IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.2230 OF 2014 (MV) BETWEEN:
Sri. R. Srinivasa S/o. Late T.K. Raman Aged about 44 years Residing at No.3/3 3rd Cross, Venkatamma Layout Gokul, Mathikere Bengaluru – 560 054 ... Appellant (By Sri. K.T. Gurudeva Prasad, Advocate) AND:
1. Tata AIG General Insurance Company Limited By its Manager Gurgaon – 121 002 2. M/s. Vintages Industries Plot No.80, Sector-6 IMI Manesar Gurgaon – 121 002 ... Respondents (By Sri. S.V. Hegde Mulkhand, Advocate for R1; R2 – Notice d/w v/o dtd:08.01.2015) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated 21.11.2013 passed in MVC No.6523/2012 on the file of the X Additional Small Cause Judge and 35th ACMM, MACT, 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 The appellant is before this Court in this appeal not being satisfied with the quantum of compensation awarded under judgment and award dated 21.11.2013 in MVC.No.6523/2012 on the file of the X Additional Small Cause Judge and 35th ACMM, MACT , Bengaluru.
2. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries suffered by him in a road traffic accident which occurred on 22.04.2012. It is stated that on 22.04.2012 when the claimant was driving his autorickshaw bearing Registration No.KA-05-D-7830, car bearing Registration No.HR-26-AW-1131 came in a rash and negligent manner and dashed against the autorickshaw. Due to the impact, the auto turtled and the claimant was seriously injured. Immediately, the claimant was shifted to M.S.Ramaiah Memorial Hospital, Bengaluru, wherein he was treated as inpatient for 22 days. It is stated that the claimant has spent Rs.5,00,000/- towards treatment. The claimant was aged about 45 years as on the date of accident and he was earning more than Rs.10,000/- per month as owner cum driver of the autorickshaw.
3. On service of summons, respondent Nos.1 and 2 appeared before the Tribunal and have filed their separate statements. In their respective statements, it is contended that the accident occurred solely due to the negligence of the claimant and the claimant had no valid and effective driving licence.
4. The claimant examined himself as PW.1 and examined Doctor as PW.2, apart from marking Exs P.1 to P.21. Respondent No.1-Insurance Company marked Ex.R1-Insurance Policy.
5. The Tribunal, after analyzing material on record both oral and documentary evidence, awarded total compensation of Rs.3,44,309/- by taking income of the claimant at Rs.6,000/- per month and whole body disability at 16% on the following heads:-
Compensation towards loss of future income. Rs. 1,84,320-00 Compensation towards pain and suffering. Rs. 30,000-00 Compensation towards loss of amenities in life. Rs. 30,000-00 Compensation towards medical expenses. Rs. 36,989-00 Compensation towards disfigurement. Rs. 05,000-00 Compensation towards laid up period. Rs. 36,000-00 Compensation towards attendant charges, food and nourishment and conveyance charges. Rs. 22,000-00 Total: Rs.3,44,309-00 The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court seeking enhancement of compensation.
6. Heard learned counsel for the appellant and learned counsel for respondent No.1-Insurance Company. Perused the entire lower court records.
7. Learned counsel for the appellant submits that the accident is of the year 2012, whereas income taken by the Tribunal at Rs.6,000/- per month, is on the lower side. The claimant was the owner-cum-driver of the autorickshaw. When the claimant is the owner as well as driver of the autorickshaw, his income could be more and the Tribunal ought to have determined the income of the claimant at Rs.15,000/- per month. Further, the learned counsel submits that the Doctor has opined that the claimant has suffered 49% whole body disability, whereas the Tribunal committed an error in taking 16% whole body disability. The learned counsel referring to the evidence of PW.2-Doctor submits that the whole body disability is to be taken at 49% looking into the nature of avocation of the claimant. The learned counsel further referring to Ex.P.19 submits that the Tribunal has failed to look into the Ex.P19 bill. Ex.p.19 is the bill relating to the M.S.Ramaiah Hospital, wherein the claimant had taken treatment, undergone operation and was inpatient for 22 days. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.1-Insurance Company submits that the claimant, even though stated that he is the owner cum driver of the autorickshaw, he has not produced any document to indicate that he was the owner of the autorickshaw, which he was driving. Therefore, in that view of the matter, the Tribunal has assessed the income notionally at Rs.6,000/- per month, which needs no interference. Further, he submits that the whole body disability at 16% taken by the Tribunal is proper. The Doctor-PW.2 in his evidence has failed to indicate or assess the functional disability. The claimant has not examined Ophthalmologist to say that he is suffering from loss of vision. Therefore, the compensation awarded by the Tribunal is just compensation, which needs no interference.
