IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29th DAY OF JUNE 2017 BEFORE THE HON’BLE Mr. JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL No.4958/2014 (MV) BETWEEN:
Smt.Susheelamma, W/o.Vamadevaiah, Aged about 52 years, R/o.D.No.1011/3, Hagedibba circle, Hiremath House, Davangere-577 001. …APPELLANT (By Smt.Saritha Kulkarni, Advocate) AND:
1. Veeresh.S, S/o.late Sunkappa, Major, R/o.Bethur Road, Indira Nagar, Davangere-577 001.
2. The Divisional Manager, National Insurance Co.Ltd., Malagiri Plaza, Opp.Dental College Road, Davangere-577 001. …RESPONDENTS (By Sri.L.Sreekanta Rao, Advocate for R-2, Notice to R-1 dispensed with) This MFA is filed u/s.173(1) of MV Act against the Judgment and Award dt.2.1.2014 passed in MVC No.384/2012 on the file of the Principal Senior Civil Judge, Member, MACT-4, Davangere, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for admission, this day, the Court delivered the following:-
JUDGMENT The appeal is preferred against the Judgment and Award dated 02.01.2014. The appellant seeks for enhancement of the compensation awarded in MVC No.384/2012 by the learned Principal Civil Judge and Member, M.A.C.T-IV, Davangere on 2nd January 2014 wherein the injured claimant was granted compensation of Rs.2,11,000/- together with interest at the rate of 6% p.a., from the date of petition till the date of realization. It is stated that the proceedings came to be initiated because of the said accident.
2. To avoid the over-lapping and confusion, the parties are hereinafter referred with reference to the status held by them before the Tribunal.
3. The brief facts as narrated are, on 04.03.2012 at about 1.00 p.m., the petitioner when walking on the left side of Bapuji Hospital road, when she was proceeding near C.G.Hospital gate, Davangere, by that time, Respondent No.1 who was riding the motor-cycle bearing No.KA-17/EE-4097 came in a rash and negligent manner and dashed the petitioner due to which, she fell down and suffered injuries and she was taken to hospital. In this connection, a criminal case is said to have been registered. The Respondent No.1 said to be the owner of the vehicle and Respondent No.2 is the Insurance Company policy of which was held by the owner of the vehicle. The contesting respondent before the Tribunal is Respondent No.2. Notice to Respondent No.2 is dispensed with. The Respondent No.1 contested the matter contending that the petitioner volunteered for risk and sustained injuries.
4. The Insurance Company further claims that there is no fault of the rider and the petitioner was estopped from claiming compensation before the Tribunal and also for enhancement of the compensation before this Court. Pressing on the material proposition asserted and denied along with other relevant material, the Tribunal has framed issues on accident, negligence, injuries and entitlement of compensation.
5. The petitioner has got examined himself as P.W.1 and Dr.Ashwath Acharya as P.W.2 and no witnesses were examined by the respondent/Insurance Company. Documents Ex.P.1 to P.13 were filed including F.I.R, copy of the mahazar, I.M.V report, discharge summary and related documents.
6. The compensation granted to the petitioner is as under:
accident and injury are not disputed and it was submitted that there is no cross-objection or separate appeal filed by the respondents. The petitioner claimed her income at Rs.6,500/- p.m., and the learned member of the Tribunal has considered the notional monthly income at Rs.4,500/- p.m., as against the claim of Rs.6,500/- p.m. The petitioner is said to be an unskilled worker and the advent of the disability through the injury suffered because of the accident stated above has disabled her from claiming the compensation.
8. Learned counsel for the Respondent No.2 would submit that the appellant was not entitled before the Tribunal nor for enhancement by this Court.
9. In the circumstances, being engaged in the Coolie work in the village, the availability of skilled or unskilled labour more particularly manual is not in abundance and also there is a demand for labourers either for domestic or non-domestic work. In the circumstances, the amount of Rs.4,500/- p.m., in the context of the circumstances appears to be too low and requires enhancement to Rs.6,000/- p.m., which ought to have impact on the compensation that was granted as per the prospects of the case when the petitioner could not go for usual work during laid up period. The compensation granted by the learned Tribunal towards loss of future income, is as under:
Rs.72,000/- x 9 x 12/100 = 77,760/-
10. As the accident, injury and entitlement of compensation are not disputed and the bone of contention is regarding the quantum of compensation, for that the influencing factors for arriving at the notional income would be place of residence, age of the person who gets injured on the date of the accident, reduction in earning capacity and related factors. This Court has found the monthly income to be enhanced at Rs.6,000/- p.m., wherein the margin of enhancement would be Rs.1,500/-.
11. It is also to be seen that the petitioner is a lady and was doing Coolie work in the context that the physical health is very much important to resist rush of work in assignments. Moreover, normally, the coolie work is preferred in rural areas provided personnel are hale and healthy and even for considering to take her/him for employment even for domestic work. Considering the said and the related concepts, it is just and proper to award Rs.20,000/- towards loss of amenities. In the light of the loss of future income being awarded, compensation has to be awarded towards loss of income during laid up period as it is the loss of virtual income without default of the petitioner/claimant. Thus, in the context of the case, it is just and proper to consider the monthly income of the petitioner at Rs.6,000/- p.m. In this context, it is just and proper to increase the compensation towards loss of income during laid up period at Rs.12,000/- p.m.
12. In so far as medical expenses are concerned, considering the nature of injury, it cannot be ruled out that the petitioner cannot be permanently away from the apprehension of aggravation of injury.
13. The days are of that nature wherein whatever is not essential now, may become most essential or a necessity in future. In this connection, in the light of granting Rs.85,000/- as medical expenses, the amount of Rs.10,000/- may be considered for future medical expenses. As a result, the compensation requires to be
Thus, this Court finds that the claimant should have been made entitled for the compensation amount of the 2,54,760-00. Award passed by the learned Member falls short of it. It requires to be enhanced by Rs.43,760-00 (Rs.2,54,760-00 - Rs.2,11,000-00).
Otherwise, there are infirmities, irregularities in the Judgment and Award. The Judgment and Award is proportionately liable to be set aside to modify the same from Rs.2,11,000/- to Rs.2,54,760/- to grant enhanced compensation of Rs.43,760/- payable by the respondent No.2/Insurance Company to the petitioner together with interest at the rate of 8% p.a., from the date of petition till realization.
Office is directed to send the copy of the Judgment to the Tribunal.
Amount in deposit shall be transmitted to the Tribunal for disbursement.
Sd/- JUDGE bnv*