IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3399/2012 [MV] BETWEEN:
SRI ILIYAS PASHA S/O ABDULLA AGE: 20 YEARS OCC: LATHE WORK SINCE MINOR REP. BY HIS FATHER AND NATURAL GUARDIAN SRI ABDULLA S/O RAZAK BAIG R/O DURGAMOHALL ROAD K R PURAM, BENGALURU-16.
(BY SMT. SUNITHA B.H., ADV. FOR SRI.SURESH M LATUR, ADV.) AND:
1. SRI SIDDEGOWDA S/O VODDAGOLA GOWDA K V R/O MEGALA KOPPALU ATTAHALLI POST T N PURA TALUK MYSORE DISTRICT.
2. SRI JAYARAM SHETTY S/O NARAYANA SHETTY ... APPELLANT R/O MAHADEVA KRUPA DR. PILANI COLONY SIDHARTHANAGAR CHAMARAJANAGAR DISTRICT.
3. THE REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., NO 25, SHANKARANARAYAN BUILDING, M C ROAD BANGALORE -01.
... RESPONDENTS (BY SRI.JAGADEESH P.S., ADV. FOR SRI.P B RAJU, ADV. FOR R3 R1 & R2 –NOTICE D/W V/O DT:08/10/2013) THIS M.F.A. IS FILED UNDER SECTIONS 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:14.10.2011 PASSED IN MVC NO.4287/2010 ON THE FILE OF XXII ACMM AND XXIV ASCJ, 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 appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 14.10.2011 passed in MVC No.4287/2010 on the file of Member, MACT XXIV, Bengaluru.
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 13.04.2009. It is stated that on 13.04.2009 when the claimant was going as a pillion rider on the Scooter bearing Reg.No.KA-01- R-1194, near Mahadeshwara Temple, Malavalli Taluk, Mandya District, a Motor Cycle bearing Reg.No.KA-09- EE-6291 came in a rash, negligent manner and dashed against the claimant’s vehicle, due to which the claimant sustained grievous injuries. Immediately he was shifted to Malavalli Hospital and subsequently was shifted to Bowring Hospital, Bangalore. The claimant was earning Rs.6,000/- per month by doing lathe work.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared and filed its objection denying the claim averments. It is also stated that the rider of the Motor Cycle was not holding valid and effective driving license as on the date of the accident. The accident occurred due to the negligence of the rider of the motor cycle. The claimant examined himself as PW.1 and examined the Doctor as PW.2 and got marked the documents Exs.P1 to 15. The Tribunal on assessing the material on record awarded total compensation of Rs.1,31,500/- with interest at 6% p.a. on the following heads :-
1.Pain and sufferings - Rs.20,000/-
2. Medical expenses - Rs.23,500/-
3. Loss of income during the period of Treatment - Rs. 9,000/-
4. Towards Loss of future earning Capacity - Rs.39,000/-
5. Towards amenities - Rs.25,000/-
6. Loss of marriage prospects - Rs.15,000/-
Total - Rs.1,31,500/-
While awarding the above compensation the Tribunal had taken notional income at Rs.3,000/- per month and had taken the disability at 6% to the whole body to arrive at the compensation towards ‘Loss of future income’. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
5. Heard the learned counsel for the appellant and learned counsel for the 3rd respondent - Insurance Company. Perused the appeal papers and the lower court records.
6. The learned counsel for the appellant would submit that the monthly income taken by the Tribunal at Rs.3,000/- per month is on the lower side and he submits that minimum of Rs.5,000/- per month ought to have been taken to determine the compensation. He submits that the Doctor has opined that the claimant has suffered 16% disability to the whole body, whereas the Tribunal has taken the disability at 6% without there being any reason. The claimant was inpatient for 51 days and the compensation awarded on various heads is on the lower side, thus prays for enhancement of compensation. The learned counsel for the appellant submits that no compensation is awarded on the head ‘Conveyance and attendant charges.”
7. Per contra, the learned counsel for the 3rd respondent – Insurance Company submits that the Tribunal has awarded just compensation and needs no interference.
8. The accident which occurred involving the Scooter bearing Reg.No.KA.01-R-1194 and Motor Cycle bearing Reg.No.KA-09-EE-6291 and the accidental injuries suffered by the claimant is not in dispute in this appeal. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal.
9. The accident is of the year 2009. The notional income taken by the Tribunal at Rs.3,000/- per month is on the lower side. The claimant has stated that he was earning Rs.6,000/- per month by doing lathe work, but he has not produced any document to indicate his exact income. In the absence of any material, the Court will have to determine the income on notional basis. This Court and Lok Adalath while deciding the accident claims of the year 2010 would normally take notional income of Rs.5,000/- per month. Hence in the instant case, in the absence of any material to indicate the income of the claimant, it would be appropriate to take the monthly income at Rs.5,000/- for determining the compensation on the head ‘Loss of future income’. As stated by PW.2 the Doctor, the claimant has suffered the following injuries:-
Diagnosis Type III ‘C’ Compound Fractures (Crush Injury Right Foot) which includes : Comminuted FRACTURES of 1st and 2nd Metatarsals with Dislocation of 2nd Metatarsophalyngeal joint Fracture base of 3rd and 4th Metatarsal Bone. Fracture of proximal phalanx of 2nd , 3rd and 4th toes Loss of distal and proximal phalanx of 5th toe.”
Looking into the medical records and the evidence of PW.2 – the Doctor, the total disability taken at 6% by the Tribunal is on the lower side. The claimant has suffered crush injury to right foot, and he is a lathe worker. The injury suffered to right foot would definitely cause inconvenience to the claimant in his lathe work. Hence, the whole body disability could be taken at 10%. Thus the claimant would be entitled for enhanced compensation as follows :-
f. Loss of marriage prospects = 15,000/-
g. Conveyance and attendant charges = 15,000/-
Total = Rs.2,09,500/-
9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.2,09,500/- as against Rs.1,31,500/- awarded by the Tribunal, with interest at 6% p.a., from the date of petition till the date of realization.
Sd/- JUDGE NG*CT:bms