9. Having heard learned counsel for both the parties and having perused the records, the only question which arises for consideration is whether the claimant is entitled for enhanced compensation in the facts and circumstances of the case?
10. The accident is of the year 2012, the Tribunal has assessed the income of the claimant at Rs.6,000/- per month, which is on the lower side. The claimant has stated in his evidence that he is the owner-cum-driver of the autorickshaw bearing Registration No.KA-05-D-7830, but the claimant has not produced any document to indicate that he is the owner of the autorickshaw. The accident has taken place while the claimant was driving the autorickshaw with the passengers. When the claimant categorically states that he is the owner cum driver of the autorickshaw which is unchallenged, his statement is to be believed. Taking into consideration that he is the owner- cum-driver of the autorickshaw he need to pay salary to the driver. Whatever income he earns minus maintenance, would be his income. Therefore, his income could be assessed at Rs.7,500 per month. This Court and the Lok Adalath, while settling the accident claims of the year 2012, normally would assess the notional income at Rs.7,000/- per month. Hence, I deem it appropriate to determine the income of the claimant at Rs.7,500 per month.
11. The claimant has examined PW.2-Doctor in support of his case. PW.2-Doctor, in his evidence has stated that the claimant suffers 49% whole body disability. PW.2 further stated that he has taken advise from the Ophthalmologist to say that the claimant has suffered mild vision loss to his left eye. In cross-examination, PW.2 has stated as follows:-
“It is true to say that the patient facio appearance was normal. It is true to say that ability component was normal. It is true to say that I have only observed the neuro problems and assessed the neurological disability of the patient, but before assessing the disability I have not generally discussed with the neuropsychiatist, I have gone through his report only.”
12. PW.2, further states that he has assessed the disability to the extent of 20% to the eyes movement but PW.2 is not Ophthalmologist, he is a Neurosurgeon. The claimant has not examined the Ophthalmologist to say that he suffers from mild vision loss to left eye. As stated above, the Doctor-PW.2 has not stated exactly what is the percentage of whole body disability.
13. Learned counsel for the appellant stated that the claimant has suffered functional disability due to the injuries suffered in the accident. PW.2-Doctor has not stated in his evidence as to how the claimant would suffer functional disability due to the injuries suffered by him in the accident. Further, the claimant himself in his evidence has stated that he has not surrendered the driving licence.
14. Therefore, taking into consideration the entire evidence of PWs.1 and 2 and looking into the medical records, I am of the view that the assessment of disability at 16% by the Tribunal is proper and needs no interference.
15. Learned counsel for the appellant submits that the Tribunal has not looked Ex.P.19 at all. Ex.P.19 is a final bill from M.S.Ramaiah Memorial Hospital. The said bill is not seriously disputed or challenged by respondent No.1- Insurance Company. Ex.P.19-IP bill of M.S.Ramaiah Memorial Hospital, the Tribunal has failed to look into the said document. Ex.P.19-IP bill is for a sum of Rs.2,21,629/-. Ex.P.19 also indicates the payment made by the claimant, which shows that the claimant had paid Rs.10,000/- on 07.06.2012, Rs.90,000/- on 08.06.2012 and Rs.1,22,619/- on 20.06.2012. Hence, the claimant would be entitled for the amount mentioned in Ex.P.19-bill.
16. Thus, the claimant would be entitled for the modified total compensation as follows:
3. Compensation towards loss of amenities in life 40,000 4. Compensation towards medical expenses 2,58,617 5. Compensation towards disfigurement 15,000 6. Compensation towards laid up period 45,000 7. Compensation towards attendant charges, food and nourishment and conveyance charges 22,000 Total 6,32,217 Thus, the claimant would be entitled for a total compensation of Rs.6,32,217/- as against Rs.3,44,309/- with interest as awarded by the Tribunal. The enhanced compensation shall be kept in deposit in the ratio as ordered by the Tribunal.
Accordingly, the appeal is allowed in part.
Learned counsel for the appellant submits that I.A.No.1/2017 may be dismissed as not pressed.
The said submission is placed on record.
Accordingly, I.A.No.1/2017 is dismissed as not pressed.
Sd/- JUDGE RB