IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2445 OF 2014 (MV) BETWEEN:
SRI. MANJUNATH, S/O. SRI. RANGADAM NAIK, AGE: 29 YEARS, OCC: LORRY CLEANER GANDHI NAGAR, PAVAGADHA TOWN, TUMKUR-572101. ... APPELLANT (BY SMT. B.H. SUNITHA, ADVOCATE) AND:
1. SRI. RAHIM MIHAMMED BASHEER S/O. SRI ABDUL RAHIM, R/AT. NO.16/1, 1ST CROSS, 1ST FLOOR, ALBERT VICTOR ROAD, KALASIPALYAM, BANGALORE-560002.
2. THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., NO.28/5, CENTENARY BUILDING, EAST WING, M.G. ROAD, BANGALORE-560001.
... RESPONDENTS (BY SRI. D. VIJAYAKUMAR, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 12-01-2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.12.2013 PASSED IN MVC NO.3466/2011 ON THE FILE OF THE 16TH ADDITIONAL JUDGE, MACT, 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 19/12/2013 in M.V.C.No.3466/2011 on the file of the XVI Additional Judge, MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 05-3-2011, when the claimant was travelling in a lorry bearing Reg.No.KA-01-AA-4421, as a cleaner, the driver of the lorry drove the same in a rash and negligent manner and dashed against the right side wall of a bridge. Due to which, the claimant sustained grievous injuries. Immediately, he was shifted to District Hospital, Tumkur and thereafter to Victoria Hospital, Bengaluru, where he was treated as inpatient for nearly 45 days. It is stated that the claimant was working as a lorry cleaner and was earning Rs.5,500/- per month as salary and Rs.50/- per day as Bata. He was aged about 27 years as on the date of accident.
3. On issuance of notice, respondent No.2-Insurer appeared before the Tribunal and filed its statement of objections denying the claim petition averments. But admitted the issuance of insurance policy in favour of the offending vehicle/lorry. Further denied the involvement of the vehicle/lorry in the alleged accident and contended that the offending vehicle was not holding a valid and effective fitness certificate as on the date of accident.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-13. Respondent-insurer examined RW-1 and got marked Ex.R-1-Insurance policy.
5. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.2,48,629/- (rounded off to Rs.2,49,000/-) with interest at the rate of 6% per annum from the date of petition till the date of payment, on the following heads:
Amount in (Rs.) 1. Pain and sufferings 40,000 2. Loss of earning capacity (4500x12x17x19%) 3. Food, conveyance and other expenses during treatment period 4. For medical expenses (including Ex.P9) 5. Future medical expenses (for removal of implants) 1,74,420 10,000 14,209 10,000 Total 2,48,629 Rounded off to Rs.2,49,000/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.4,500/- per month and assessed the whole body disability at 19%. The claimant not being satisfied with the quantum of compensation 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 on record including the lower court records.
7. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs.4,500/- per month is on the lower side. The claimant was working as a lorry cleaner and was receiving a salary of Rs.5,500/- per month and Bata of Rs.50/- per day, which would be more than Rs.7,000/- per month. She further submits that the claimant has suffered grievous fractures and he was inpatient for nearly 45 days. It is her further submission that looking to the injuries suffered and treatment taken by the claimant, the compensation awarded on the various heads are also on the lower side. Further it is submitted that the Tribunal failed to award any compensation on the head of ‘Loss of amenities’ and ‘Loss of income during the laid up period’. Thus, prayed for enhancement of compensation.
8. Per contra, learned counsel for the respondent- Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. Further he submits that the Tribunal assessed the whole body disability at 19%, which is on the higher side. It is his further submission that the Doctor- PW-2 in his cross-examination has deposed that the claimant suffers permanent physical and functional disabilities of 4% to the right wrist and 13% to the right elbow, 2% to the left knee and based on that he stated that the claimant suffers 19% whole body disability, which is wholly erroneous. He further submits that the 1/3rd of the disability to a particular limb ought to have been taken as whole body disability. The claimant was aged 32 years as on the date of accident but the Tribunal has taken the age of the claimant as 27 years, which is wholly erroneous. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
a) Whether the claimant’s income assessed by the Tribunal at Rs.4,500/- per month is proper and correct?
b) Whether the whole body disability assessed by the Tribunal at 19% is proper and correct?
c) Whether the claimant would be entitled for the enhanced compensation?
Answer to the above points would be in the negative for (a) and affirmative for (b) and (c) for the following reasons.
10. The accident occurred on 05-3-2011 involving lorry bearing Reg.No.KA-01-AA-4421 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 a cleaner and was earning more than Rs.7,000/- per month. But the Tribunal assessed the income at Rs.4,500/- per month, which is on the lower side. The accident is of the year 2011. Even a coolie would have earned more than Rs.200/- per day in the year 2011. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011 at Rs.6,500/- per month. In the instant case also looking to the standard of living in the year 2011 and taking note of the notional income taken by the Lok Adalath, it would be appropriate to assess Rs.6,500/- per month as notional income of the claimant for determination of the compensation.
11. The claimant suffered deformity in right wrist, forearm and Elbow, tenderness over the left knee joint line and he suffered Type II compound fracture of both bones (right) side with fracture distal end of radius and external fixation surgery. He has also undergone surgery for fixing buttress plate for radius lower end and plate and screw for upper end of the left radius with rush pin fixation for the (left) ulna. PW-2-Doctor stated that the claimant suffers permanent physical and functional disabilities of 4% to the right wrist and 13% to the right elbow, 2% to the left knee and whole body disability at 19%. Admittedly, the claimant was working as a cleaner; the injury to the right hand would definitely come in the way of day to day functioning, which would result in functional disability. The Tribunal taking note of the evidence of PW-2-Doctor, nature of injuries suffered by the claimant and nature of avocation has rightly assessed the functional disability at 19%, which needs no interference.
12. Learned counsel for the respondent No.2-insurer states that the claimant was aged 32 years as on the date of accident but the Tribunal has taken the age of the claimant as 27 years for applying the multiplier. He submits that according to the voter ID, the age of the claimant is 32 years but the said voter ID is not marked as a document and it is not on record. Hospital records would show that the claimant was aged 26 years as on the date of accident. Taking note of the same, the Tribunal rightly assessed the age of the claimant as 26 years for applying multiplier. Looking to the injuries suffered by the claimant and treatment taken as inpatient for 45 days, I am of the view that the compensation awarded on the head of ‘Food, conveyance and other expenses during treatment period’ is on the lower side, which needs to be enhanced to Rs.25,000/- as against Rs.10,000/-. The Tribunal failed to award any compensation on the head of ‘Loss of amenities’ and ‘Loss of income during the laid up period’. Looking to the injuries suffered and treatment taken as inpatient, definitely the claimant would have been out of employment for minimum three months, for which he would be entitled for compensation. Further looking the injuries suffered i.e, Type II compound fracture of both bones (right) side with fracture distal end of radius, the claimant would be entitled for a sum of Rs.30,000/- on the head of ‘Loss of amenities’. Thus, the claimant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.) 1. Pain and sufferings 40,000 2. Loss of earning capacity (6500x12x17x19%) 3. Food, conveyance and other expenses during treatment period (45 days) 4. For medical expenses (including Ex.P9) 5. Future medical expenses (for removal of implants) 6. Loss of income during the laid up period (6500x3) 2,51,940 25,000 14,209 10,000 19,500 7. Loss of amenities 30,000 Total 3,90,649 13. Thus, the claimant would be entitled for enhanced modified compensation of Rs.3,90,649/- as against Rs.2,49,000/- 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