IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.56 OF 2015 (MV) BETWEEN:
SRI. SATHISH B, S/O BALU V, AGED ABOUT 30 YEARS, R/AT. #39, 7TH ‘B’ MAIN, SWATHANTHRAPALYA, SRIRAMPURA, BANGALORE-560002. ... APPELLANT (BY SRI. A. VIJAY KUMAR, ADVOCATE FOR SRI. M. RAJASHEKAR, ADVOCATE) AND:
1. M/S. SKY WINGS CAR RENTALS, BY ITS PROPRIETOR, LOKESH B.R., NO.1, 24TH MAIN ROAD, 12TH CROSS, J.P.NAGAR, BANGALORE-560078.
2. THE MANAGER, UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD., KVD TOWERS, #7/3, II FLOOR, ABOVE BASTLE FINANCE, OPP: 100 FEET ROAD, INDIRANAGAR, OLD MADRAS ROAD, BANGALORE-560038. ... RESPONDENTS (BY SRI. RAVI.S.SAMPRATHI, ADVOCATE FOR R2 R1 – NOTICE D/W V/O DATED 02-02-2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.04.2013 PASSED IN MVC NO.6599/2011 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 claimant is in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 09/4/2013 in M.V.C.No.6599/2011 on the file of the XI Additional Judge, MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 06-10-2011, when the claimant was crossing the Bangalore-Bellary main road in front of Veterinary College Gate, a car bearing No.KA-05-AB-9967 driven by its driver with high speed in a rash and negligent manner dashed against the claimant. Due to which, the claimant sustained grievous injuries. Immediately, he was shifted to NIMHANS Hospital. Thereafter to Victoria Hospital, Bengaluru and then to St.Theresa’s Hospital, where he was treated as inpatient for five days. It is stated that the claimant was working as packer at Agarbathi Factory and was earning Rs.8,000/- per month. He was aged about 26 years as on the date of accident.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their objections separately. Respondent No.1 denied the claim petition averments and the nature of injuries suffered by the claimant. Further it is stated that the vehicle was insured with respondent No.2 and the policy is valid and in force as on the date of accident. It is further stated that the accident had taken place only due to the negligence of the claimant himself. Respondent No.2-Insurer in its statement of objections admitted the issuance of insurance policy in favour of the offending vehicle. Further it is also contended that the compensation claimed is excessive and exorbitant.
4. The claimant examined himself as PW-1 and Medical Officer as PW-2, apart from marking 13 documents Exs.P-1 to P-13. No evidence was lead and no documents were marked on behalf of the respondents.
5. The Tribunal based on the material placed on record, awarded total compensation of Rs.80,684/- with interest at the rate of 6% per annum from the date of petition till the date of realization, on the following heads:
Amount in (Rs.)
conveyance, nourishment & diet etc.
Total 80,684 The claimant not being satisfied with the quantum of compensation is before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side when compared to the injuries sustained and treatment taken by the claimant. It is his further submission that the claimant was working as packer in Agarbathi Factory and was earning Rs.8,000/- per month. But the Tribunal assessed the income of the claimant at Rs.4,000/- per month without there being any reason. Further it is submitted that the claimant was inpatient for five days. As per Ex.P7-wound certificate the claimant suffered fracture of right superior pubic rami, Multiple abrasions over face, hand and chin. The Tribunal failed to assess the disability suffered by the claimant due to the accidental injuries. It is his further submission that the compensation awarded on the various heads are also on the lower side. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent- Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the Medical Officer has not stated anything about the disability suffered by the claimant and there is no evidence placed on record to prove the disability. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the only point which falls for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for the enhanced compensation. Answer to the said point is in the affirmative for the following reasons.
10. The accident occurred on 06-10-2011 involving Car bearing No.KA-05-AB-9967 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that he was working as packer in Agarbathi Factory and was earning Rs.8,000/- per month. But no material/document is placed on record to establish the exact income of the claimant. In the absence of any material/document to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.4,000/- per month, the same is on the lower side. The accident is of the year 2011. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011 at Rs.6,500/- per month. In the present case also in the absence of any material/document to indicate the exact income of the claimant , it would be appropriate to assess Rs.6,500/- per month as notional income of the claimant for determination of the compensation on the head of ‘Loss of income during treatment period’.
11. As per wound certificate-Ex.P7, the claimant suffered fracture of right superior pubic rami, Multiple abrasions over face, hand and chin. PW-2-Medical Officer who has produced medical records has not stated anything about the disability suffered by the claimant due to the accidental injuries. In the absence of the medical evidence with regard to the disability suffered by the claimant, the claimant would not be entitled for the compensation towards ‘Loss of income due to the disability’. Admittedly, the claimant was inpatient at St.Theresa’s Hospital, Bangalore and as per discharge summary-Ex.P8, the claimant was inpatient from 07-10-2011 to 11-10-2011. Looking to the nature of injuries suffered, treatment taken as inpatient by the claimant, the compensation awarded on the head of ‘Amenities’ is on the lower side. Thus, the claimant would be entitled for another sum of Rs.15,000/- on the head of ‘Loss of amenities’ in addition to Rs.10,000/- awarded by the Tribunal. The Tribunal awarded Rs.12,000/- on the head of ‘Loss of income during treatment period’. As stated above, the notional income of the claimant is assessed at Rs.6,500/- per month, therefore the claimant would be entitled for Rs.19,500/- (6500x3) on the head of Loss of income during treatment period’. Thus, the claimant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.)
conveyance, nourishment & diet etc.
Total 1,03,184 12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,03,184/- as against Rs.80,684/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal. After deduction of 10% contributory negligence, the claimant would be entitled for net compensation of Rs.92,865/-.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
The Tribunal saddled 10% contributory negligence on the part of the claimant, which is not disturbed.
By order dated 17-3-2017 the delay of 496 days in filing the appeal was condoned subject to the condition that the appellant would not be entitled for the interest for the delayed period. Accordingly, the appellant would not be entitled for the interest for the delay period of 496 days.
Sd/- JUDGE SMJ