IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.4877/2013 (MV) BETWEEN:
SRI CHANDRASEKHAR S/O LATE NANJUNDASWAMY AGED ABOUT 35 YEARS R/AT SIDDAIAHNA HUNDI VILLAGE NANJANGUD – TALUK MYSORE - DIST.
(BY SRI.H V BHANUPRAKASH, ADV. FOR M/S. NOBLE LAW ASSOCIATES) AND:
1. SRI MOHAMMED ILIYAS S/O MOHAMMED AKBAR AGED ABOUT 51 YEARS NO.3325/30, SECOND EDIGHA 4TH CROSS, ANNEGUNDI ROAD TILAKNAGAR, MANDI MOHALLA MYSORE – 570 010.
2. THE DIVISIOANL MANAGER UNITED INDIA INSURANCE CO. LTD., D.O.NO.1, NEAR BALLAL CIRCLE KRISHNAMURTHYPURAM MYSORE-570 004.
(BY SRI.B A RAMAKRISHNA, ADV. FOR R2 ... APPELLANT ... RESPONDENTS R1-SERVICE OF NOTICE IS D/W AS PER THE ORDER DT:14/08/2015) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.11.2012 PASSED IN MVC NO.2/2012 ON THE FILE OF THE JUDGE, SENIOR CIVIL JUDGE, MACT, NANJANGUD, 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/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 20.11.2012 passed in MVC No.2/2012 on the file of Civil Judge (Sr.Dn.) and MACT, Nanjangud.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries suffered in the Road Traffic Accident that occurred on 02.04.2011. It is stated that on 02.04.2011 when the claimant was proceeding in his Motor Cycle bearing Reg.No.KA-09- ER-9805 near B.N. Road, Hosahalli Gate a lorry bearing Reg.No.KA.01 A-8507 came in a rash, negligent manner and dashed against the claimant resulting in grievous injuries. It is stated that the claimant was an agriculturist and he was also doing brick business and earning Rs.10,000/- per month. As on the date of accident he was aged 33 years.
3. On service of summons, respondent Nos.2 and 3 appeared before the Tribunal and filed their objections. The 2nd respondent – Insurance Company denied the petition averments and contended that accident has taken place due to the negligence of the claimant and not due to the negligence of the driver of the lorry. The claimant examined himself as PW.1 and also examined PW.2 – the Doctor and got marked the documents Exs.P1 to P14. No evidence was adduced on behalf of the respondents. The Tribunal on assessing the material on record awarded compensation of Rs.4,36,000/- to the claimant. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the appeal papers and the lower Court records.
5. The learned counsel for the appellant would submit that the Tribunal committed an error in taking the monthly income of the claimant at Rs.4,500/-, which is on the lower side, and contends that the Tribunal ought to have taken the monthly income at Rs.6,500/-. He further submits that the Tribunal has taken 30% permanent disability which is against the evidence of the Doctor, whereas the Doctor has opined that the claimant has suffered permanent disability of 88%. The claimant has suffered amputation of left leg below knee. As such the Tribunal ought to have taken permanent disability at 88% as opined by the Doctor. Thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just and proper compensation, which needs no interference. He further contends that the Tribunal has taken disability at 30% which is in accordance with law. The amputation of left leg below knee would not come in the way of appellant’s avocation and that the Tribunal has rightly taken the permanent disability at 30%.
7. Having heard the learned counsel for the parties and having perused the records, I am of the view, that the following questions would arise for consideration :-
a. Whether the Tribunal is justified in taking 30% permanent disability as against Doctor’s evidence that the claimant has suffered 88% permanent disability ?
b. Whether the appellant is entitled for enhanced compensation ?
8. Answer to the above question is in favour of the appellant/claimant. The accident which occurred on 02.04.2011 involving Motor Cycle bearing No.KA-09-ER- 9805 and lorry bearing Reg.No.KA.01 A-8507 and the accidental injuries suffered by the claimant is not in dispute in this appeal. The appeal is by the claimant for enhancement of compensation.
9. The Tribunal has taken the income of the appellant/claimant at Rs.4,500/- p.m., which is on the lower side. The accident is of the year 2011, this Court and Lok Adalath would normally take the notional income at Rs.6,500/- for settling the accidental claims of the year 2011. In the present case also, in the absence of material to indicate the exact income of the claimant, the income of the claimant is taken at Rs.6,500/- per month.
10. The claimant has suffered amputation of left leg below knee. PW.2 – the Doctor in his evidence has deposed that the claimant has suffered permanent disability of 88% to the limb. In the cross-examination the Doctor has deposed that he is not in a position to state as to what is the whole body disability, in relation to the disability suffered by the claimant. Looking to the injuries suffered and amputation of left leg below knee and the evidence of the Doctor, the assessment of permanent disability at 30% to the whole body for determining the compensation by the Tribunal is on the lower side. The claimant was doing agricultural work and was also vending milk as per the evidence on record. Looking to the injuries, Doctor’s evidence and as the claimant suffered amputation of left leg below knee, the Tribunal ought to have taken the permanent disability at minimum of 50%. The permanent disability taken by Tribunal is on the lower side. Therefore, taking permanent disability to the whole body at 50% the claimant would be entitled for compensation towards the head ‘Loss of future income’ as follows :-
Rs.6,500/- x 12 x 16 x 50% = Rs.6,24,000/-
11. Further the compensation awarded on the other heads are also on the lower side. It is an admitted fact that the claimant was inpatient for 56 days and he would have been out of employment for four months, therefore, he would be entitled for compensation of a sum of Rs.26,000/- on the ‘Head loss of income for laid- up period’ . Hence looking into the nature of injuries suffered and the treatment taken, the claimant would be entitled for modified compensation. Further the Tribunal has not awarded any compensation on the head for ‘Artificial Limb’, the claimant has suffered amputation of right leg below knee, and as such he would be entitled for compensation on the head ‘Artificial Limb’. Thus the claimant would be entitled for modified compensation as follows :-
12. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation of Rs.9,53,200/- as against Rs.4,36,000/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization, as awarded by the Tribunal. Hence, the claimant would be entitled to enhanced compensation of Rs.5,17,200/-. Out of the enhanced compensation 50% of the amount shall be kept in Fixed Deposit for a period of five years, with liberty to the claimant to withdraw the accrued interest periodically.
Sd/- JUDGE NG* CT:bms