought to have assessed the minimum income of the claimant at Rs.8,500/- p.m. Thus, 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. He submits that the compensation awarded by the Tribunal on the head, ‘pain and agony’ is on the higher side and the same requires to be reduced. Further, he submits that the compensation awarded on the head loss of amenities is just and proper, which needs no interference. Thus, he prays for dismissal of the appeal.
9. On hearing the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in assessing the income of the claimant at Rs.5,000/- p.m.?
(ii) Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case?
10. Answer to the above points would be in the negative and affirmative, respectively for the following reasons:
The accident that had taken place on 26.03.2014 involving the Honda Activa bearing registration No. KA-19/V-5520 and motorcycle bearing registration No.KA-19/ED-1995 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The accident is of the year 2014. The income assessed by the Tribunal at Rs.5,000/- p.m., is on the lower side. The claimant states that she was working as a tailor, earning Rs.10,000/- p.m. But, the claimant has not placed on record any material to establish her income or avocation. In that circumstance, the Tribunal assessed the income of the claimant notionally. But, the income assessed by the Tribunal at Rs.5,000/- p.m., is on the lower side. This Court and the Lok Adalath, while settling the accident claims of the year 2014 would normally assess the notional income wherever there is no material to establish the exact income, at Rs.8,500/- p.m. Hence, it would be appropriate to assess the notional income of the claimant at Rs.8,500/- p.m.
11. There is no serious dispute with regard to whole body disability assessed by the Tribunal at 20% of the claimant. The doctors/P.W.3 and P.W.4 examined on behalf of the claimant stated that the claimant suffers 68% disability to limbs. The Tribunal rightly assessed the whole body disability at 1/3rd of disability of particular limb which comes to around 20%. The same is proper and correct and does not warrant interference by this Court.
12. Ex.P3/wound certificate and Ex.P9/discharge summary would indicate the injuries sustained and treatment taken by the claimant. The claimant has sustained the following injuries:
1. Fracture of left orbit;
2. Fracture of left zygomatic arch;
3. Fracture of left maxillary;
4. Fracture of both nasal bones; and 5. Fracture of left sided medial and lateral pterygoid plates.
Looking to the above injuries sustained by the claimant, I am of the considered opinion that the claimant would be entitled for another sum of Rs.20,000/- on the head of ‘loss of amenities’ and ‘future happiness’. In view of revision of monthly income of the claimant from Rs.5,000/- to Rs.8,500/-, the claimant would be entitled for a sum of Rs.34,000/- on the head ‘loss of income during the laid up period’ instead of Rs.20,000/-. Thus, the claimant would be entitled for the following modified compensation:
1. Pain and agony :: Rs.1,50,000/-
2. Medical expenses :: Rs.3,75,000/-
3. Loss of future earning due to Disability (8500x12x15x20/100) :: Rs.3,06,000/-
4. Loss of earning during laid up Period (8500x4) :: Rs. 34,000/-
5. Loss of amenities, future Happiness :: Rs. 40,000/-
6. Conveyance, nourishment and attendant charges :: Rs. 30,000/-
7. Future medical expenses :: Rs. 10,000/-
Total Rs.9,45,000/-
Thus, the claimant would be entitled to total compensation of Rs.9,45,000/- with interest at the rate of 6% p.a., from the date of petition till realization as against Rs.7,85,000/- awarded by the Tribunal. The claimant would not be entitled to interest on future medical expenses of Rs.10,000/-.
13. Accordingly, the appeal is allowed in part. The judgment and award dated 02.06.2015 in MVC No.974/2014 on the file of the Principal Senior Civil Judge and MACT, at Mangalore is modified to the above extent. Thereby the claimant would be entitled to enhanced compensation of Rs.1,60,000/-.
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JUDGE mpk/-* CT:bms