IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.2250/2015 [MV] BETWEEN:
SRI. DAVID RICHARD S/O SRI JOHN RICHARD AGE: 32 YEARS, OCC:DRIVER R/O NO.28, 10TH MAIN BHARATHAMATHA BLOCK P.G.HALLI BANGALORE-560 003 ... APPELLANT (BY SMT. SUNITHA B.H., ADV. FOR SRI. SURESH M LATUR, ADV.) AND:
1. SRI.GOVINDAIAH B.H. S/O SRI HANUMAIAH R/A NO.515, 13TH CROSS VAYALIKAVAL BANGALORE-560 003.
2. THE REGIONAL MANAGER UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE 5TH & 6TH FLOORS KRISHI BHAVAN NRUPATHUNGA ROAD HUDSON CIRCLE BANGALORE-560 001.
... RESPONDENTS (BY SRI. MOHAN KUMAR T, ADV. FOR R2 R1-NOTICE D/W V/O DT:21.10.2016) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.11.2014 PASSED IN MVC NO.4360/2012 ON THE FILE OF THE XX ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimants’ appeal for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 19.11.2014 passed in MVC No.4360/2012 on the file of the Motor Accident Claims Tribunal and XX Additional Small Causes Judge, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1989, seeking compensation for the accidental injuries suffered by the claimant in a motor vehicle accident. It is stated that on 22.06.2012, when the claimant was traveling in Tata Sumo vehicle bearing registration No.KA-04/B-5930, driver of the Tata Sumo drove the same in a rash and negligent manner, due to which, he went to other side of the road and dashed against the vehicles coming from opposite side. Due to which, the claimant suffered grievous injuries. Immediately, he was shifted to Deepa hospital, thereafter he was shifted to Columbia Asia hospital and from there to Bowring and Lady Curzon hospital, Bangalore for further treatment. He was aged about 28 years as on the date of accident and he was earning Rs.10,000/- p.m., as a driver.
3. On issuance of notice, the second respondent appeared before the Tribunal and filed its statement admitting the issuance of policy, but denying other averments of the claim petition. It is also stated that in collusion with the police and RTO officials, the documents were created and the compensation claimed is highly excessive and exorbitant.
4. The claimant got himself examined as P.W.1 and examined other three witnesses as P.W.2 to P.W.4 apart from marking the documents Ex.P1 to Ex.P33. The respondents examined R.W.1 and marked 3 documents Ex.R1 to Ex.R3.
5. The Tribunal, on appreciating the material placed before it, awarded total compensation of Rs.4,86,000/- with interest at the rate of 6% p.a., on the following heads:
1. Pain and sufferings :: Rs.1,70,000.00
4. Food, nourishment, attendant Transportation :: Rs. 20,000.00 5. Loss of future earning capacity :: Rs.2,04,000.00 Total Rs.4,86,000.00 While awarding the compensation, the Tribunal assessed the income of the claimant at Rs.5,000/- p.m., and whole body disability at 20%. The claimant, not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the income assessed by the Tribunal at Rs.5,000/- p.m., is on the lower side. She also submits that the claimant was driver and had produced Ex.P8-driving license to establish that he was working as driver. Further, she submits that the claimant was earning more than Rs.10,000/- p.m. Learned counsel further submits that P.W.2-Doctor had opined that the claimant suffers from 57.7% disability to particular limb and 29% to the whole body. But, the Tribunal without there being any reason has assessed the whole body disability at 20% which is wholly perverse and erroneous. Further, the learned counsel submits that the Tribunal has not awarded any compensation on the head of loss of amenities of life, which the claimant would be entitled, looking the injuries suffered by him. Thus, she prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation which needs no interference. He further submits that the Tribunal rightly assessed whole body disability at 20% taking 1/3 out of 57.7% disability to a particular limb. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties, the only point which falls for consideration in this appeal is as to whether the claimant is entitled for enhanced of compensation?
10. The accident occurred on 22.06.2012 involving the Tata Sumo vehicle bearing registration No.KA-04/B- 5930 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The accident is of the year 2012. The assessment of income by the Tribunal at Rs.5,000/- is on the lower side. The claimant states that he is a driver by profession and to establish that he was working as driver, he has produced Ex.P8-driving license. But, the claimant has not produced any material to indicate his income. In the absence of any material to indicate his exact income, the income is to be determined notionally. This Court and Lok Adalath, while settling the accident claims of the year 2012, would normally assess notional income of Rs.7,000/- p.m. In the present case also, in the absence of any material to indicate the exact income of the claimant, it would be appropriate to assess the notional income at Rs.7,000/- p.m. Learned counsel further submitted that the claimant has suffered the following injuries which are grievous in nature.
(i) Right haemopneumothorax.
(ii) Closed fracture shaft right femur M/3 & L/3 Funileon.
(iii) Communited right scapula fracture.
(iv) C7-T1 pedicle fracture.
(v) Right 1st and 6th ribs fracture.
(vi) P & R.A.7/90 right thigh.
He was inpatient from 30.07.2012 to 07.08.2012. P.W.2-Doctor stated that the claimant suffers from 57.7% disability to particular limb and 29% disability to the whole body. The Tribunal, looking to the evidence of Doctor-P.W.2; nature of injuries and treatment taken by the claimant rightly assessed the whole body disability at 20%. Thus, the same needs no interference.
11. The Tribunal failed to award any compensation on the head loss of amenities. The claimant has suffered fracture of shaft of right femur and communited right scapula fracture. Looking to the injuries suffered, treatment taken by the claimant, I am of the view that the claimant would be entitled for a sum of Rs.30,000/- on the head ‘loss of amenities’. Thus, the claimant would be entitled to following modified compensation:
1. Loss of future earning capacity 7000x12x17x20/100 :: Rs.2,85,600/-
2. Pain and suffering :: Rs.1,70,000/-
3. Medical expenses :: Rs. 62,000/-
4. Loss of income during the laid up period :: Rs. 42,000/-
5. Loss of Amenities :: Rs. 30,000/-
6. Food, nourishment, attendant and transportation :: Rs. 20,000/-
Total :: Rs.6,09,600/-
Thus, the claimant would be entitled to total compensation of Rs.6,09,600/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.4,86,000/- awarded by the Tribunal.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 19.11.2014 in MVC No.4360/2012 on the file of the Motor Accident Claims Tribunal and XX Additional Small Causes Judge, Bangalore is modified to the above extent. Thereby, the claimant is entitled to enhanced compensation of Rs.1,23,600/-.
Sd/-
JUDGE mpk/-*CT:bms