IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.4138/2014 (MV) BETWEEN:
SRI RAHAMATULLA BAIG S/O SRI. NOOR BAIG, AGE: 48 YEARS, OCC: STEEL BUSINESS, R/O. B-52, 1ST MAIN, 2ND CROSS, SHAMANNA GARDEN, R.P.C. LAYOUT, PIPELINE, BANGALORE-40.
(BY SMT.SUNITHA B.H., ADV. FOR SRI.SURESH M LATUR, ADV.) AND:
1. SRI K. HARISH S/O SRI. KRISHNEGOWDA, R/O KUMBARA HALLI, BAGALUR POST HOBLI, CHANNARAYAPATNA, HASSAN-573 201.
2. THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., GOUND FLOOR, NO.31, TBR TOWER, ... APPELLANT 1ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE, J.C. ROAD, BANGALORE-2.
... RESPONDENTS (BY SRI.H S LINGARAJ, ADV. FOR R2 R1-NOTICE D/W V/O DT:18.07.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.03.2014 PASSED IN MVC NO.2484/2011 ON THE FILE OF THE XI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, 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 appellant being the claimant in this appeal is before this Court, not being satisfied with the quantum of compensation awarded under the impugned judgment and decree dated 01.03.2014 in MVC No.2414/2011 on the file of the Small Causes Court, Bengaluru City and MACT, Bengaluru (hereinafter referred to as 'the Tribunal' for short).
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained in a road traffic accident. It is stated that on 04.04.2011, while the claimant was selling utensils in front of K.V.Memorial Hall, a car bearing registration No. KA-03/C-8164 came in a rash and negligent manner and dashed against him, due to which, he sustained grievous injuries. Initially, he took treatment at Ananya Hospital and thereafter he was shifted to Bowring Hospital, Bengaluru, wherein he took treatment as inpatient for a period of 15 days.
3. Upon issuance of notice, respondent No.2/Insurance Company appeared before the Tribunal and filed its written statement denying the claim petition averments. Further it was contended that the accident occurred due to the carelessness and negligence on the part of the claimant himself. Further, it was contended that the driver of the offending vehicle did not possess valid and effective driving license to drive the vehicle.
4. In order to prove his case, the claimant got himself examined as P.W.1 and also examined the doctor as P.W.2 apart from marking the documents as Ex.P1 to Ex.P14. Respondent/Insurance Company also examined one of the doctors as R.W.1 and got marked the document as Ex.R1.
5. The Tribunal, on considering the material on record assessed the disability of the claimant at 12% to the whole body and taking the income of the claimant at Rs.5,000/- p.m., awarded total compensation of Rs.1,93,600/- with interest at the rate of 6% p.a. The claimant, being dissatisfied with the quantum of compensation awarded by the Tribunal is before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/Insurance Company. Perused the lower court records.
7. Learned counsel for the appellant would submit that the Tribunal committed an error in taking only Rs.5,000/- as income of the injured whereas, it ought to have taken Rs.6,500/- p.m. Learned counsel also submits that the doctor who treated the injured stated that the claimant has suffered 27% disability to a particular limb. Further stated that the claimant would suffer 14% disability to whole body. The Tribunal has erroneously taken the whole body disability at 12%. Learned counsel further contends that the quantum of compensation awarded on various heads is also on the lower side.
8. Per contra, learned counsel for the respondent/Insurance Company submits that the compensation awarded by the Tribunal is just and proper, which does not warrant interference of this Court and hence sought for dismissal of the appeal.
9. The accident is of the year 2011. The income of the injured taken by the Tribunal for the purpose of determining the compensation at Rs.5,000/- p.m. is on the lower side. This Court and Lok Adalaths, for the accidents of the year 2011 would normally take Rs.6,500/- p.m. as notional income in the absence of proof of income. In the present case also no proof is produced in support of the claim that the injured was earning Rs.10,000/- p.m., by selling utensils on footpath. In the absence of proof of income, the Court will have to assess the income on notional basis. It would meet the ends of justice, if a sum of Rs.6,500/- is assessed as monthly income of the injured for determination of compensation on the head of loss of future income. Further, the Tribunal has assessed the total whole body disability at 12%. Though the doctor in his evidence states that the claimant has suffered 27% disability to a particular limb and 14% to the whole body, the Tribunal on assessing the doctor evidence and on scrutiny of medical records has assessed the whole body disability to an extent of 12%, which calls for no interference by this Court. The claimant has suffered type V post dislocation of left hip with femoral head fracture (Piplains type I). He was inpatient for more than 15 days.
10. Since the claimant has taken treatment as inpatient for more than 15 days, the compensation awarded towards loss of amenities, attendant charges, conveyance and nourishment is on the lower side, which needs to be enhanced. Thus, the claimant would be entitled for modified compensation which is as follows:
1. Pain and suffering :: Rs. 50,000-00 2. Loss of income during treatment period :: Rs. 19,500-00 3. Medical expenses :: Rs. 10,000-00 4. Loss of future earning :: Rs.1,21,680-00 5. Loss of amenities :: Rs. 30,000-00 6. Attendant charges, conveyance nourishment & diet, etc. :: Rs. 20,000-00 Total Rs.2,41,180-00 Thus, the claimant would be entitled to total compensation of Rs.2,41,180/- with interest at the rate of 6% p.a. as against Rs.1,93,600/- awarded by the Tribunal. Thus, the claimant would be entitled to enhanced compensation of Rs.47,580/-.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 01.03.2014 passed in MVC No.2484/2011 on the file of the Court of Small Causes, Bengaluru City and MACT, Bengaluru is modified. The claimant is entitled to total compensation of Rs.2,41,180/- with interest at the rate of 6% p.a., as against Rs.1,93,600/- awarded by the Tribunal.
Sd/-
JUDGE mpk/-* CT:bms