IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.5724 OF 2014 (MV) BETWEEN SRI SIDDIQ S/O SHEKABBA, AGED ABOUT 36 YEARS, ANEMAHAL VILLAGE, KASABA HOBLI, SAKALESHPUR TALUK-573 134. ...APPELLANT (BY SRI V. SRINIVAS, ADVOCATE) AND 1. SRI FAROOQ S/O B.M.FOKER, ANEMAHAL VILLAGE, KASABA HOBLI, SAKALESHPUR TALUK-573 134.
2. UNIVERSAL SOMPO GENERAL INSURANCE CO. LTD., CITY TRADE CENTRE, 1ST FLOOR, IN FRONT OF CITY HOSPITAL, KADRI, MANGALURU-575 003. ...RESPONDENTS (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R2; NOTICE TO R1 IS D/W V/O DATED 12.07.2019) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.03.2014 PASSED IN MVC NO.1301/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded under judgment and award dated 19.03.2014 in MVC No.1301/2012 on the file of the Senior Civil Judge and MACT, Sakaleshpur.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained in a road traffic accident occurred on 04.04.2012.
3. The accident occurred on 04.04.2012 involving lorry bearing Reg.No.KA-13-B-522 and the accidental injuries suffered by the claimant are not in dispute in this appeal.
The appeal is by the claimant seeking enhancement of compensation.
4. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.1,92,725/- on the following heads with interest at the rate of 6% per annum from the date of petition till its realization and awarded Rs.10,000/- towards ‘Future Medical Expenditure’;
1. Pain and Agony to Injury No.1 2. Pain and Agony to Injury No.2 to 4 Amount in (Rs.) 20,000 9,000
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.3,500/- per month and assessed the whole body disability at 10%. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal, is before this Court in this appeal.
5. Heard the learned counsel for the appellant and learned counsel for the respondent - Insurer. Perused the material on record.
6. The learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs.3,500/- per month is on the lower side when the claimant states that he was earning Rs.15,000/- per month by doing timber business. Further, the learned counsel submits that the claimant sustained fracture of left Tibia and Fibula and he took treatment as inpatient from 04.04.2012 to 16.04.2012. He further submits that the Tribunal failed to award any compensation on the head of ‘Loss of Amenities’ and on ‘Loss of Income during the laid up period’. It is his further submission that the compensation awarded on the head of ‘Pain and Suffering’ is on the lower side. Thus, he prays for enhancement of compensation.
7. 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. It is his further submission that the assessment of whole body disability at 10% by the Tribunal is on the higher side. He further submits that PW.2 – Doctor, in his evidence stated that the claimant suffers from 15% disability to the left lower limb. The Tribunal ought to have assessed whole body disability at 1/3rd of the disability to a particular limb. Thus, he prays for dismissal of the appeal.
8. On hearing the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in the facts and circumstances of the case:
1. Whether the Tribunal is justified in assessing the income of the claimant at Rs.3,500/- per month?
2. Whether the assessment of whole body disability by the Tribunal at 10% is proper and correct?
3. Whether the claimant would be entitled for enhanced compensation?
Answer to point Nos.1 and 2 are in the negative and point No.3 is in the affirmative for the following reasons.
9. The accident is of the year 2012. The claimant states that the Tribunal committed an error in assessing the income at Rs.3,500/- per month. The claimant states that he was earning Rs.15,000/- per month by his timber business. But in support of his contention that he was earning Rs.15,000/- per month, he has not produced any material to prove his income. In the absence of any material to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant at Rs.3,500/- per month notionally, but the said assessment is on the lower side. 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 2012 at Rs.7,000/- per month. In the instant case also, as there is no material on record to establish the exact income of the claimant, it would be appropriate to take Rs.7,000/- per month as notional income of the claimant.
10. The claimant sustained accidental injuries and he has placed on record Ex.P.92 - Wound Certificate and Ex.P.84 - Discharge Summary, both documents would indicate the injuries sustained and treatment taken by the claimant. As per Ex.P.92 - Wound Certificate, the claimant sustained following injuries:
1. Lacerated wound over the medical aspect of the left leg 5X3X2cm - Bone deep and contaminated.
2. Abrasion over the left side forearm 5X3cm.
3. Abrasion over the chest 3X2cm.
4. Abrasion over the left side face 2X1cm.
11. PW.2 - Doctor stated that the claimant suffers from 15% disability in respect of left lower limb. The Tribunal taking in to consideration, the nature of the work carried on by the claimant and the age of the claimant, assessed whole body disability at 10% which is proper and correct and needs no interference. The claimant was doing timber business and the fracture of left Tibia and Fibula sustained by him would definitely come in the way of his day to day activities. Therefore, taking note of the avocation carried on by the claimant, the nature of the injuries sustained, evidence of PW.2 - Doctor and material placed on records, the Tribunal rightly assessed the whole body disability at 10%.
12. As stated above, the major injuries i.e., fracture of Tibia and Fibula of left leg, Abrasion over medial left leg, the Tribunal failed to award any compensation on the head of ‘Loss of Amenities’. Looking to the injuries sustained by the claimant, I am of the view that the claimant would be entitled for a sum of Rs.25,000/- on the head of ‘Loss of Amenities’. Further, the injuries sustained and treatment taken by the claimant, definitely, he would have been unemployed for a minimum period of three months. As the income of the claimant is assessed at Rs.7,000/- per month, the claimant would be entitled for Rs.21,000/- on the head of ‘Loss of income during the laid up period’.
13. Looking to the injury sustained, treatment taken as inpatient from 04.04.2012 to 16.04.2012 and Pain and Suffering, the claimant would be entitled for another Rs.10,000/- on the head of ‘Pain and Suffering’ in addition to Rs.20,000/- awarded by the Tribunal. Thus, the claimant would be entitled for the following modified compensation:-
Amount in (Rs.)
14. Thus, the claimant would be entitled for a total compensation of Rs.3,12,125/- as against Rs.2,02,725/- awarded by the Tribunal with interest at the rate of 6% per annum from the dated of petition till its realization.
Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal is modified to the above extent.
SD/- JUDGE HA