IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No. 4553/2015(MV) BETWEEN:
SRI. A. KUMAR @ GURU KUMAR.A @ GURU KUMAR S/O. ANNALAPPA AGED ABOUT 50 YEARS PRESENTLY RESIDING AT NO.26/5, JOS ALLUKAS CROSS ROAD DICKENSON CROSS ROAD SHIVAN CHETTY GARDEN POST BENGLAURU OLD RESIDENT OF NO.26/5, DICKENSON ROAD CORSS HALASURU, SHIVAJINAGAR BENGLAURU-560 042.
... APPELLANT (BY SRI. H.R.SATHYAPAL HEGDE, ADV. FOR SRI.GURUDEV PRASAD K. T. ADV.) AND 1. ICICI LOMBARD GENERAL INSURANCE CO. LTD., 2ND FLOOR SVR COMPELX 89 HOSUR MAIN ROAD, MADIVALA KORAMANGALA, BENGLAURU-560 068.
2. LALITHA EBENEZER S/O M M RAJU 24TH CROSS, 1ST MAIN ROAD NEAR ARMY BASE, CHINNAPPA GARDEN BENSON TOWN POST BANGALORE-560 046.
... RESPONDENTS (BY SRI.H.N. KESHAVA PRASHANTH, ADV. FOR R1, R2 IS SERVED AND UNREPRESENTED.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.02.2015 PASSED IN MVC NO.6686/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the appellant challenging the judgment and award dated 11.2.2015 passed by the MACT, Bengaluru in MVC 6686/2013.
2. Brief facts of the case:
On 11.10.2013 at about 2.10 p.m. when the claimant was proceeding on the Scooty bearing Registration No.KA-01-EF-8622 on St.John’s Road, when he reached near Cleveland road junction, at that time, the rider of the motorcycle bearing Registration No.KA-03-HS-3005 came in a rash and negligent manner and dashed against the motorcycle. As a result, he sustained injuries and immediately he was shifted to Santhosh hospital. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support his case, he examined himself as PW-1, one more witness as PW-2 and Dr.R.Kantharaju as PW-3, and submitted 17 documents. On the other hand, the Insurance Company examined the Manager of its company as RW-1 and produced 2 documents. After appreciation of the evidence, the Tribunal granted compensation of Rs.2,82,454/- with interest at 6% p.a. The claimant being aggrieved by the same, has preferred this appeal seeking enhancement of compensation.
3. The learned counsel for the appellant- claimant has raised the following contentions:
Firstly, the Tribunal is not justified in fastening the liability on the owner of the offending vehicle on the ground that the rider of the offending vehicle was having only LLr. Licence as on the date of accident. Even as per the law laid down by the Hon’ble Supreme Court in the case of Pappu and Ors. v. Vinod Kumar Lamba and Anr. [AIR 2018 SC 592], the Insurance Company is liable to pay compensation at the first instance, with liberty to recover the same from the owner of the offending vehicle.
Secondly, the claimant claims to be an astrologist and earning Rs.20,000/- per month. But the Tribunal is not justified in taking the income of the claimant as meager as Rs.6,000/- per month Thirdly, as per the wound certificate, the claimant has sustained grievous injuries in the accident. Even though, PW-2, the doctor in his evidence has stated that the claimant has suffered disability of 29.6% to the left upper limb and 10% to whole body, but the Tribunal is not justified in granting meager compensation of Rs.15,000/- under the head "loss of amenities".
Fourthly, the claimant was treated as inpatient for a period of 10 days in Santhosh hospital. The Tribunal is not justified in granting meager compensation of Rs.10,000/- under the head “conveyance, nourishment and attendant charges”.
With this, the learned counsel for the appellant prays for allowing the appeal.
4. Per contra, the learned counsel for the Insurance Company has raised the following counter- contentions:
Firstly, the rider of the offending vehicle was having only Learner’s Licence at the time of accident. Therefore, Tribunal is justified in fastening the liability on the owner of the offending vehicle.
Secondly, even though the claimant claims that he was an astrologist and earning Rs.20,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Thirdly, based on the documentary evidence, the Tribunal has rightly granted just and reasonable compensation for the injuries sustained by the claimant in the accident.
With this, the learned counsel for the Insurance Company prays for dismissal of the appeal.
5. Heard the learned counsel for the parties, and perused the records.
6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 11.10.2013 due to rash and negligent manner riding of the motorcycle bearing Registration No.KA- 03-HS-3005. Even though the rider of the offending vehicle did not possess driving licence, in view of the law laid down by the Hon’ble Supreme Court in the case of Pappu and Ors. v. Vinod Kumar Lamba and Anr. [AIR 2018 SC 592], the Insurance Company is liable to pay compensation to the claimant at the first instance, with liberty to recover the same from the owner of the offending vehicle.
7. The claimant claims that he was an astrologist and earning Rs.20,000/- per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court while assessing the notional income has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2013, the income should be taken notionally as Rs.8,000/- per month. Therefore, the learned Tribunal is unjustified in assessing the claimant’s income as merely Rs.6,000/- per month. Therefore, this Court enhances the claimant’s income from Rs.6,000/- to Rs.8,000/- per month.
8. In view of enhancement of income of the claimant, the compensation of Rs.18,000/- granted by the Tribunal under the category of “loss of income during laid up period” is enhanced to Rs.24,000/- (Rs.8,000 X 3 months).
9. As per wound certificate, the claimant has sustained fracture of left clavicle, fracture of left ribs of 3rd, 4th, 5th, 6th, and 7th with left haemothorax and lung contusion. Considering the nature of injuries and an amount of discomfort and unhappiness, the claimant has to undergo in his life, this Court enhances the compensation from Rs.15,000/- to Rs.40,000/- under the category of "loss of amenities".
10. Further, the claimant was treated as inpatient for a period of 10 days in Santhosh Hospital. The compensation of Rs.10,000/- granted by the Tribunal under the category of “conveyance, nourishment and attendant charges” is on the lower side and hence, the same is enhanced to Rs.20,000/-.
11. The claimant is aged about 48 years at the time of accident, and the multiplier applicable to his age group is 13. His income is assessed at Rs.8,000/-
per month. The Tribunal has rightly taken whole body disability 10%. Therefore, the ‘loss of future income’ works out to Rs.1,24,800/- (8000 x 12 x 13 x 10%) and it is awarded as against Rs.93,600/- awarded by the Tribunal.
12. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 11.2.2015 passed by the MACT, Bengaluru in MVC 6686/2013, stands modified. The claimant is entitled to receive the following compensation:
13. The Insurance Company is directed to deposit, with the learned Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of the certified copy of this judgment with liberty to recover the same from the owner of the offending vehicle in accordance with law.
The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying his identity.
Sd/- JUDGE DM