IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL MISCELLANEOUS FIRST APPEAL NO.9147/2010 (MV) BETWEEN:
SURENDER SINGH S/O H NARAYAN SINGH AGED ABOUT 42 YEARS No.1726, 4TH `B’ CROSS 9TH MAIN, HAL III STAGE BANGALORE-560 075. ... APPELLANT (BY SRI R CHANDRASHEKAR, ADV.) AND:
1. THE MANAGING DIRECTOR B.M.T.C. CENTRAL OFFICE K H ROAD, DOUBLE ROAD SHANTHINAGAR BANGALORE-560 027.
2. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED No.19-19/1, SOUTH END ROAD II FLOOR, BASAVANAGUDI BANGALORE-560 04. ... RESPONDENTS (BY SRI GANGADHAR SANGOLLI, ADV. FOR R-2, R1 NOTICE DISPENSED WITH V/C/O DTD.19.2.2016) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 3.5.2010 PASSED IN MVC No.1479/2008 ON THE FILE OF XII ADDITIOHNAL 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 Heard. The appeal is admitted and with the consent of the learned counsel appearing for the parties, the matter is taken up for final disposal.
2. The present appeal has been preferred by the appellant/claimant assailing the judgment and award passed by the Motor Accident Claims Tribunal at Bengaluru (SCCH XII) in M.V.C.No.1479/2008 dated 03.05.2010.
3. The brief facts leading to the filing of the appeal are:
On 16.10.2017, at about 1.00 p.m., the petitioner was proceeding on his motorcycle bearing registration No.KA-03/EN/7524 and when he came at new BEL road, at that time a BMTC bus bearing registration No.KA-03/F/3065 came rashly and negligently and dashed against the motorcycle on which the petitioner was proceeding. As a result of the said impact, the petitioner knocked down on the road and sustained grievous injuries. It is further contended that the petitioner was aged about 40 years and he was working as an employee in Foto Best Private Ltd., Bengaluru and drawing the salary of Rs.9,500/- per month. He further contended that he has sustained permanent disability and because of the injuries, he has sustained huge loss and as such claim petition is filed.
4. In response to the notice, the respondent No.1 remained absent and he was placed exparte. The respondent No.2 appeared through his counsel and its counsel filed the written statement by denying the contents of the petition. Further, it is contended that the petitioner himself came rashly and negligently with high speed and dashed against the front portion of the bus, fell down and sustained injuries. Because of the own negligence of the petitioner, the driver of the bus is not responsible for the alleged accident. It is further contended that if at all any liability is there, it is subject to terms and conditions of the policy and on these grounds, he prayed for dismissal of the said petition.
5. On the above pleadings, the Tribunal framed the following issues:
“1. Whether the petitioner proves that, the injuries sustained road traffic accident that occurred on 16-10-2007 at about 1 p.m., on New B.B.Road, near CPRI Gate, Bangalore due to the rash and negligent driving of the driver of a BMTC bus bearing registration No.KA-01-F-3065 by its driver and as a result petitioner sustained various injuries as stated in the wound certificate?
2. Whether the petitioner is entitled for compensation? If so, for what and from whom?
3. What order or award?”
6. In order to prove the case of the petitioner, the petitioner himself got examined as PW-1 and two witnesses were examined as PW-2 and PW-3 and got marked Ex.P1 to Ex.P15. On behalf of the respondent No.2, he has not led any oral evidence and has also not got marked any documents.
7. After hearing the parties to the lis, the Tribunal by virtue of the impugned order, awarded the compensation of Rs.2,83,000/- with interest of 6% per annum. By assailing the said judgment and award, the claimant is before this Court seeking enhancement of compensation.
8. The main ground urged by the learned counsel for the appellant/claimant is that the appellant/claimant has sustained following injuries:
a) Open contaminated communited fracture mid 1/3 Right femur with wound on the anterior aspect of thigh 5X4X4 inches exposing the fractured bone fragments, muscles and fascia with active bleeding;
b) Fracture right patella;
c) Fracture right trochanter;
d) Fracture left distal radius; and e) Abrasions over both knee and abdomen.
