IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.6390 OF 2012 (MV) BETWEEN:
Sri. Manju, S/o. Venkatesha, Age: 33 years, Occ: Mason, R/at Ramamurthy Nagar Post, Ambedkar Nagar, 10th Cross, Bengaluru – 560 016. …Appellant (By Smt. Sunitha B.H. for Sri. Suresh M. Latur, Advocate) AND:
1. The Managing Director, B.M.T.C., K.H. Road, Shanthinagar, Bengaluru – 560 027.
2. The Divisional Manager, United India Insurance Co. Ltd., DO No.4, No.19-19/1, South End Road, 1st floor, Near Surana College, Basavanagudi, Bengaluru -4. …Respondents (Sri. Ravish Benni, Advocate for R-2;
R1- notice dispensed with vide order dt.10.07.2015) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:17.02.2012 passed in MVC No.3348/2009 on the file of the XII Addl.Small Causes Judge, Member, Motor Accident Claims Tribunal, Bengaluru, allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Hearing this day, the Court delivered the following:
JUDGMENT This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned XII Addl.Small Causes Judge, Member, M.A.C.T., Bengaluru, (hereinafter referred to as ‘The Tribunal’, for short), by judgment and award dated 17.02.2012, passed in MVC No.3348/2009.
2. The summary of the case of the claimant in the Tribunal is that on 28.2.2009, he was travelling in a Tractor-Trailer bearing registration No.KA-18-T-9797- 3028, along with other coolie labourers, on Old Madras Road, on a bridge near ITI Company, Bengaluru, at that time, a BMTC bus bearing registration No.KA-01-F-3868, under the ownership of respondent No.1 and being driven by its driver in a rash and negligent manner, came from behind and dashed to the hind portion of the Tractor-Trailer in which he was travelling as a coolie. Due to the said road traffic accident, he sustained multiple grievous injuries to all over his body and was admitted in the hospital and was inpatient for few months. Claiming that at the time of accident, he was pursuing the avocation of a Maison and was earning a sum of `6,000/- per month and due to the accident, he has totally lost his prospects of his income, had claimed compensation of a sum of `7 lakhs from the respondents who are the owner and insurer of the alleged offending vehicle respectively.
3. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
Amount (`) Pain and agony 30,000-00 Loss of income during laid up period 16,000-00 Loss of earning capacity on account of permanent disability Loss of happiness and future amenities 1,22,400-00 5,000-00 Medical and incidental expenses 6,000-00 Total 1,79,400-00 4. The appellant/claimant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
5. The present appeal being the claimant’s appeal and the respondents having not preferred either cross- objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent-Insurance Company to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal.
6. Though this appeal is coming on for admission, with the consent from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this court.
8. Learned counsel for the appellant/claimant submits that admittedly the claimant has sustained multiple fractures, including fracture of acetabulum of left middle column and fracture of distal end of left radium, towards which, he has also produced documentary evidence, including the wound certificate issued by the competent doctor and discharge summary. However, the Tribunal has awarded a meager compensation towards `pain and agony’.
Learned counsel further submitted that the income of the claimant was also taken on the lower side, so also, the percentage of disability. Learned counsel further submitted that the percentage of disability is required to be taken not less than 22% and the income at not less than `7,000/- per month, as such, the quantum of compensation requires to be enhanced.
9. Learned counsel for the respondent/Insurance Company in his argument vehemently submitted that after evaluating the value of the evidences placed by the claimant in its proper perspective, the Tribunal has awarded just compensation. The nature of injury does not warrant any enhancement, so also, there is no reason to enhance the percentage of disability.
10. The evidence of the doctor examined by the claimant and also the wound certificate and the discharge summary go to show that the claimant had sustained fracture of acetabulum left middle column and fracture of left radius distal end, among other simple injuries. Considering the nature of the injuries and the fractured location of the bone in the body, I am of the view that towards `pain and agony’, the compensation awarded deserves an enhancement by a sum of `5,000/-.
11. The claimant has contended that he was working as a Maison and earning a sum of `6,000/- per month. Admittedly, there was no documentary proof or other evidence, except his oral statement. However, considering his nature of work as a Maison and the year of accident, which was of the year 2009, I am of the view that the notional income that was being taken by Co-ordinate Benches of this Court during the relevant year being `5,000/- per month, the income of the claimant be taken at `5,000/- per month. In such an event, the compensation awarded towards `loss of income during laid up period’ deserves an enhancement by `4,000/- since the claimant was laid up for a period of four months.
12. Towards `loss of earning capacity on account of permanent disability’, the Tribunal has assessed the permanent partial disability of the claimant at 15%. However, after reappraisal of the oral and documentary evidence and also considering the nature of the injuries and the location of the injury on the part of the body of the claimant and his avocation, the percentage of disability requires to be fixed at `17%’. In such an event, the quantum of compensation awarded under the said head comes at `5,000/-x12x17x17/100 = `1,73,400/-. After deducting the compensation of `1,22,400/- awarded by the Tribunal, for the difference amount of `51,000/-, the claimant is entitled to in form of enhancement.
13. Towards `loss of happiness and future amenities’, the circumstances of the case warrants an enhancement by a sum of `5,000/-.
14. Even though the medical bills furnished was quantified to a sum of `3,042/-, but the Tribunal has awarded a sum of `6,000/- towards `medical and incidental expenses’. Considering the nature of injuries and the laid up period of the claimant, I am of the view that towards `medical and incidental expenses, including attendant charges’, the claimant deserves an enhancement of compensation by a sum of `4,000/-.
15. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total, he is entitled for enhancement of compensation in a sum of Rs.69,000/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 17.02.2012, passed by the learned XII Addl.Small Causes Judge, Member, M.A.C.T., Bengaluru, in MVC.No.3348/2009, is modified to the extent that the compensation awarded at `1,79,400/- is enhanced by a sum of `69,000/-, thus fixing the total compensation at `2,48,400/- (Rupees Two lakhs fortyeight thousand four hundred only).
The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing the 2nd respondent-Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded shall remain unaltered.
Draw modified award accordingly.
Sd/- JUDGE bk/