IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.6046 OF 2018 (MV) Between:
Sri Eashwar. H S/o Hosallappa Aged about 28 years R/o Adlapura, Kasaba Hobli- 572 101 Tumakuru District.
... Appellant (By Sri V.B. Sidddaramaiah, Advocate) And:
1. M/s Bajaj Allianz General Insurance Co., Ltd., GE. Plaza, Airport Road, Yerwada, Pune - 411 006.
Service Address:
4th Floor, Golden Height Building 59th Cross, Rajajinagar, Bengaluru- 10 Reptd. By its Branch Manager.
2. Shankaramma, W/o T.S. Shivakumar Aged about 51 years Garden Road, Near Nataraja Oil Mill Tumakuru 572 102.
(By Sri. H.S. Lingaraj, Advocate for R1) (Notice to R2 is dispensed with) … Respondents This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 05.02.2018 passed in MVC No.209/2017 on the file of the II Additional District Judge and MACT, Tumakuru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Orders this day, the Court delivered the following:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsel for both parties, the appeal is taken up for final disposal.
2. This appeal is preferred by the appellant against the judgment and award dated 5.2.2018 passed by the District Judge & MACT, Tumakuru in MVC No.209/2017, awarding compensation in a sum of Rs.3,33,492/- with interest at 6% p.a. and the same are found to be inadequate, therefore, in this appeal, he prays for enhancement of suitable compensation.
3. The factual matrix of the appeal is as under:
It is stated that the petitioner has filed the claim petition seeking compensation on account of the injuries sustained in a road traffic accident. It is his case that on 3.5.2016, wherein the claimant said to be the injured was proceeding on his Motor cycle bearing registration NO. KA-06-EU-1310 along with his mother said to be the pillion rider from Adalapura towards Mallasandra. At that time, an Omni Car bearing No.KA-06-N8287 driven by its driver in a rash and negligent manner and high speed came from Mallasandra side and hit the motor cycle, causing injuries to the claimant, which was reflected in the wound certificate. It is further stated that the injured was shifted to the Government General hospital, Tumakuru wherein he was administered with first aid and subsequently he was shifted to Victoria hospital, Bengaluru in order to provide better treatment and he was treated as inpatient till 23.5.2016. The injured was aged about 27 years at the time of accident and is the sole bread earning member of the family and eaking out his livelihood by doing panipuri business and earning Rs.1,000/- per day. On account of the accident, he is unable to do panipuri business, which he was doing earlier to the accident. It is further stated that due to the rash and negligent driving of the offending vehicle, the accident has occurred and as a result of which, the claimants sustained injuries. A case came to be registered against the offending vehicle in Cr.No.129/2016 on the complaint lodged by the claimant. On all these grounds, the claimant/petitioner filed a claim petition claiming compensation.
4. On service of notice, respondent No.1 said to be the owner of the Omni Car remained absent and respondent No.2 said to be the insurer of the said car entered appearance through its advocate, and filed objections.
5. It is contended by learned counsel for respondent No.1 that the policy was in force as on the date of the accident covering the risk. Therefore, respondents No.1 and 2 are jointly and severally liable to pay the compensation as sought for by the claimant. Whereas, learned counsel for respondent No.2 filed a detailed objection denying the claim made by the claimant and further denied relating to age, income and also the occupation of the claimant-petitioner. On all these grounds, seeks for dismissal of the claim petition made by the petitioners.
6. Based on the pleadings of the parties, the tribunal has framed six issues and given its finding based on the evidence of PW1 and PW2- said to be a doctor, who treated the injured. Ex.P.1 to 13 were marked on behalf of the claimants to prove his case. On the other hand, there is no defence evidence on behalf of the respondents and no documents were marked. Based on the oral evidence put forth by P.W.1-injured/claimant and documentary evidence i.e. Ex.P.1 to P.13, the tribunal has awarded compensation in a sum of Rs.3,33,492/- with interest at 6% p.a. from the date of the petition till realization.