The above said injuries are grievous in nature and he has also placed on record to show that the appellant/claimant has sustained a permanent disability to the extent of 32% but the Tribunal by taking the disability only to the extent of 10%, has awarded the compensation on various heads on the lower side. He has further contended that the Tribunal has not properly considered and appreciated the income of the appellant/claimant though the appellant/claimant has produced Ex.P8 – salary certificate to show that he was working in Foto Best Private Ltd., and was drawing a salary of Rs.9,500/- per month, but the Tribunal after taking the notional income of Rs.3,000/-, has awarded the compensation on various heads on the lower side. He has further contended that the Tribunal has not awarded any compensation on the head of transportation, attendant charges, nutrition and diet. In this behalf also, the appellant/claimant is entitled to be granted a compensation. On these grounds, he prayed for allowing the appeal by enhancement of the compensation awarded by the Tribunal.
9. Per contra, the learned counsel appearing for the respondent No.2 insurance company supported the judgment and award. He further contended that the compensation awarded under the various heads is just and proper. However, he fairly considered that the Tribunal has not awarded any compensation under the head attendant, transportation, nutrition and diet and reasonable compensation may be awarded under the said head. On these grounds, he prayed for dismissal of the appeal.
10. As could be seen from the judgment and award passed by the Tribunal, the appellant/claimant has contended that the appellant/claimant has sustained grievous injuries including the fracture of right femur, fracture of right patella, fracture of right trochanter, fracture of left distal radius and other injuries and he was admitted from 16.10.2007 to 11.11.2007 and further contended that he has sustained 32% of disability to the whole body. Further, he has contended that by taking into the avocation of the petitioner, the disability is going to affect in future and as such the compensation has to be enhanced. As could be seen from the judgment and award, the Tribunal after considering the fact that though the appellant/claimant has contended that he was working with Foto Best Private Ltd., Bengaluru and was earning a salary of Rs.9,500/- per month and has produced Ex.P8 – salary certificate. But in order to substantiate the said fact, he has not examined the person who has issued Ex.P8. In the absence of such proof, the Tribunal has taken the notional income of Rs.3,000/- per month and has awarded the compensation. Under the normal circumstances, the said compensation awarded though justifiable, but however the Tribunal ought to have been taken the year of the accident and the wages prevailing during that period. Admittedly, the alleged accident has taken place on 16.10.2007 and during the said period, the notional income of Rs.4,000/- per month is the yardstick which used to be normally adopted in the absence of any material even in settlement of the cases before the Lok Adalath. If that were to be adopted and as could be seen from the records, the appellant/claimant has got examined PW-3 – Doctor who is an Orthopedic Surgeon, working in Srinivasa Hospital, Bengaluru and after examining the petitioner has assessed the physical disability and even there are no good grounds to say that the said disability which has been assessed is on the higher side. But however, he has not specifically stated that how and in what manner taking into consideration the avocation of the petitioner, the percentage of disability will be 32%. In that light, I feel just and necessary to take only 15% disability and to assess the future loss of income. If that were to be adopted, then under such circumstances, the appellant/claimant is entitled to a sum of Rs.1,08,000/- under the head loss of future income on account of permanent disability to the extent of 15%. Even as could be seen from the judgment and award, the Tribunal has awarded the compensation as mentioned
11. By looking into the compensation awarded by the Tribunal and taking into consideration the 4 fractures, period of treatment and other incidental effect of the said injuries, the compensation awarded under the various heads to be on the lower side. In that light, the compensation is reassessed. The reassessed compensation is as under:
a) Pain and agony Rs.80,000 b) Loss of income during laid up period c) Loss of future income on account of permanent disability 32,000 1,08,000
12. In all, the appellant/claimant is entitled to a total compensation of Rs.4,25,000/-. After deducting a sum of Rs.2,83,000/- awarded by the Tribunal, the appellant is entitled to additional compensation of Rs.1,42,000/- with 6% interest per annum.
Accordingly, the appeal is allowed in part and the judgment and award passed in M.V.C.No.1479/2008 is modified as indicated above.
The respondent No.2 – insurance company is directed to deposit the award amount within six weeks from the date of receipt of copy of this judgment.
Registry is directed to draw the award accordingly and send back the LCR forthwith.
Sd/- JUDGE MKM/NC.