IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.5776/2013 [MV] BETWEEN:
SRI PARASHURAM @ S.M PARASAPPA S/O NAGAJJARA KENCHAPPA AGED ABOUT 26 YEARS MILK VENDING & FRUITS BUSINESS R/O. UTCHANGIDURGA VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-577 001.
(BY SRI.ARAVIND H, ADV.) AND:
1. PARASAPPA @ PARASHURAMA S S/O MAHABALESHAPPA, MAJOR DRIVER AND OWNER OF KA-17/EA-3173 R/O DOOR NO.158 UCHANGIDURAGA VILLAGE HARAPANAHALLI TALUK DAVANAGERE DISTRICT-577001.
2. DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE:MELAGIRI PLAZA MCC B BLOCK DENTAL COLLEGE ROAD DAVANAGERE-577 004.
...APPELLANT 3. SMT. HALAMMA W/O DAVANGERE HANUMANTHAPPA AGE: 34 YEARS 4. PARASHURAM S/O DAVANGERE HANUMANTHAPPA AGE 18 YEARS 5. ASHOK S/O DAVANGERE HANUMANTHAPPA AGE 16 YEARS 6. SMT. REVAMMA W/O PARASAPPA AGED ABOUT 67 YEARS RESPONDENT No.5 IS MINOR REP. BY MINOR GUARDIAN RESPONDENT No.3 ALL ARE R/O KUMARANAHALLI VILLAGE HARAPANAHALLI TALUK DAVANAGERE DIST.
…RESPONDENTS (BY SRI.SUKRUTA, ADV. FOR R2 R1, R3, R4, R6 –SERVED & UNREPRESENTED R5 – MINOR, REP. BY R3) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.04.2013 PASSED IN MVC NO.9/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, 6TH ADDITIONAL MACT, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 19.04.2013 passed in MVC No.9/2011 on the file of Senior Civil Judge & IX MACT, Harapanahalli.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 03.06.2010 when the claimant was proceeding as a pillion rider on Motor Cycle bearing Reg.No.KA-17/EA-3173, the rider of the Motor Cycle dashed to another Motor Cycle bearing Reg.No.KA.17/X-1019, which resulted in death of the rider of the Motor Cycle and grievous injuries to the claimant. The claimant was taken to Bapuji Hospital, Davanagere, where he took treatment as inpatient. It is stated that he was earning Rs.8,000/- per month by milk vending and fruits business.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments and the involvement of Motor Cycle bearing Reg.No.KA- 17/EA-3173. Further it is stated that there is delay in filing the complaint and the rider of the motor cycle was not possessing valid and effective driving licence. The claimant examined himself as PW.2 and also examined the Doctor as PW.3 and got marked the documents Exs.P.1 to P.67. The insurer marked Ex.R.1 – the Insurance Policy. The Tribunal on assessing the material on record awarded total compensation of Rs.1,46,803/- with interest at 6% p.a. from the date of petition till the date of realization on the following heads :-
Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the claimant was earning more than Rs.8,000/- per month by milk vending and fruits business. It is stated that even a coolie would earn more than Rs.200/- per day. Further it is stated that claimant was inpatient for 21 days, hence the compensation awarded by the tribunal is on the lower side. Further it is submitted that no compensation is awarded on the head conveyance and attendant charges. It is his further submission that the Doctor has opined that the claimant suffers from 25% disability, whereas the Tribunal assessed disability at 8.33% without there being any reason. Thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal awarded just compensation which requires no interference. He submits that the Tribunal has rightly assessed the disability at 8.33% taking note of the evidence of the Doctor and the nature of injuries suffered by the claimant. Thus prays for dismissal of the appeal.
7. On hearing the learned counsels for the parties and on perusal of the material on record including the lower court records, the only point that arise for consideration is as to “Whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case ?” Answer to the said point is in the affirmative for the following reason :
The occurrence of the accident on 03.06.2010 involving Motorcycle bearing Reg.No.KA.17/EA-3173 and Motor Cycle bearing Reg.No.KA.17/X-1019 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is in appeal seeking enhancement of compensation. It is stated that the claimant was earning Rs.8,000/- per month by milk vending and fruits business, but has not produced any document to indicate his exact income. In the absence of any material to indicate the exact income of the claimant, the Tribunal has assessed the income of the claimant at Rs.130/- per day which would come to Rs.3,900/- per month. The assessment of income of the claimant at Rs.3,900/- per month is on the lower side. The accident is of the year 2010. Looking to the standard of living in the year 2010 and taking note of the fact that this Court and Lok Adalath while settling the accident claims of the year 2010 would normally take notional income of Rs.5,500/- per month, in the instant case, in the absence of any material to indicate the exact income, it would be appropriate to take the notional income at Rs.5,500/- per month for determining the compensation on the head ‘Loss of future income’. The claimant was inpatient from 03.6.2010 to 24.06.2010 for about 21 days. The claimant suffered multiple fracture of bones of right foot. PW.3 – the Doctor states that the claimant suffers from 25% disability to particular limb. Ex.P.17 is the disability certificate issued by the Doctor, who treated the claimant at Bapuji Hospital, Davanagere, which would indicate that the claimant suffered 20-25% disability to particular limb. The Tribunal looking to the nature of injuries suffered, treatment taken and the Doctor’s evidence has rightly assessed the whole body disability at 8.33%, which needs no interference. In view of the assessment of the income of the claimant at Rs.5,500/- per month, the claimant would be entitled to compensation of Rs.16,500/- on the head loss of income during laid up period. The Tribunal has failed to award any compensation on the head attendant charges and conveyance, since the claimant was inpatient for 21 days at Bapuji Hospital, Davanagere, definitely the claimant would have spent on conveyance and attendant charges. Thus the claimant would be entitled for the following modified compensation:-
a. Medical expenses and nourishment 35,000/-
b. Loss of income during the treatment 16,500/-
c. Pain and suffering 20,000/-
Total - Rs.1,99,962/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.1,99,962/- as against Rs.1,46,803/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms