IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3371/2012 [MV] BETWEEN:
SRI RAHAMATHULLA @ PATAN RAHAMATHULLA S/O VARIKHAN @ WALI KHAN AGED ABOUT 48 YEARS R/AT NO.2, 5TH CROSS MANJUNATHA NAGAR MAGADI ROAD BENGALURU- 560 023 ... APPELLANT (BY SRI. S S HAVERI, ADV.) AND:
1. THE ORIENTAL INSURANCE COMPANY LTD., NO.7/1502, VIVEKANANDA CLOTH MARKET KORRAPADU ROAD PRODATUR- 516 361 ANDHRA PRADESH.
2. THE ORIENTAL INSURANCE COMPANY LTD., BY ITS REGIONAL MANAGER T P HUB, NO.44/45 LEO COMPLEX RESIDENCY ROAD CROSS BENGALURU- 560 025 REGIONAL OFFICE.
3. SRI M NAGI REDDY D.NO.5/1312 DORASANIPALLI ROAD PRODATUR -516 361 ANDRHA PRADESH.
... RESPONDENTS (BY SRI H S LINGARAJU, ADV. FOR R1 & R2 R3-SERVED & UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:19.01.2012 PASSED IN MVC NO.6141/2010 ON THE FILE OF MEMBER, PRINCIPAL MACT, & CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, 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 in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 19.01.2012 passed in MVC No.6141/2010 on the file of Member, Principal MACT and Chief Judge, Court of Small Causes, Bangalore.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained in the Road Traffic Accident that occurred on 11.05.2010, when the claimant was proceeding along with a pillion rider on the Motor Cycle bearing Reg.No.KA-02/HC-8880 near Basaveshwara Circle. At that time, a Car bearing Reg.No.AP.04/Q.8260 came in a rash, negligent manner and dashed against the motor cycle. As a result of the impact, the claimant sustained grievous injuries. It is stated that the claimant was working as a tailor and was earning Rs.12,000/- per month.
3. On issuance of summons, the 1st and 2nd respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments. It is also stated that the accident occurred on account of rash and negligent driving of the motor cycle by the claimant. The claimant examined himself as PW.1 and also examined the Doctors as PWs.3 and 4 in support of his case and got marked the documents Ex.P1 to P28. The Tribunal on assessing the material on record taking 10% as whole body disability and taking the monthly income of the claimant at Rs.5,500/- awarded total compensation of a sum of Rs.1,83,450/- on the following heads:-
“1. Injury, pain and suffering 40,000-00 2. Medical expenses 99,895-00 3. Conveyance 2,000-00 4. Attendant charges 9,000-00 5. Loss of earning during the period of treatment 13,500-00 6. Loss of income on account of Disability 70,200-00 7. Future medical expenses 10,000-00 Total 2,44,595-00 Less 25% Contributory Negligence 61,148-75 Award amount - Rs.1,83,450-00 Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the respondent - Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the income taken by the Tribunal at Rs.4,500/- per month to determine the compensation is on the lower side. He has produced Ex.P8 – the salary certificate to indicate that he was earning Rs.12,000/- per month by working as tailor. Further the learned counsel for the appellant submits that the Tribunal based only on the sketch Ex.P3 has held that there was contributory negligence of 25% by the claimant. The Tribunal could not have fastened the contributory negligence on the claimant based only on Ex.P3, without there being any corroboratory evidence. It is stated that the claimant was inpatient for 11 days and had undergone operation, thus he prays for enhancement of compensation.
6. Per contra, the learned counsel for the respondents – Insurance Company submits that the Tribunal has awarded just compensation which needs no interference. He submits that the Tribunal has rightly fastened contributory negligence to an extent of 25% on the claimant, since the claimant attributed negligence for the occurrence of the accident.
7. The accident is of the year 2010. The injured claimant states that he was earning Rs.12,000/- per month and has produced the salary certificate Ex.P.8. On going through Ex.P.8, it is seen that the same is issued by M/s. Magma Furnitures dated 01.06.2010, which is signed by the proprietor. The Proprietor, who has signed the certificate Ex.P.8 is not examined. In the absence of examination of the author of the salary certificate - Ex.P.8, the same cannot be relied upon for determination of the income of the claimant. In the absence of believable documents to determine the income, the Court will have to fall back to determine the income notionally. This Court and Lok Adalath while settling the accidental claims of the year 2010 would normally take notional income of Rs.5,500/- per month. In the present case, in the absence of believable document to substantiate the exact income of the claimant, it would be appropriate to take the monthly income at Rs.5,500/- for determining the compensation on the head ‘Loss of future income’. The Tribunal has fastened 25% contributory negligence on the claimant based on Ex.P.3 - the sketch. The sketch would indicate that the accident has taken place in the center of the circle where five roads meet together. The accident had taken place at 10.15 p.m. in the night. The driver of the Car ought to have been careful while driving the vehicle in the circle where five roads meet together. On perusal of the sketch contributory negligence to an extent of 25% cannot be fastened on the claimant. Since it is a junction, the claimant also ought to have been careful, as such 10% contributory negligence could be attributed to the claimant. Thus the finding of the Tribunal with regard to the contributory negligence is modified from 25% to 10%. Further the compensation awarded by the Tribunal on the head of conveyance and attendant charges, loss of earning during period of treatment are on the lower side. The claimant would be entitled for Rs.20,000/- on the head ‘Conveyance and attendant charges’ as against Rs.11,000/- awarded by the Tribunal. Since the income of the claimant is determined at Rs.5,500/- per month, he would be entitled to Rs.16,500/- as against Rs.13,500/- on the head ‘Loss of income during laid up period.” The Tribunal has assessed disability at 10%. Thus the claimant would be entitled for the following enhanced compensation:-
e. Loss of income during laid up period (Rs.5,500/- x 3) 16,500/-
f. Future medical expenses 10,000/- Total - Rs.2,71,300/-
Less 10% contributory negligence - Rs. 27,130/-
Total - Rs. 2,44,179/-
9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation of Rs.2,44,179/- as against Rs.1,83,450/- 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