IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.7643/2014 (MV) BETWEEN:
SHIVA S/O PUTTAIAH AGED ABOUT 21 YEARS R/O DADADAHALLI VILLAGE MALLIPATNA HOBLI ARKALGUD TALUK HASSAN DISTRICT- 573102.
(BY SRI.MURTHY D L, ADV.) AND:
1. S.K. YOGA S/O KALINGEGOWDA AGED ABOUT 39 YEARS R/O SHAMBHUNATHAPURA VILLAGE KASABA HOBLI ARKALGUD TALUK HASSAN DISTRICT 573102.
2. THE MANAGER NEW INDIA ASSURANCE COM.LTD., CHANDANA COMPLEX HARSHA MAHAL MARG HASSAN 573201.
... APPELLANT ... RESPONDENTS (BY SRI.K SURYANARAYANA RAO, ADV. FOR R2 R1-NOTICE D/W V/O DT.20/08/2015) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23.12.2013 PASSED IN MVC NO.14/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, ARKALGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant is before this not being satisfied with the quantum of compensation awarded by the Tribunal and assailing the judgment and award dated 23.12.2013 passed in MVC No.14/2011 on the file of the Senior Civil Judge, MACT, Arkalgud, 2. The appellant/claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for injuries sustained in the accident that occurred on 19.06.2011. On 19.06.2011 the appellant/claimant was walking near Nehru Nagar Circle, a motor bike bearing No.KA-13-W-0669 came in a rash and negligent manner and dashed against the claimant due to which he suffered injuries. It is stated that the claimant was working as Cleaner in A.J. Earth Movers and was earning a sum of Rs.7,000/- per month.
3. On issuance of notice to the respondents, the 2nd respondent – Insurance Company appeared and filed its objection contending that the rider of the motor bike did not possess effective licence to drive the vehicle, apart from denying the petition averments. The claimant examined himself as PW.1, PWs.2 and 3 in support of his case and marked Exs.P1 to P18 in support of his case. No witnesses were examined nor documents were marked on behalf the respondents. The Tribunal on examination of the material on record awarded total compensation of Rs.1,79,926/- to the claimant / appellant. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court.
4. Heard the learned counsel for the appellant and respondent No.2 – Insurance Company. Perused the appeal papers.
5. The learned counsel for the appellant would submit that the Tribunal committed an error in taking only Rs.4,500/- per month as income of the appellant, whereas he was earning more than Rs.7,000/- per month as JCB Cleaner. He submits that the Tribunal has taken the disability at 10% even though the Doctor has opined that the claimant is suffering from 35% disability to the whole body. It is further contended that the compensation awarded on various heads is on the lower side and prays for enhancement.
6. Learned counsel for the 2nd respondent – Insurance Company would submit that the compensation awarded is just and proper and needs no interference.
7. The accident is of the year 2011. The appellant/claimant claims that he was earning Rs.7,000/- per month as income, but he has not produced any document to indicate his exact income. In the absence of any documentary evidence to indicate the income of the appellant/claimant, the income is to be determined on notional basis. This Court and Lok Adalath would take the notional income at Rs.6,500/- per month for the accidents of the year 2011. Hence, the income of the appellant is taken at Rs.6,500/- per month. Further the Tribunal has taken 10% as permanent disability of the claimant, whereas the Doctor has opined that the claimant is suffering from 35% disability. The claimant has sustained fracture of shaft over right femur, pubic symshysis diastasis grade III, fracture of right sacral area, abrasion 18 x 12 ov er left side of chest, contusion 5 x 7 over right clavicle area, contusion 7 x 4 cms, left leg portseir, abrasion 3 x 5 low back. Looking to the nature of injuries and the evidence of the Doctor, I deem it appropriate to take the disability of the claimant at 12%. The compensation granted on various heads is on the lower side. Looking into the nature of injuries and as the claimant was admitted as inpatient for 7 days, a sum of Rs.5,000/- is awarded in addition to Rs.10,000/- on the head ‘Future medical expenses’. Rs.5,000/- is awarded in addition to Rs.20,000/- on the head ‘Pain and suffering’, Rs.5,000/- is awarded on the head ‘Food and Nourishment’ as against Rs.5,000/- awarded by the Tribunal. Rs.10,000/- is awarded in addition to Rs.10,000/- on the head ‘Loss of amenities’. The Tribunal has not awarded any compensation for the laid up period. Looking into the nature of injuries, the claimant would be out of employment for minimum of two months, hence he is entitled for ‘Loss of income during the laid up period’ for two months , i.e., Rs.6,500/- x 2 = Rs.13,000/-.
8. On the head ‘Loss of future income’ the claimant would be entitled for compensation as follows :-
Rs.6,500/- x 12% x 18 x 12 = Rs.1,68,480/- (Rs.1,68,480/-
less Rs.97,200/- awarded by the Tribunal = Rs.71,280/-). Thus, the claimant would be entitled for enhanced compensation of Rs.1,09,280/- with 6% interest as awarded by the Tribunal in addition to Rs.1,79, 926/- awarded by the MACT. Accordingly, the appeal is allowed in part.
Sd/- JUDGE NG*CT:bms