IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.3831 OF 2016 (MV-I) BETWEEN:
SMT. SUGNANAMMA, W/O. LATE VIJAY KUMAR, AGED ABOUT 53 YEARS, RESIDENT OF UOODAGI VILLAGE, SADEM TALUK, GULBARGA DISTRICT, PRESENTLY RESIDENT OF NEAR SAND LORRY STAND, GUBBALALA GATE, KANAKAPURA ROAD BANGALORE - 62.
... APPELLANT (BY SRI H.B. SOMAPUR, ADVOCATE) AND :
1. M/S. THE ORIENTAL INSURANCE CO. LTD., BY ITS MANAGER, CBO-9, NOS.1 AND 2, II FLOOR, I CROSS, SIDDAPURA, OPPOSITE TO 9TH CROSS, WILSON GARDEN, HOSUR ROAD, BANGALORE - 560 027.
2. SRI S.N. PRASAD, MAJOR, NO.24/25, 5TH CROSS, MANJUNATHA NAGAR, RAGUVANAHALLI GATE, KANAKAPURA ROAD, BANGALORE - 62.
... RESPONDENTS (BY SRI ASHOK N. PATIL, ADVOCATE FOR R1;
SRI R.P. SOMASHEKHARAIAH, ADVOCATE FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR EHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 01.12.2015 PASSED IN MVC NO.737 OF 2015 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, & XXVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR JUDGMENT, THIS DAY, NATARAJAN J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed to consider I.A.No.1/2019, which is for return of lower court records, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the appellant-claimant assailing the judgment and award dated 01.12.2015 passed in MVC No.737/2015 by the Motor Accident Claims Tribunal, Bengaluru (SCCH-9) (hereinafter referred to as ‘Tribunal’).
3. We have heard the arguments of Sri H.B. Somapura, learned counsel for the appellant as well as Sri Ashok N. Patil, learned counsel for respondent No.1 and Sri R.P.Somashekharaiah, learned counsel for respondent No.2.
4. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court.
5. The appellant-claimant filed the claim petition under Section 166 of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) claiming compensation of Rs.20,00,000/- on account of injuries sustained by her in a road traffic accident, inter alia, contending that on 13.12.2014, at about 7.15 p.m., when the claimant was walking on the left side of Kanakapura Main Road, near Gubbalala Gate, Bengaluru at that time, the rider of motorcycle bearing registration No.KA-05/HH-5697 came in a rash and negligent manner and at high speed and dashed against her, due to which she had sustained grievous injuries and took treatment in Mathru Hospital, Bengaluru. Due to the injuries sustained by her, she suffered permanent disability and unable to do any work. She had spent considerable amount towards the treatment as well as conveyance charges etc. Hence, she prayed for awarding compensation.
6. Pursuant to the notice by the Tribunal, respondent No.2 did not appear before the Court and he was placed ex-parte.
7. Respondent No.1-insurance company appeared through counsel and filed statement of objections contending that the accident had occurred on account of negligence of the claimant. However, it admitted the issuance of insurance policy for the offending vehicle. It was further contended that if there is any liability, it is subject to the terms and conditions of the policy. Further, the insurance company denied the disability and the injury sustained by the claimant in the accident including the age, occupation, income and disability of the claimant as false and also took a contention that the claim is exorbitant and hence, prayed for dismissing the claim petition.
8. On the basis of rival pleadings, the Tribunal framed the following issues:
“1. Whether the petitioner proves that the accident dated 13.12.2014 at about 7.15 p.m., near Gubbalala Gate, on Kanakapura Main Road, Bengaluru, was due to rash and negligent riding by the rider of motor cycle bearing No.KA-05/HH- 5697 and that she had sustained injuries due to said accident?
2. Whether the petitioner is entitled for the compensation? If so to what extent and from whom?
3. What order?”
9. To substantiate the contention, the claimant examined herself as PW.1 and also examined the Doctor as PW.2 and got marked 13 documents as per Exs.P1 to 13. Though, respondent No.1 filed the statement of objections, but did not let in any evidence.
10. After considering the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and awarded compensation of Rs.2,97,925/- on the following heads:
Heads Compensation awarded by the Tribunal Injury pain and sufferings Rs.50,000/-
Loss of earning during laid up period Rs.28,000/-
Medical Expenses Rs.3,125/-
Loss of future income due to disability Rs.1,84,800 /-
Loss of amenities Rs.20,000/-
Conveyance, Nourishment food and attending charges Rs.12,000/-
Total Rs.2,97,925/-
Assailing the judgment and award passed by the Tribunal, the claimant has preferred this appeal for enhancement of compensation.
11. Learned counsel for the appellant-claimant contended that the claimant was working as a coolie and earning Rs.9,000/- per month. But the Tribunal has considered income of Rs.7,000/- per month which is meager. Learned counsel also contended that there is no income added towards future prospects of the deceased as per the dictum of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017)16 SCC 680 (Pranay Sethi). Claimant had examined the Doctor and proved disability of 39%, but the Tribunal considered only 26% to the whole body, which is meager. Learned counsel also contended that the Tribunal awarded only Rs.20,000/- towards loss of amenities, which is also meager. The amount awarded towards loss of earning during laid up period is also meager and hence, he prayed for enhancement of compensation.
12. Per contra, learned counsel for the respondent- insurance company supported the judgment and award passed by the Tribunal and contended that though the claimant had pleaded that she was earning Rs.9,000/- per month, no document was produced before the Tribunal.
Therefore, there is no necessity for this Court to enhance the compensation. Hence, learned counsel for the insurer prayed for dismissing the appeal.
13. Upon hearing the arguments of the learned counsel for the appellant as well as respondents and on perusal of the records, the points that arise for our consideration are:
i) Whether the Tribunal is justified in awarding compensation of Rs.2,97,925/- to the claimant?
ii) Whether the appellant is entitled for enhancement of compensation?
iii) What order?
14. The claimant has established before the Tribunal that on 13.12.2014 at about 7.15 p.m., when she was walking on the left side of Kanakapura Main Raod, near Gubbalala Gate, Bengaluru, at that time, the rider of motorcycle bearing registration No.KA-05/HH-5697 came in a rash and negligent manner and at high speed and dashed against her, due to which she sustained grievous injuries and she was shifted to the hospital wherein she took treatment. The claimant also got marked documents namely, Ex.P1-copy of the FIR with complaint, Ex.P3-spot panchanama, Ex.P4-spot sketch, Ex.P5-IMV Report, Ex.P6- wound certificate, Ex.P7-charge-sheet, Exs.8 and 9 are the certified copies of the order-sheet showing a Criminal case registered against the rider of the motorcycle wherein the rider has pleaded guilty and was convicted by the Magistrate. These documents clearly suggest that the rider of the motorcycle admitted the guilt regarding rash and negligent riding and he was convicted and sentenced to pay a fine in the criminal case. Therefore, there is no controversy in respect of the findings of rash and negligence on the part of rider of the motorcycle.
15. The only controversy is with regard to the quantum of compensation awarded by the Tribunal and as to whether it is sufficient or not.
16. The claimant has contended that she was working as coolie and earning Rs.9,000/- per month. This Court also considers notional income of Rs.9,000/- p.m., for an unskilled labourer for the accident of the year 2014. Therefore, the Tribunal has committed an error in considering the income of the injured claimant at Rs.7,000/- per month which is meager. Therefore, we assess Rs.9,000/- per month as notional income. As per the evidence of PW.2-Doctor, the claimant sustained Type III-A Compound Fracture of left forearm and Type 1 Open fracture of both bones of left leg and as per the evidence, the claimant is suffering from permanent physical disability of 26% to the lower limb and 13% of the whole body and also 39% to the left upper limb, which is 13% to the whole body. In total, the claimant is suffering from disability of 26% to the whole body. But, the Tribunal without assigning any reason reduced the disability to 20% to the whole body. Therefore, we are of the view that the disability shall have to be considered at 26% to the whole body. If income of the petitioner is considered as Rs.9,000/- per month and 26% of Rs.9,000/- is Rs.2,340/, same is annualized and by applying appropriate multiplier, it comes to Rs.3,08,880/- (2340x12x11). This would be the loss of earning capacity of the claimant.
17. As per the evidence of the claimant and nature of injuries sustained by the claimant, the appellant has taken treatment as well as bed rest for four months. The Tribunal also considered the laid up period for four months. If the income of Rs.9,000/- is considered, loss of income for four months of the laid up period comes to Rs.36,000/- (9000x4). The appellant-claimant suffered fractures of both the limbs and had undergone surgeries. The Tribunal has awarded Rs.50,000/- towards pain and suffering. The same is retained by us. The claimant has produced the medical bills for Rs.3,125/- and the Tribunal awarded the same. Therefore, we retain the medical expenses of Rs.3,125/-. The Tribunal has awarded Rs.12,000/- towards conveyance, food and nourishment and attendant charges. We also retain the same. The Tribunal has awarded Rs.20,000/- towards loss of amenities, we feel it is meager. Since, the appellant suffered multiple fracture injuries, underwent surgery and sustained disability of 26% to whole body which she has to suffer throughout her life, we propose to award Rs.40,000/- towards loss of amenities instead of Rs.20,000/- awarded by the Tribunal.
18. Thus, the re-assessed compensation is as under:
Heads Compensation awarded by this Court
The compensation is rounded off to Rs.4,50,000/-.
The re-assessed compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization.
The insurance company shall deposit the entire compensation with up-to-date interest before the Tribunal within a period of four weeks from the date of receipt of certified copy of this judgment.
50% of the aforesaid amount shall be deposited in any Post Office or Nationalised Bank deposit for an initial period of five years. She shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to her after due identification.
The appeal filed by the claimant is allowed in part in the aforesaid terms.
Parties to bear their respective costs.
In view of disposal of the appeal, I.A. No.1 of 2019 stands allowed. Office to return the LCR to the concerned Tribunal forthwith.
Sd/- JUDGE Sd/- JUDGE GBB