IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3959 OF 2013 (MV) BETWEEN:
SRI KRISHNAPPA S/O LATE MARIYAPPA AGED ABOUT 39 YEARS R/AT DODDAHATTI KOPPALU NAGAMANGALA TALUK MANDYA DISTRICT – 571 432. ... APPELLANT (BY SRI RAJANNA., ADVOCATE) AND:
1. THE UNIVERSAL SAMPO GENERAL INSURANCE CO. LTD., OLD MADRAS ROAD REGIONAL OFFICE BANGALORE – 560 025 REP. BY ITS MANAGER 2. ATHAULLA KHAN FATHER’S NAME NOT KNOWN MAJOR R/AT NO.786 NEAR MOSQUE FORT KOLAR – 563 101. ... RESPONDENTS (SRI RAVI S SAMPRATHI, ADVOCATE FOR R1 SRI B.N. UMESH, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.10.2012 PASSED IN MVC NO.7753/2010 ON THE FILE OF THE VII ADDITIONAL JUDGE, MEMBER, MACT-3 COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 01.10.2012 in MVC No.7753/2010 on the file of MACT, Court of Small Causes, Bangalore.
2. The claim petition was filed under Section 166 of MV Act, 1988 seeking compensation for injuries sustained in a motor vehicle accident. It is stated that on 26.02.2010 when the claimant was traveling in a car bearing registration No.KA-07-M-2156, the driver of the said car drove the same in a rash and negligent manner and dashed against road side tree. Due to which, claimant sustained grievous injuries and took treatment as inpatient at Adichunchanagiri Hospital, Bellur. It is stated that the claimant was aged about 36 years at the time of the accident and was earning Rs.25,000/- per month by agricultural work and milk vending business.
3. On issuance of summons, respondent No.1-insurer appeared and filed its written statement denying the claim petition averments but admitted issuance of policy in respect of offending car. Further stated that the accident occurred solely due to the negligence on the part of the driver of the claimant’s vehicle and further contended that the owner had handed over the vehicle to a driver, who was not holding a valid and effective driving license as on the date of the accident.
4. In order to prove his case, the claimant himself examined as PW.1 and also examined two witnesses as PWs2 and 3 including the doctor, apart from marking documents at Exs.P1 to P23. The Tribunal after considering the material placed on record awarded total compensation of Rs.3,50,480/-. While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.5,000/- per month and assessed the whole body disability at 15%. Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court and prays for enhancement of compensation.
5. Heard the learned counsel for the appellant and the learned counsel for insurance Co., and perused the material placed on record.
6. The claimant would submit that the compensation awarded by the Tribunal is on the lower side. The Tribunal committed an error in assessing the income of the claimant at Rs.5,000/- per month which is on the lower side. The claimant has sustained communited fracture of type V, communited fracture of calcaneuim and communited fracture of right femur and left clavicle for which he had taken treatment as inpatient for 35 days. The compensation awarded by the Tribunal on various heads are on the lower side and prays for enhancement of the same.
7. Per contra, the learned counsel for the respondent would submit that quantum of compensation awarded by the Tribunal is just and proper and it needs no interference. He submitted that claimant has not placed any material to establish the income earned by him. As such, the Tribunal has rightly assessed the notional income of Rs.5,000/- per month. Hence, prays for dismissal of the appeal.
8. On hearing the learned counsel for the parties and on perusal of the material placed on record, the following points arise for my consideration.
1. Whether the Tribunal is justified in assessing the income of the claimant at Rs.5,000/- per month?
2. Whether the claimant would be entitled for enhanced compensation in the above said facts and circumstances?
9. Answer to the above points would be in the affirmative for the following reasons:
10. The accident that had taken place on 26.02.2010 involving car bearing registration No.KA-07-M-2156 and accidental injury sustained by claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The learned counsel for the claimant submits that income assessed by the Tribunal at Rs.5,000/- per month is on the lower side. He further submitted that he was earning Rs.25,000/- per month by agricultural work and milk vending business, but the claimant has not placed on record any material to establish his income. In the absence of any material to establish exact income, the Tribunal assessed income of the claimant notionally at Rs.5,000/- per month. But the same is on the lower side. This Court and the Lok-Adalath, while settling the accident claims of the year 2010 would normally assess notional income of Rs.5,500 per month. In the instant case also in the absence of any material to establish the income of the claimant, it would be proper to assess notional income of the claimant at Rs.5,500/- per month.
11. The claimant has placed on record Ex.P6-wound certificate and Exs.P.1 – Discharge summary which indicate the injuries sustained by the claimant and treatment taken for the said injuries for a period of 35 days. The claimant has sustained major injuries like fracture of calcaneium, fracture of right femur and communited fracture of left clavicle. Taking note of the injuries sustained by the claimant, evidence of PW.3 - Doctor and medical record, the Tribunal has rightly assessed the whole body disability at 15%, which needs no interference. Looking to the injuries sustained by the claimant and treatment taken as inpatient for 35 days, the compensation awarded under the head attendant charges, conveyance, food and nourishment are on the lower side and requires higher compensation. Looking to the injuries sustained by the claimant, he would have definitely out of employment for a minimum period of 3 months. As income of the claimant is taken at Rs.5,500/- per month he would be entitled for Rs.16,500/- under the head ‘Loss of income during laid up period’. Thus, the claimant would be entitled
4. Conveyance, food and nourishment 5. Loss of income during treatment period 5,500x3 6. Loss of income due to disability 5,500x12x13x15/100 12,000 16,500 1,28,700 7. Loss of amenities 20,000 Total 3,95,180 12. Thus, the claimant would be entitled for total modified compensation of Rs.3,95,180/- with interest at the rate of 6% per annum as against Rs.3,50,480/- awarded by the Tribunal.
13. The appeal is allowed in part. Judgment and award is modified to the above extent.
14. By order dated 21.01.2019, the delay of 100 days was condoned subject to condition that claimant would not be entitled for interest for the delayed period. Accordingly, the claimant is not entitled for interest for 100 days.
Sd/- JUDGE NMS