IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MRS.JUSTICE S.SUJATHA AND THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ M.F.A.No.3583/2015 [MV] BETWEEN :
SRI SHANTHARAM ADIGA S/O LATE SANNAIAH ADIGA AGED ABOUT 57 YEARS, R/AT NO.316, 18TH MAIN, 4TH BLOCK, NANDINI LAYOUT, BENGALURU – 560096 ...APPELLANT (BY SMT.BHUSHANI KUMAR, ADV.) AND :
1. SRI SOMASHEKAR S/O HUTCHAIAH, MAJOR IN AGE, NO.364/7, LAKSHMIPURA, H.N.NAYAK ROAD, K.G.NAGAR, BENGALURU – 20.
2. REGIONAL MANAGER THE NATIONAL INSURANCE COMPANY LTD., NO.143 AND 144, 3RD FLOOR, SHUBHRAM COMPLEX, M.G. ROAD, BENGALURU - 560001. …RESPONDENTS (BY SRI A.N.KRISHNA SWAMY, ADV. FOR R-2; R-1 DISPENSED WITH.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2015 PASSED IN MVC NO.597/2014 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE, 27TH ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING:
J U D G M E N T The appellant is the claimant in M.V.C.No.597/2014 on the file of the Motor Accident Claims Tribunal, Bangalore.
2. The present appeal is filed seeking enhancement of compensation wherein the Tribunal awarded a total compensation of Rs.4,68,530/- with interest @ 6% p.a. from the date of petition till realization, for the injuries sustained by the appellant in a road traffic accident that occurred on 15.4.2013.
3. Heard the learned counsel appearing for the appellant and the learned counsel for the respondent- Insurance Company.
4. The case of the appellant is that, on 15.4.2013 at about 4.00 p.m. when he was riding his motor cycle bearing No.KA 01 EY 6758 near Rajkumar Punyabhoomi Service Road, at that time the driver of the Autorickshaw bearing No. KA 05 AB 2419 drove the same in a rash and negligent manner from the opposite direction and dashed against the motor cycle as a result of which the appellant fell down and sustained grievous injuries.
5. The actionable negligence on the part of the driver of the auto in question and the fact that the said auto was insured with the respondent No.2 insurance company is not in dispute.
6. Learned counsel appearing for the appellant would contend that the total compensation awarded by the Tribunal is on the lower side inasmuch as the income taken at Rs.6,000/- per month is not justified since the appellant was working as a businessman and earning about Rs.30,000/- per month and due to the accidental injuries, he is not able to run his business and lost his entire earning capacity. It is further submitted that the permanent disability suffered by the appellant is 36.38% to the right lower limb and at 13% to 14% to the whole body and in view of the injuries and disabilities suffered, the compensation awarded under the head pain and suffering and loss of amenities in life is also on the lower side. Hence, he prays to modify the award and enhance the compensation.
7. The Tribunal after taking into account the income of the appellant at Rs.6,000/- per month and adopting multiplier of 13 and assessing the disability to the whole body at 13%, awarded a sum of Rs.1,21,680/- towards loss of income due to disability.
8. The appellant has filed an I.A. for additional evidence seeking to produce Income tax returns for the assessment years 2013-2014 (Financial Year 2012-
2013) and 2014-2015 (Financial Year 2013-2014) and submits that the income of the appellant ought to be taken as per the income shown in the tax returns.
9. The same is disputed by the learned counsel for the respondent-insurance company stating that if at all the said income has to be taken, then the insurer has to be given sufficient opportunity to counter the claim of the appellant and for that it is necessary to remit the matter to the Tribunal.
10. Considering the I.A. filed by the appellant seeking to produce additional evidence viz., income tax returns of the appellant, we are of the view that the appellant may be given an opportunity to establish the actual loss of income due to disability suffered by him and for that, the matter is required to be remitted back to the Tribunal. Hence, without touching the merits of the case, we remit the case back to the Tribunal for disposal of the claim petition afresh after considering the additional evidence sought to be produced by the appellant as noted above.
Accordingly, we pass the following order:
The appeal is allowed in part. The judgment and award dated 25.3.2015 passed in MVC No.597/2014 on the file of the I Additional Small Causes Judge, 27th ACMM, MACT, Bengaluru, is hereby set aside. The Tribunal shall consider the matter afresh in accordance with law after affording both the parties to put forth their case in the manner noted supra.
I.A.No.1/16 stands disposed of.
The parties shall appear before the Tribunal on 16.3.2019.
Sd/- JUDGE Sd/- JUDGE Dvr: