IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1002 OF 2014 (MV - I) BETWEEN:
SRI. VISHWESHWARAPPA K.H. @ VISWANATH, AGED ABOUT 62 YEARS, S/O HANUMANTHAPPA, R/AT NO. 158, 4TH MAIN ROAD, 4TH CROSS, NGEF LAYOUT, SANJAYANAGAR, BANGALORE – 560 094. ... APPELLANT (BY SRI. K.R.RAMESHA, ADVOCATE) AND:
1. SMT. FARIDA, D/O ABDUL AFUR KHAN, AGED IN MAJOR, R/AT 113, DEVASANDRA, 10TH CROSS, MAZID ROAD, BANGALORE.
2. THE MANAGER, SHRIRAM GENERAL INSURANCE CO. LTD., NO.E-8, EPIP, RIICO, SITAPURA, JAIPUR RAJASTHAN – 302 022. ... RESPONDENTS (BY SRI B.PRADEEP, ADVOCATE FOR R2; NOTICE NOT ORDERED IN RESPECT OF R1) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2013 PASSED IN MVC NO.3749/2012 ON THE FILE OF THE 22ND ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, 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 16/11/2013 in M.V.C.No.3749/2012 on the file of the XXII Additional Small Causes Judge & Member MACT, Bangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained in a road traffic accident. It is stated that on 27-4-2012, when the claimant was travelling in Chevrolet car bearing Reg.No.KA-17-A-8616 along with his family, the driver of the Eicher Canter bearing Reg.No.KA-01-AA-3954 came in a rash and negligent manner and dashed to the vehicle in which claimant was travelling. As a result, the claimant fell down and sustained severe injuries. Immediately, the claimant was taken to Sapthagiri Hospital, Bangalore and thereafter to M.S.Ramaiah Hospital, where he took treatment as inpatient for three days. It is stated that the claimant was running the trading business under the name of Veerabhadreshwara Trading Company and was earning more than Rs.1,00,000/- per month. The claimant was aged 60 years as on the date of accident.
3. On issuance of notice, respondent No.2-Insurer appeared before the Tribunal and filed its written statement. Respondent No.1 remained absent. Respondent No.2 in its written statement denied the claim petition averments but admitted the issuance of policy in respect of offending Eicher Canter. Further, it is stated that the driver of the Eicher Canter had no valid and effective driving licence as on the date of accident. Hence, there is violation of policy conditions. It is also further stated that the accident occurred was not due to the rash and negligent driving of the driver of Eicher Canter, the accident had occurred solely due the negligence of driver of the Chevrolet car. Thus, prays for dismissal of the claim petition.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-33. No evidence or documents were marked on behalf of the respondents.
5. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.1,14,329/- with interest at the rate of 6% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and suffering 25,000 2. Medical expenses 55,829 3. Conveyance charges 2,000 4. Attendant charges and nourished food 1,500 5. Future Medical expenses 10,000 6. Loss of amenities of life 10,000 7. Loss of income during the 10,000 period of treatment Total 1,14,329 The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant-claimant and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side and prays for enhancement of compensation. He further submits that the claimant has produced Ex.P-32-Income Tax Returns filed for assessment year 2011-2012, wherein, the claimant has shown the total net income of Rs.3,59,720/-. But the Tribunal without appreciating Ex.P-32 has proceeded to award compensation. It is his further submission that the Doctor has opined that the claimant suffers from 26% disability to a particular limb and 9% disability to the whole body. But the Tribunal failed to award any compensation on the head of ‘Loss of income due to disability’. Learned counsel further contended that the compensation awarded on the various heads are on the lower side when compared to the injuries sustained and treatment taken by the claimant.
8. Per contra, learned counsel for the respondent- Insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that even though PW2- Doctor stated that the claimant suffers from 26% disability to a particular limb and 9% disability to the whole body, the Tribunal rightly not awarded any compensation on the head of ‘Loss of income due to disability’, taking note of evidence of PW1, who has stated that he is doing the same business which he was doing earlier. The claimant has not placed on record any document/material to show that there is reduction in his income due to the accidental injuries suffered by him. Hence, the claimant would not be entitled for compensation on the head of ‘Loss of income due to disability’. Thus, he prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record including the lower court records, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation. Answer to the said point would be in partly affirmative for the following reasons.
10. The accident that took place on 27-4-2012 involving Chevrolet car bearing Reg.No.KA-17-A-8616, Eicher Canter bearing Reg.No.KA-01-AA-3954 and the accidental injuries suffered by the claimant are not in dispute in this appeal. It is true that the claimant placed on record Ex.P32- Income Tax Returns filed for the assessment year 2011- 2012, wherein he has shown the total income as Rs.3,59,720/- and has paid total tax of Rs.22,763/- but claimant has not place on record subsequent years Income Tax Returns filed and also not placed on record any material to show that due to accidental injuries sustained by him, he is not in a position to do the work as he was doing earlier. In the absence of those documents/materials and as the claimant himself has admitted that he is doing the same business which he was doing earlier, the Tribunal rightly not awarded any compensation on the head of ‘Loss of income due to disability’. Ex.P6-wound certificate and Ex.P7-discharge summary would indicate the accidental injuries sustained and treatment taken by the claimant. The claimant has sustained fracture of both bones of right forearm and underwent open reduction and internal fixation with DCP. He was inpatient for three days. Looking to the nature of injuries suffered by the claimant and treatment taken as inpatient for three days, I am of the view that the compensation awarded on the heads of ‘Conveyance charges, Attendant charges and nourished food, Loss of amenities of life and Loss of income during the period of treatment’ are on the lower side. The claimant would have out of employment for minimum period of three months.
Looking to the business carried on by the claimant, he would be entitled for another Rs.15,000/- on the head of ‘Loss of income during the period of treatment’. Further, the claimant would be entitled for another sum of Rs.15,000/- on the head of ‘Loss of amenities of life’. Thus, the claimant-appellant would be entitled for modified
11. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,55,829/- as against Rs.1,14,329/- 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.
Sd/- JUDGE SMJ