IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY M.F.A.No.7935 OF 2012 (MV) BETWEEN:
Sri. Sai Krishna Savanth S/o. Savanth D.R., Age:26 years, Occ: Web Developer, R/o. No.18, Om Sai, 5th ‘B’ Cross, M.R.Garden, V.Nagenahalli, Hebbal, Bangalore-32.
(By Smt. Sunitha B.H, for Sri. Suresh M Latur, Advocate) AND:
1. Sri. Nagaraj N S/o. Narayana Swamy, R/o. No.19/6, Police Quarters, Magadi Road, Bangalore-23.
2. The Manager, HDFC Ergo General Insurance Co. Ltd., Shop 30, RTO Complex, Rajajinagar, Bangalore-20.
(By Sri. M.S. Sriram, Advocate for R-2;
…Appellant …Respondents R1- notice dispensed with vide order dt.16-06-2015) *** This MFA is filed under Section 173(1) of Motor Vehicles Act against the Judgment and award dated 20-03-2012 passed in MVC No.7865/2009 on the file of XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, 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:
J U D G M E N T The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the learned XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, Bangalore, (hereinafter referred to as ‘The Tribunal’, for short), in its judgment and award dated 20-03-2012 in M.V.C.No.7865/2009.
2. The summary of the case of the claimant in the Tribunal is that, on 12-09-2009, at about 1:30 p.m., when he was going on a Kinetic Honda motor cycle bearing Registration No.KA-04/EX-3241, as a pillion rider at Guddadahalli main road from Hebbal main road towards Nagenahalli, at that time, the driver of autorickshaw bearing Registration No.KA-02/B-4584 came from behind with high speed and in a rash and negligent manner and dashed against his motor cycle due to which accident, he sustained grievous injuries.
He has also stated that he took treatment as in- patient in the Hospital and spent huge amount for his medical treatment.
It is further stated that as a ‘web developer’, and aged about 24 years, he was earning a sum of `31,000/- per month which is also lost due to the accident. With this he prayed for compensation of a sum of `7.00 lakhs from the respondent Nos.1 and 2 arraying them as owner and insurer of the alleged offending vehicle.
3. Before the Tribunal, the claimant got himself examined as PW-1 and examined Dr. Mali Manjunath as PW-2 and Dr. B. Ramesh as PW-3 and got marked documents from Exs.P-1 to P-16. On behalf of the respondent-Insurance Company, one Sri Jayashekara V.R. was examined as RW-1 and got marked one document at Ex.R-1.
4. 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:
Sl.No. Particulars Amount (`) 1 Pain and sufferings 25,000/-
2 Loss of amenities & happiness 3 Medical and incidental charges 15,000/-
55,000/-
5. The Tribunal awarded compensation of a sum of `1,73,800/- with interest at 6% per annum thereupon, holding the owner and Insurer jointly and severally liable to pay the said compensation and directed the Insurer to indemnify the insured – owner of the offending vehicle by depositing the said compensation amount along with future interest at the rate of 6% p.a. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
6. Though this appeal is coming up for admission, with the consent from both sides, it is taken up for final disposal.
7. Heard the arguments from both sides and perused the materials placed before this Court, including the Lower Court records.
8. Learned counsel for the appellant in her argument submitted that the compensation awarded by the Tribunal under all the heads are very meager. She submitted that even though the appellant has produced his pay slip and marked it as an exhibit, still, the Tribunal has erred in not considering the same and fixing his monthly income at only `3,000/- per month.
9. Per contra, learned counsel for the respondent - Insurer in his argument submitted that the compensation awarded by the Tribunal is just and reasonable and the same does not warrant any interference at the hands of this Court.
10. The claimant/appellant in his memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meagre. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, the claimant has prayed for allowing the appeal.
11. 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.
12. The copy of the Wound Certificate at Ex.P9 and in-patient record at Ex.P12 so also the outpatient record at Ex.P13 go to show that in the accident, the claimant sustained fracture of tibial plateau on the right side. He was also treated as in-patient at M.S. Ramaiah Hospital, Bengaluru for five days i.e. from 12-09-2009 to 16-09-2009. Considering these aspects, the Tribunal has awarded a sum of `25,000/- towards ‘pain and sufferings’, the same being just and reasonable, I do not find any reason to modify the same.
13. The compensation awarded by Tribunal at `55,000/- towards ‘medical and incidental expenses’ since based on actuals and after considering the medical prescriptions and bills produced by the claimant at Ex.P11, the same does not warrant any variation.
14. Towards ‘loss of amenities and happiness’, though the Tribunal has awarded a sum of `15,000/-, I am of the view that considering the nature of fracture with respect to which the Doctor also has assessed the permanent disability, towards ‘loss of amenities and happiness’, the compensation deserves to be enhanced by a sum of `5,000/-.
15. The claimant has stated that as on the date of accident, he was working as a ‘web developer’ and earning a sum of `31,300/- per month. To show his income, he has produced a copy of pay slips at Ex.P10. However, the Tribunal has rightly observed that the author of the said document has not been examined and the respondents have seriously disputed the alleged income of the claimant. Therefore, it considered the notional income of the claimant at `3,000/- per month. No doubt in the case on hand, in the absence of any convincing proof to show the income of the claimant, notional income was required to be taken, however, in the said process, the Tribunal has taken a sum of `3,000/- per month as notional income when in fact the co-ordinate benches of this Court were taking the income at `5,000/- per month for the relevant year ‘2009’. Therefore, taking the said notional income of the claimant at `5,000/- per month and keeping the alleged percentage of disability at 10 only, for the applicable multiplier of ‘18’, the compensation towards ‘loss of future earnings’ due to disability would come to `1,08,000/- (i.e.`5,000/- x 12 months x ‘18’ x 10%). After deducting a sum of `64,800/- awarded by Tribunal, the difference amount of `43,200/- the claimant is entitled as enhancement under this head.
16. However, the compensation towards ‘loss of income during laid up period’ requires modification since the income of the claimant is now re-assessed at `5,000/- per month. As such, towards ‘loss of income during laid up period’, he is entitled to a sum of `15,000/- @ `5,000/- per month for a period of three months. After deducting a sum of `9,000/- already awarded by Tribunal from it, the claimant would be entitled to a differential amount of `6,000/- under this head.
17. Towards ‘future medical expenses’, the Tribunal has awarded a sum of `5,000/-. The evidence goes to show that the claimant has to undergo a surgery for removal of implants made in the fractured portion. In the said circumstances, any sum less than `10,000/- would be a meager amount towards ‘future medical expenses’. As such after deducting `5,000/- awarded by the Tribunal, the claimant would be entitled to a differential amount of `5,000/- towards ‘future medical expenses’.
18. Thus, the claimant/appellant would be entitled to a sum of `59,200/- as enhanced compensation in addition to `1,73,800/- already awarded by Tribunal.
19. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads.
Accordingly, I proceed to pass the following:-
O R D E R The Appeal is allowed in part.
The judgment and award passed by the learned XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, Bangalore, dated 20-03-2012 in M.V.C.No.7865/2009 is hereby modified to the extent that the compensation awarded at `1,73,800/- is enhanced by a sum of `59,200/- (Rupees Fifty Nine Thousand Two Hundred only) thus fixing the total compensation at `2,33,000/- (Rupees Two Lakhs Thirty Three Thousand 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.
BMV* Sd/- JUDGE