IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.8061 OF 2014 (MV) BETWEEN:
SRI V BHIMLANAIAK @ BHEEMANAIAK S/O YANKATANAIK AGED ABOUT 32 YEARS MASALA MERCHANT & AGRICULTURIST R/A CHANNAIAHNAHATI VILLAGE CHITRADURGA TALUK-577519 CHITRADURGA DISTRICT.
...APPELLANT (BY SRI. B G VIJAYA KUMARASWAMY, ADVOCATE) AND:
1. SRI PRAVEEN KUMAR H M S/O NAGABHUSHAN MAJOR IN AGE R/O INDUSTRIAL AREA, SOG COLONY ‘A’ BLOCK, DAVANGERE POST DAVANGERE DISTRICT-577002. (OWNER OF THE MARUTHI OMNI CAR BEARING NO.KA-35/M-1425) 2. THE BRANCH MANAGER THE UNITED INDIA INSURANCE COMPANY LTD., NO.273/13, 1ST FLOOR, MALLIKARJUNA COMPLEX, PRAVASI MANDIRA ROAD DAVANGERE-577002.
…RESPONDENTS (BY SRI. RAVISH BENNI, ADVOCATE FOR R2 NOTICE TO R1 IS D/W) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.1.2014 PASSED IN MVC NO.*406/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-5, CHITRADURGA, 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 23/01/2014 in M.V.C.No.406/2013 on the file of the II Additional Senior Civil Judge & Additional MACT-V, Chitradurga.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, seeking compensation for the accidental injuries suffered in a road traffic accident. It is * corrected vide Court Order dated 16.03.2020.
stated that on 01-8-2012, when the claimant was proceeding as a pillion rider, Maruthi Omni van bearing Reg.No.KA-35/M-1425 came in a rash and negligent manner and dashed against the motorcycle from hind side in which claimant was proceeding as pillion rider. As a result, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Government Hospital, Chitradurga and thereafter to Bapuji Hospital, Davanagere for higher treatment. It is stated that the claimant was doing masala business and was earning Rs.10,000/- per month and Rs.1,00,000/- per annum from agricultural activities.
3. On issuance of notice, both the respondents appeared before the Tribunal and filed their objections separately denying the claim petition averments. Respondent No.1 filed his written statement contending that the vehicle is insured with the respondent No.2- insurer and the driver had valid and effective driving license as on the date of accident. Respondent No.2-
insurer contended that the liability would be subject to validity of RC, FC, permit of the vehicle and driving license of the offending vehicle.
4. The claimant examined himself as PW-2 and marked common documents Exs.P-1 to P-65 in MVC.Nos.405/2013 & 406/2013 arising out of the same accident. Respondents marked document Ex.R-1-Policy copy.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.1,21,778/- with interest at the rate of 6% per annum from the date of petition till the date of deposit, on the following heads:
1. Towards loss of future income due to disability Amount in (Rs.) 61,440 2. Towards pain and suffering 25,000
*Page Nos.4 to 10 are replaced Vide Court Order dated 16.03.2020.
While awarding the above compensation, the Tribunal assessed the notional income of the claimant at Rs.4,000/- per month. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurer. Perused the material on record.
7. Learned counsel for the claimant would submit that the claimant was inpatient for 7 days due to the accident injuries sustained by him. He further submits that Ex.P6- wound certificate would indicate the injuries suffered and treatment taken by the claimant as inpatient. It is his further submission that looking to the injuries suffered and treatment taken, the compensation awarded by the Tribunal is on the lower side. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2- insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. Thus, prays for dismissal of the appeal.
9. 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 income of the claimant assessed at Rs.4,000/- per month is proper and correct?
2) Whether the claimant would be entitled for enhanced compensation?
Answer to the above points are in the negative and affirmative respectively for the following reasons.
10. The accident occurred on 01-8-2012 involving motorcycle and Maruthi Omni van bearing Reg.No.KA-35/M-1425 and the accidental injuries suffered by the claimant are not in disputed in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that he was earning Rs.10,000/- per month by doing masala business and Rs.1,00,000/- per annum by agricultural work. But in support of his contention, he has not produced any document/material to indicate his exact income. In the absence of the material 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. 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 in the absence of any document/material to indicate the exact income of the claimant, it would be appropriate to take Rs.7,000/- per month as notional income of the claimant for determination of the compensation.
11. The claimant has suffered fracture of medial mellolous of right tibia apart from other injuries. Claimant examined himself as PW-1 and PW-3 as Doctor in support of his case who has stated that the claimant suffers from 23% disability to a particular limb and the Tribunal rightly assessed the whole body disability at 8%, which is proper and correct and needs no interference. The claimant had undergone surgery and he was inpatient for 7 days. Looking to the nature of injury and treatment taken as inpatient, the compensation awarded on the head of ‘Travelling expenses, conveyance, attendants charges, diet etc.’ is on the lower side, for which the claimant would be entitled for another sum of Rs.15,000/-. Looking to the injury suffered and fracture of medial mellolous of right tibia, the compensation awarded on the head of ‘loss of future amenities’ is on the lower side, for which the claimant would be entitled for compensation of Rs.20,000/-. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
conveyance, attendants charges, diet etc., 4. Towards loss of future amenities 20,000 5. Towards medical expenses 25,338 Total 1,92,858 12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,92,858/- as against Rs.1,21,778/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
By order dated 06-12-2017 the delay of 217 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 delayed period of 217 days.
Sd/- JUDGE SMJ