IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY MFA No.10994 OF 2012 (MV) BETWEEN:
Sri. Murali S/o. Veerappa, Age: 23 years, Occ: Carpentor, R/o.Palana Jogahalli, Post: Mallenahalli, Taluk: D.B.Pura, District : Bengaluru. …Appellant (By Smt. Sunitha B.H. for Sri. Suresh M. Latur, Advocate) AND:
1. Sri Bhaskar M.T., S/o. Thimme Gowda M., R/o.No.381, 8th Cross, 2nd Stage, 2nd Main, Hebbal, Vijayanagar Post, Mysuru – 570 017.
2. The Managing Director, ICICI Lombard General Insurance Company Limited, No.89, Hosur Main Road, 2nd Floor, PVR Complex, Madivala, Koramangala, Bengaluru – 560 068. .. Respondents (Sri. A.N.Krishnaswamy, Advocate for R-2;
R1- notice dispensed with vide order dt.22.03.2019) This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated:9.8.2012 passed in MVC No.6934/2010 on the file of the 12th Additional Small Causes Judge, Member, Motor Accident Claims Tribunal, Bengaluru, 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 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 09.08.2012, passed in MVC No.6934/2010.
2. The summary of the case of the claimant in the Tribunal is that on 16.5.2010, at about 12.30 p.m., respondent No.1-Bhaskar, being the driver of a Maruti Swift car bearing registration No.KA-09-P-9380, drove the same in a rash and negligent manner on Doddaballapura-Gowribidanur road and near Makali Durga Forest, coming from a wrong side of the road, he dashed his vehicle against a motorcycle bearing registration No.KA-03-EE-8450, on which the present claimant was a pillion rider. Due to the said accident, the claimant sustained fracture of important bones of both legs and became disabled to pursue his avocation as a Carpenter. Stating that prior to the accident, he was earning a sum of `9,000/- per month by doing carpenter work and due to the accident, he could not pursue his avocation, he has claimed compensation for a sum of `7 lakhs from respondents 1 and 2 holding them liable as 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 24,000-00 Loss of earning capacity on account of functional disability Loss of happiness and future amenities 86,400-00 5,000-00 Medical and incidental expenses 5,000-00 Future medical expenses 12,000-00 Total 1,62,400-00 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 in her arguments submitted that the quantum of compensation awarded by the Tribunal are very much on the lower side. Even after noticing that the claimant had sustained two major fractures, the Tribunal has awarded a small compensation of `30,000/- towards pain and agony. She further submitted that being a Carpenter, the claimant was earning not less than a sum of `9,000/- per month, however, the Tribunal has taken the notional income at `4,000/- per month.
9. Learned counsel for the respondent-Insurance Company in his arguments vehemently submitted that the claimant has not produced any document to show his avocation, as well his alleged income. As such, the notional income taken by the Tribunal for consideration is quite appropriate which does not require any interference by this Court. He also submits that the compensation awarded under other heads are also just and reasonable in the circumstances of the case.
10. A perusal of the evidence of the claimant as PW-1 and the evidence of doctor as PW-2 and also a careful reading of the wound certificate at Ex.P-6, discharge card at Ex.P-7, would go to show that in the accident, the claimant is shown to have sustained fracture of shaft of right femur and fracture of medial malleolus of right ankle. Considering the nature of injuries suffered by him, which are the fractures on the vital part of the body, the compensation awarded towards `pain and agony’ deserves to be enhanced by a sum of `10,000/-.
11. The claimant has claimed that he was working as a Carpenter at the time of the accident and earning a sum of `9,000/- per month. However, admittedly there are no documents with regard to his avocation or anything. The alleged income and avocation of the claimant has been seriously disputed by the respondent- Insurance Company. In such a situation, it is safe to consider the notional income of the claimant, which according to the standard notional income being accepted by co-ordinate Benches of this Court, is for `5,500/- per month for the relevant year of 2010, in which year, the accident in question has occurred. Since the Tribunal has considered the said income at `4,000/- per month, the claimant is entitled for difference of amount in the compensation awarded towards `loss of income during the laid up period’ which is considered as six months by the Tribunal below. Accordingly, towards `loss of income during the laid up period’, the claimant is entitled for a enhancement of `1,500/- x 6 months = `9,000/-.
12. Towards loss of earning capacity on account of functional disability also, the claimant deserves an enhancement in view of the fact that his notional monthly income has stood enhanced. Considering the materials placed before this Court in the form of both oral and documentary evidence, I do not find any reason to vary the percentage of disability assessed by the Tribunal at 10%. As such, the argument of learned counsel for the appellant that the percentage of disability assessed by PW-2 being 46%, one-third of the same is required to be accepted, is not considered. Thus, towards `loss of earning capacity’, the claimant is entitled for compensation of a sum of `5,500/- x 12 x 18 x 10/100 = `1,18,800/-. Since the Tribunal has awarded a sum of `86,400/- under the said heading, the claimant/appellant is entitled for an enhancement of a sum of `32,400/-.
13. Towards loss of happiness and future activities, medical and incidental expenses, the Tribunal has awarded compensation at `5,000/- each and towards future medical expenses, it has awarded a sum of `12,000/-. However, after going through the documents produced by the claimant as exhibits, more particularly, the medical records and the evidence of PW-1 and PW-2, I am of the view that towards loss of happiness, future amenities and medical and incidental expenses, the claimant is entitled for an enhancement of a sum of `5,000/- each.
14. Towards future medical expenses also, after going through the evidence of PW-2, I am of the view that the enhancement by a sum of `5,000/- needs to be awarded.
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 `66,400/-.
Accordingly, I proceed to pass the following order :
ORDER The Appeal is allowed in part.
The judgment and award dated 09.08.2012, passed by the learned XII Addl.Small Causes Judge, Member, M.A.C.T., Bengaluru, in MVC.No.6934/2010, is modified to the extent that the compensation awarded at `1,62,400/- is enhanced by a sum of `66,400/-, thus fixing the total compensation at `2,28,800/- (Rupees Two lakhs twentyeight thousand eight 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/