7. It is contended by the learned counsel for the appellant that the injured was doing panipuri business. The tribunal while assessing the income has taken the income of the injured at Rs.8000/- p.m., which is found to be on the lower side. It is his contention that P.W.2-doctor, who has treated the injured and the same has been reflected in his evidence. The doctor has assessed the total physical disability at 13%. But the tribunal has taken the disability to the whole body at 10% which is found to be incorrect. Therefore, the same requires consideration. Learned counsel for the appellant contended that the injured/claimant was doing panipuri business and earning Rs.1000/- per day. Hence he seeks for enhancement of compensation in this appeal among other grounds.
8. Per contra, learned counsel for the respondent/Insurance company contented by drawing my attention through the evidence of P.W.1, who is the injured/appellant, wherein he has sustained injuries as per Ex.P.5-wound certificate and so also the X-ray report at Ex.P.12. P.W.2 said to be the doctor, who has given treatment to the injured. On considering all these aspects, the tribunal has awarded a compensation of Rs.3,33,492/- with interest at the rate of 6% p.a. which is just and proper. Hence in this appeal, it does not call for any interference by this Court for enhancement of compensation, as there is no cogent evidence on behalf of PW1 with regard to the monthly income of the injured-claimant. Hence, the appeal filed by the appellant is devoid of merits, seeks for dismissal of the appeal.
9. I have heard arguments of learned counsel on both side and perused the records.
10. The contentions put forth by learned counsel for the appellant as well as the respondents are concerned, it is relevant to note that the accident is of the year 2016, wherein the claimant-appellant was riding his motor cycle bearing registration No. KA 06 EU 1310 along with his mother as pillion rider, at that time an Omni car said to be the offending vehicle driven by its drive in a rash and negligent manner and hit the motor cycle, caused the accident. As a result of which, the claimant-PW1 sustained injuries which was reflected from the wound certificate-Ex.P.5 and Ex.P.12-X ray report. P.W1, the injured-claimant was doing panipuri business and earning a sum of Rs.1,000/- per day. But the tribunal has assessed the income in a sum of Rs.8,000/- p.m. However, there are illustrations and also guidelines, which requires to be taken into consideration while assessing the notional income at Rs.9,500/- p.m. Therefore, it is required to be added in a sum of Rs.1,500/- in addition to Rs.8,000/-p.m. assessed by the tribunal as income of the injured/claimant. So also, the disability to the whole body as taken by the tribunal is 10% instead of 13% as assessed by the Doctor-PW2.
11. Accordingly, the future income is assessed at Rs.2,51,940/- (9500X12X17X13%/100) as against Rs.1,63,200/- awarded by the Tribunal.
12. On account of the injuries sustained by the petitioner/appellant, he was not having any income from panipuri business during the period of treatment i.e, for three months. Hence, the petitioner-appellant is entitled to enhanced compensation of Rs.1,500/- in addition to Rs.8,000/- p.m. as awarded by the Tribunal. Accordingly, the petitioner is entitled to compensation Rs.28,500/- instead of Rs.24,000/- awarded by the Tribunal. However, the compensation awarded on other heads and interest granted by the tribunal at 6% p.a. remain undisturbed. Accordingly, I pass the following:
:ORDER:
The appeal is allowed in part. Consequently, the appellant is entitled to enhanced compensation of Rs.93,240/- with interest at the rate of 6% p.a.
Accordingly, the appellant is entitled for a total compensation of Rs.4,26,732/- as against Rs.3,33,492/- awarded by the Tribunal.
The respondent No.1/Insurance Company is directed to deposit the enhanced compensation amount along with interest at the rate of 6% p.a. within a period of four weeks from the date of receipt of a copy of this order before the concerned Tribunal.
The claimant-appellant is said to be doing panipuri business. Therefore, after deposit of the enhanced compensation in a sum of Rs.93,240/- with interest at 6% p.a., same shall be released in favour of the claimant/appellant on proper identification.
SD/- JUDGE Psg*