IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.7568 OF 2015 (MV ) BETWEEN:
SHIVANANJEGOWDA @ SHIVANANJA S/O. CHIKKALINGAIAH T.K., AGED ABOUT 42 YEARS, RESIDENT OF DODDA BANASAVADI VILLAGE, KERAGODU HOBLI, MANDYA TALUK, MANDYA DISTRICT-570 401.
... APPELLANT (BY SRI.MADHAV KASHYAP, ADVOCATE FOR SRI.SOMEGOWDA.A.N, ADVOCATE) AND 1. ANIL.H.R S/O RAMEGOWDA, MAJOR, OWNER OF MARUTHI CAR BEARING NO.KA-13/N-1089.
RESIDENT OF DOOR NO.1553, SALAGAME ROAD, OPPOSITE TO SANJEEVINI HOSPITAL, SARASWATHIPURAM, HASSAN-573 201.
2. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, V.V. ROAD, MANDYA CITY-570 401. ... RESPONDENTS (BY SRI.M.ARUN PONNAPPA, ADVOCATE FOR R2 R-1 SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.10.2014 PASSED IN MVC NO.1176/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM AND MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant is before this Court under Section 173(1) of the Motor Vehicles Act,1988 not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 10.10.2014 in M.V.C.No.1176/2013 on the file of the Additional Senior Civil Judge & CJM and MACT, Mandya.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in a road traffic accident which occurred on 28.06.2013. It is stated that on 28.06.2013, when the claimant was proceeding in his motorcycle bearing Reg.No.KA-55-E-5511, one Maruthi Swift Car bearing Reg.No.KA.13-N-1089 being driven by the driver in a rash and negligent manner and dashed against the motorcycle. Due to which, he suffered grievous injuries to his left leg. Immediately, he was shifted to Adichunchanagiri Hospital, B.G.Nagara. He states that he was inpatient for more than 32 days. The claimant was agriculturists and states that he was earning more than Rs.10,000/- per month.
3. On service of notice, respondent No.2- Insurance Company appeared before the Tribunal and filed its statement of objections denying the averments of the petition and contended that the accident occurred due to negligence of the driver of the motor vehicle. The claimant examined himself as PW-1 and also examined PW-2 Doctor apart from marking documents Ex.P1 to Ex.P15. No evidence was adduced on behalf of the respondent- Insurer.
4. The Tribunal on analyzing the material on record has awarded total compensation of Rs.2,79,000/- with interest at 6% p.a. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
5. Heard learned counsel for the appellant and learned counsel for respondent No.2-Insurance Company. Perused the records.
6. Learned counsel for the appellant submits that the Tribunal committed an error in assessing the income of the claimant at Rs.5,000/- per month whereas he was earning more than Rs.10,000/- per month from his agricultural work. It is further submitted that the claimant suffered fracture of both bones of left leg, whereas Doctor has opined that the claimant has suffered 19% disability, without there being any reason, the Tribunal has taken whole body disability at 10% to assess the compensation. It is also his submission that the compensation awarded on various heads are also on the lower side, which needs to be enhanced.
7. Per contra, learned counsel for respondent No.2-Insurance Company would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference.
8. On hearing learned counsels and on perusal of the material on record, the only question which arises for consideration in the facts and circumstances of the case is as to whether the claimant is entitled for enhanced compensation?
9. The answer to the above question is in the affirmative for the following reasons:-
The accident is of the year 2013. The claimant states that he was doing agricultural work and earning more than Rs.10,000/- per month. No material is produced to establish the exact income of the claimant. In the absence of any material to indicate the exact income of the claimant, the income is to be assessed notionally. The Tribunal has assessed notional income of the claimant at Rs.5,000/- per month which is on the lower side. This Court and the Lok Adalath, while settling the accident claims of the year 2013 would normally take the notional income at Rs.8,000/- per month. In the case on hand also, in the absence of any material to indicate the exact income of the claimant, it would be appropriate to notionally assess the income of the claimant at Rs.8,000/- per month.
10. Learned counsel for the claimant contended that even though the Doctor has opined that claimant has suffered 19% whole body disability, without there being any reason, the Tribunal has assessed the whole body disability at 10%. The claimant has suffered fracture of both bones of left leg. The Doctor in his evidence has stated that fracture of both bones have united. Looking to the evidence of PW.2-Doctor and on examination of medical records, the Tribunal has rightly assessed the whole body disability at 10% which needs no interference. Further the claimant has contended that the compensation awarded on the head of ‘medical expenses’ for which he has produced bills amounts to Rs.26,746/- is on the lower side. The claimant would be entitled for compensation on the head of ‘medical expenses’ to the extent bill produced by him. The compensation awarded on the head of ‘loss of amenities’ and ‘loss of earning during the period of treatment’ are on the lower side which needs to be enhanced partially. Thus, the claimant would be entitled for modified compensation as follows:
10. Thus the claimant would be entitled for a total compensation of Rs.3,65,146/- as against Rs.2,79,000/- awarded by the Tribunal with interest as awarded by the Tribunal. The appeal is allowed in part and the judgment and award is modified to the above extent.
Sd/- JUDGE PYR