IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.1879/2014 (MV) BETWEEN:
SHESHAIAH S/O KENCHAIAH AGED ABOUT 41 YEARS R/O PRASADIHALLI VILLAGE CHI. SANYASIHALLI POST KASABA HOBLI BELUR TALUK HASSAN DISTRICT-573 201.
(BY SRI.GIRISH B BALADARE, ADV.) AND:
1. THE MANAGER UNIVERSAL SOMPOO GEN.INS.CO.LTD., MUMBAI-400 058 REP. BY THE MANGER UNIVERSAL SOMPOO GEN.INS.CO.LTD., KVD TOWER, 7:3, 2ND FLOOR BLOCK WAY FINANCE 100 FT ROAD, INDIRA NAGAR OLD MADRAS ROAD BANGALORE-560038.
2. MANSOOR SHARIFF S/O ADAM SHARIFF AGED ABOUT 35 YEARS ...APPELLANT J.P. NAGAR, 1ST CROSS BELUR TOWN, BELUR HASSAN DISTRICT 573 201.
(BY SRI.S V HEGDE MULKHAND, ADV. FOR R1 …RESPONDENTS R2- SERVICE OF NOTICE D/W V/O DT:13/07/2017) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.08.2013 PASSED IN MVC NO.480/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, JMFC, MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 02.08.2013 passed in MVC No.480/2012 on the file of Senior Civil Judge and MACT at Belur, praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. The accident that occurred on 16.01.2012 involving Motor Cycle bearing Reg.No.KA-46-E-9876 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The Tribunal based on material on record awarded total compensation of Rs.1,60,400/- with 6%
The claimant not being satisfied with the quantum of compensation is before this Court praying for enhancement of compensation.
3. Heard the learned counsel for the appellant and learned counsel for the Insurance Company - 1st respondent herein. Perused the entire material on record.
4. The learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side, when compared to the injuries sustained by the claimant. It is stated that the claimant suffered fracture of right femur. He was inpatient for 12 days. It is stated that the claimant was earning Rs.4,500/- per month by doing agriculture. The Tribunal without looking to the evidence of PW.1/ claimant assessed the income of Rs.4,500/- per month which is on the lower side. It is submitted that Doctor CW.1 deposed that the claimant suffered from 37% disability to left lower limb. The Tribunal considering the evidence of CW.1 assessed the whole body disability at 9% which is on the lower side and prays for revising the same. It is his further submission that when compared to the injuries suffered by the claimant, the compensation awarded by the Tribunal is also on the lower side. It is his submission that the claimant was out of employment for a minimum period of three months and he would be entitled for loss of income for a minimum period of three months during the laid up period. Thus prays for enhancement of compensation.
5. Per contra, the learned counsel for the respondent – Insurance Company would submit that the Tribunal has awarded just compensation which requires no interference. It is further submission that the Tribunal rightly assessed the whole body disability at 9% p.a. taking the evidence of CW.1 and injuries sustained by the claimant. Thus he prays for dismissal of the appeal.
6. On hearing the learned counsels for the parties and on perusal of the material on record including the lower court records, the points that arise for consideration is as to “a. Whether the income assessed by the Tribunal at Rs.4,500/- per month of the claimant is just and proper ?
b. Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?”
Answer to the above points is in the negative and affirmative respectively for the following reasons :
It is stated that the claimant was earning Rs.6,000/- per month by doing agriculture, but the claimant has not placed on record any material to establish his avocation or his income. In the absence of any material the Tribunal assessed the notional income at Rs.4,500/- per month, but the said assessment is on the lower side. This Court and the Lok Adalat while settling the accident claims of the year 2012 would normally assess the notional income at Rs.7,000/- per month. But in the instant case, as the claimant himself has stated that he was earning Rs.6,000/- per month, it would be appropriate to take the notional income at Rs.6,000/- per month. The claimant has placed on record Ex.P.4 – the wound certificate and he states that he was inpatient for 12 days. CW.1 – the Doctor in his evidence has stated that the claimant suffers from 37% disability to a particular limb. The claimant has sustained fracture of left femur and fibula. The whole body disability would be 1/3rd of the disability suffered to a particular limb. The Tribunal committed an error in assessing the whole body disability at 9% when the Doctor states that the claimant suffered 37% disability to a particular limb. Hence the whole body disability is revised to 12% taking the disability at 37% to left lower limb. Looking to the injuries suffered i.e., fracture of femur and fibula, the claimant would have been out of employment for a minimum period of three months, as such the claimant would be entitled to compensation of Rs.18,000/- on the head ‘loss of income during laid up period’. The compensation awarded on the head loss of amenities is also on the lower side, hence the claimant would be entitled for another sum of Rs.15,000/- on the head ‘loss of amenities’. The claimant would be entitled for the following modified compensation:-
f. Loss of amenities 25,000/-
g. Future medical expenses 10,000/-
Total Rs.2,27,600/-
7. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent and the claimant is entitled to modified compensation in a sum of Rs.2,27,600/- as against Rs.1,60,400/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
8. Sri. S.V. Hegde Mulkhand, learned counsel for the respondent – insurer is permitted to file memo of appearance within two weeks. Registry to forward the lower court records forthwith.
Sd/- JUDGE NG* CT:bms