IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.382 OF 2013 (MV) Between:
Suresh.C.K, S/o Channabasavaiah, Aged about 34 years, Dhanavadi Gate, Arekere Village, Bhadravathi. ... Appellant (By Sri. Showri H R, Advocate) And:
1. P.P.Raphy, S/o Paly, Aged about 46 years, House No.63/03, Kateramma Temple, J.P.Nagara, 8th Block, Kothanur Dinne, Bengaluru.
2. Managing Partner, M/s. Durgamba Motors, 1, 100 Feet Road, 4th Block, Koramangala, Bengaluru.
3. The New India Assurance Company Limited, Pushpa Building, Main Road, Kundapura-576 201. ... Respondents (By Sri C.V.Kumar, Advocate for R2, R1-served unrepresented) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated 25.8.2012 passed by the Court of the Principal Senior Civil Judge and JMFC & Additional Motor Accident Claims Tribunal-12 at Bhadravathi, in MVC No.53/2010 by enhancing the amount of compensation and interest awarded and further order that the petition filed by the appellant herein before the Motor Vehicle’s Accident Claims Tribunal be allowed as prayed for and allow this appeal with costs to be payable by the respondents to meet the ends of justice.
This Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT Though this appeal is listed for admission, the same is taken up for final disposal at the consent of both the learned counsel.
2. This is claimant’s appeal seeking enhancement of compensation awarded by the Tribunal in MVC.No.53/2010, whereby a total compensation of Rs.2,25,000/- has been awarded to the claimant.
3. It is the case of the Appellant/Claimant that on 25.09.2009, he along with other passengers travelled in a Tata Indica car bearing Reg.No.KA14-A-2452 from Bengaluru to Kodachadri Hill Station. On 26.09.2009, at about 4.00 a.m., near Chatnahalli village gate in Birur, when he was driving the said car, a bus bearing Reg.No.KA01-B-5924 driven by its driver in a rash and negligent manner dashed against his car from back side and due to said impact, his car was badly damaged and he and other passengers of the car sustained injuries.
4. It is the further case of the claimant that he was the owner-cum-driver of the Tata Indica car, earning a sum of Rs.20,000/- per month. On account of the accident, he suffered disability to an extent of 20% with restricted movements of left shoulder. A total compensation of Rs.11,85,000/- was claimed for the injuries sustained and for the damage caused to the car.
5. Before the Tribunal, the claimant got examined himself as PW-1 and examined one more witness as PW-2, the person who assessed the damage to the car. Cw-1 is a doctor, who issued the disability certificate. Ex.p.1 to Ex.p.19 and Ex.C1 and Ex.C4 were marked in evidence.
6. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.2,25,000/- under the following heads:
1. Pain and Sufferings: Rs.40,000=00 2. Loss of amenities, future unhappiness & discomforts:
Rs.20,000=00 3. Medical expenses: Rs.05,000=00 4. Loss of income during treatment and laid up period & the time required for repair of damaged car:
Rs.10,000=00 5. Future loss of income due to disability:
Rs.45,000=00 6. Attendant & Miscellaneous expenses:
Rs.03,000=00 7. Charges for transportation of car: Rs.02,000=00 8. Loss sustained due to damages of the car:
Rs.1,00,000=00 Total: Rs.2,25,000=00 7. It is the contention of the learned counsel for the appellant that the Tribunal has taken the income of the appellant as Rs.10,000/- but reduced it to 5000/- per month while calculating the loss of income due to disability. He further submitted that though the doctor has assessed the disability at 20%, however, the Tribunal has taken the functional disability at 5%. It is also his submissions that over all compensation awarded under different heads including the sum awarded for the damage caused to the car are on the lower side. Accordingly he seeks to enhance the compensation awarded by the Tribunal.
8. Per contra, learned counsel appearing for the Insurance Company justifies the quantum of compensation awarded and sought to dismiss the appeal.
9. It is the contention of the learned counsel for the appellant that the appellant was earning a sum of Rs.20,000/- per month. Except the oral testimony of the appellant, there is no other acceptable evidence to hold that he was earning a sum of Rs.20,000/- per month. The appellant has produced Ex.P.19-salary certificate. However, the person who issued the salary certificate has not been examined. However, it is seen that the Tribunal has taken the income of the appellant as Rs.10,000/- per month and reduced it to Rs.5,000/- which, in my view is not proper.
10. The doctor has assessed the disability of the appellant at 20%. However, it is not stated as to whether the disability assessed was to the whole body or to the particular limb. It is stated that the movement of the left shoulder was restricted to 5% to 10%. In that view of the matter, the disability taken as 5% to the whole body cannot be said to be erroneous. At the time of accident, the age of the claimant was 37 years and therefore appropriate multiplier is 15. Hence, the ‘loss of income due to disability’ can be assessed at Rs.90,000/- (Rs.10,000 x 12 x 15 x 5/100) 11. The Tribunal has awarded Rs.10,000/- towards loss of income during treatment and laid up period, the same is enhanced to Rs.20,000/-. The compensation awarded towards attendant, miscellaneous expenses and charges of transportation of car is enhanced from Rs.5,000/- to 10,000/-.
12. It is the contention of the learned counsel for the appellant that the surveyor has assessed the damage caused to the car at Rs.1,84,193 and 2,763/-, is the survey and assessment fee. Hence claims Rs.1,86,986/-towards damage caused to the car and survey fee. In this regard, it is relevant to see that the Tribunal has noticed that the car which was involved in the accident was of 2007 model and the accident occurred in the year 2009. It was also observed by the Tribunal that PW.2 has not assessed the value of the damaged car by giving depreciation having regard to its use for more than two years.
13. On perusal of the damages to the car shown in Ex.P.7 – MVI report and Ex.P.9-survey report and also photos appended at Ex.P.10, it is evident that, the rear portion of the car was damaged, engine and the front portion of the car was not damaged. Considering the same the Tribunal has awarded a sum of Rs.1,00,000/- towards damage caused to the car. The finding in this regard cannot be said to be erroneous. Hence, the claimant is entitle for a total compensation of Rs.2,85,000/- as against Rs.2,25,000/- awarded by the Tribunal. For the foregoing reasons, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 25.08.2012 passed in MVC No.53/2010 on the file of Court of the Principal Senior Civil Judge and J.M.F.C & Additional MACT-12 at Bhadravathi is hereby modified.
The appellant/claimant shall be awarded a compensation of Rs.2,85,000/- as against Rs.2,25,000/- awarded by the Tribunal. The enhanced compensation of Rs.60,000/- shall carry interest at 6% p.a. from the date of petition till its realization.
Sd/- JUDGE rv