IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2746 OF 2014 (MV) BETWEEN:
SRI. MALLESHACHARI @ MALLESH, S/O LATE BEEMACHARI, AGED ABOUT 41 YEARS, R/A DODDAKATTI VILLAGE, YADURU TALUK, CHIKKAMAGALUR DISTRICT – 520 211. W/AT DEEP POULTRY FARM, SUGUNA COMPANY NEAR C.K.PALYA, ANEKAL TALUK, BANGALORE RURAL DISTRICT.
(BY SRI. G.UDHAYA KUMAR, ADVOCATE) AND:
1. SRI. RAVICHANDRA, S/O ERANNA, AGED ABOUT 29 YEARS, R/A BETATHURU VILLAGE, MEDIKASI HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT – 531 124.
2. SRI.K.T.RAJASHEKAR, S/O UNKNOWN, AGED ABOUT 45 YEARS, NO.321/3, T.S.P ROAD, ... APPELLANT OPP.BENGALURU MEDICAL COLLEGE, BENGALURU – 560 034.
3. ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, NO.89, II FLOOR, SVR COMPLEX, HOSUR MAIN ROAD, MADIVALA, KORAMANAGALA, BENGALURU BRANCH, BANGALORE – 560 068.
4. SMT.SARVAMANGALA, W/O LATE PANCHAKSHARAIAH, AGED ABOUT 49 YEARS, R/A NO. 16/1, 4TH MAIN, 1ST CROSS, CHAMARAJPET, BANGALORE – 560 021.
... RESPONDENTS (BY SRI H.M.GIRISH, ADVOCATE AND SRI.K.S.ANANDA, ADVOCATE FOR R2; SRI.B.C.SHIVANNEGOWDA, ADVOCATE FOR R3; NOTICE TO R1 AND R4 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.12.2013 PASSED IN MVC NO.6600/2011 ON THE FILE OF THE II ADDL. SMALL CAUSES JUDGE & XXVIII ACMM, 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 under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 02/12/2013 in M.V.C.No.6600/2011 on the file of the II Additional Small Causes Judge & XXVIII ACMM, Bengaluru.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a motor vehicle accident. It is stated that on 13-10-2010, when the claimant along with one Ashwathanarayana were proceeding on bike bearing No.KA-08-L-2595, the driver of the tempo traveller bearing No.KA-01-B-4997 came in a high speed with rash and negligent manner and dashed against the bike. Due to which, the claimant and Ashwathanarayana both sustained grievous injuries. Immediately, they were shifted to Hospital but Ashwathanarayana died on the way to the Hospital. Whereas, the claimant took treatment as inpatient for 15 days. It is submitted that the claimant was working as labourer in Poultry Farm and was earning Rs.5,580/- per month as salary.
3. On issuance of notice, respondent Nos.2 & 4 did not appear and they were placed exparte. Respondent Nos.1 & 3 appeared before the Tribunal but only respondent No.3 filed its written statement denying the claim petition averments and also denied the rash and negligent driving of the driver of offending tempo traveller. Further, it contended that the driver of the tempo traveller was driving the same slowly, carefully and cautiously. The accident had taken place due to negligent riding of the bike by the claimant himself. Further admitted the issuance of policy in respect of tempo traveller. It is also stated that the compensation claimed is excessive and exorbitant.
4. The claimant examined himself as PW-1 and also examined other two witnesses as PWs-2 & 3, apart from marking documents Exs.P-1 to P-21. Respondents have not lead any evidence.
5. The Tribunal based on the material placed on record, awarded total compensation of Rs.1,35,377/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Injury, pain & sufferings 35,000 2. Medical expenses 54,127 3. Loss of income during treatment period 15,000 4. Loss of amenities 20,000 5. Conveyance, nourishment, Food and attending charges 11,250 Total 1,35,377 The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-Insurer. Perused the material placed on record.
7. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side when compared to the injuries suffered by the claimant in a motor vehicle accident. The claimant has suffered Rib fracture, facial fractures and metatarsal fracture to left foot. It is his further submission that the claimant was inpatient for nearly 15 days and the Doctor- PW-3 has opined that the claimant suffers from 9.2% disability but the Tribunal failed to assess the disability for the purpose of awarding compensation. He further submits that PW-2-witness examined on behalf of the employer stated that the claimant was getting salary of Rs.9,000/- per month including over time allowance. Thus, he submits that the Tribunal ought to have assessed the monthly income of the claimant at Rs.9,000/- per month. It is further contended that the compensation awarded on the various heads are also on the lower side. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent– Insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the claimant has not suffered any functional disability due to the accidental injuries. It is his further submission that the claimant is continued in the same job and he is receiving the same salary. As such, he would not be entitled for the compensation on the head of ‘loss of future income’. Thus, he prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for the enhanced compensation. Answer to the said point is in partly affirmative for the following reasons.
10. The accident occurred on 13-10-2010 involving bike bearing No.KA-08-L-2595, the tempo traveller bearing No.KA-01-B-4997 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. It is stated that the claimant was working as labourer at Poultry Farm and has placed on record Ex.P-11-salary certificate, which would indicate that the claimant was receiving a salary of Rs.5,580/- per month but PW-2- witness from employer side stated that the claimant was earning Rs.9,000/- per month including over time allowance. But he has not placed any material on record to show that the claimant was earning Rs.9,000/- per month. Ex.P-11-salary certificate indicates that the claimant was paid wages of Rs.5,580/- per month, which could be assessed as income of the claimant. The claimant has suffered Rib fracture, facial fractures and metatarsal fracture to left foot. He was inpatient for 15 days for treatment for the injuries suffered in the accident. The Doctor-PW-3 in his evidence has stated that the claimant suffers from 9.2% disability, the said disability stated by the Doctor is to particular limb but he has not stated about the disability suffered by the claimant to the whole body. Moreover, the claimant has not established that due to accidental injuries, he has suffered any functional disability. It is on record, that the claimant has been continued in the same job and he is receiving the salary as he was receiving earlier. Looking into the injuries suffered and treatment taken as inpatient for 15 days, the claimant would be entitled for another sum of Rs.10,000/- on the head ‘Conveyance, nourishment, Food and attending charges’. As the claimant’s income is assessed at Rs.5,580/-, he would be entitled for compensation on the head ‘Loss of income during the treatment period' as he would be out of employment for nearly six months for the accidental injuries suffered by him. Thus, the claimant- appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.) 1. Injury, pain & sufferings 35,000 2. Medical expenses 54,127 3. Loss of income during treatment period (5580x6) 33,480 4. Loss of amenities 20,000 5. Conveyance, nourishment, 21,250 Food and attending charges Total 1,63,857 12. The claimant would be entitled for enhanced modified compensation of Rs.1,63,857/- as against Rs.1,35,377/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