IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.440 OF 2014 (MV) BETWEEN:
PAPAIAH, S/O LATE KALAIAH, AGED ABOUT 59 YEARS, R/O #2320, 3RD CROSS, GANDHI NAGAR, MANDYA – TQ & DISTRICT – 571 401. (BY SRI RAJA L, ADVOCATE) AND:
1. M/S. SWASTIK ROAD LINE PVT. LTD., PARKING NO.6, TRANSPORT NAGAR, T.P.NAGAR, GWALIOR, M.P.DISTRICT, MADHYA PRADESH STATE – 474 001. (OWNER OF TRUCK/LORRY BEARING NO.MP-07/HB-1768) 2. N.VEENA, W/O CHANDRASHEKAR, AGE MAJOR, R/O 333/1, BABURAYANA KOPPALU, S.R.PATNA TALUK, MANDYA DISTRICT – 571 401. (OWNER OF AUTORICKSHAW BEARING NO.KA-06/A-1044) ... APPELLANT 3. THE BRANCH MANAGER, UNITED INSURANCE CO. LTD., M.C.ROAD, MANDYA – 571 401.
... RESPONDENTS (BY SRI A.RAVISHANKAR, ADVOCATE FOR R3; R1 AND R2 SERVED UNREPRESENTED) *** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.12.2011 PASSED IN MVC NO.187/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & MACT, PUTTUR SITTING ITINERATE AT BELTHANGADY, DK, 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 before this Court in this appeal not being satisfied with the quantum of compensation awarded by the Tribunal under the Judgment and Award dated 01.10.2012 passed in MVC No.463/2010 on the file of the Addl. Civil Judge & MACT, Mandya (hereinafter referred to as 'the Tribunal' for short). The claim petition was filed under Section 166 of the Motor Vehicle Act (hereinafter referred to as 'the Act’ for short) claiming compensation for the accidental injuries suffered in a road traffic accident.
2. It is stated that on 07.07.2010 when the Claimant was traveling in Autorickshaw bearing registration No. KA-06 / A-1044 as a passenger from S.R.Patna towards M.Shettahally vis Mysore-Bangalore Road, the driver of the Autorickshaw drew the same in a rash and negligent manner. At that time, a Truck/lorry bearing registration No.MP-07 / HB-1768 came in a rash and negligent manner with high speed and dashed to the Autorickshaw. The Autorickshaw toppled and Claimant and other inmates sustained grievous injuries. Immediately, the Claimant was shifted to the Government Hospital, S.R.Patna and then shifted to K.R.Hospital, Mysore. Further, he was referred to JSS Hospital, Mysore. It is stated that Claimant was inpatient totally for a period of 44 days. Claimant was working as Savadi at the Office of the Executive Engineer, Sub-Divisional Office, Pandavapura and was drawing salary of Rs.10,668/- per month. Further, it is also stated that he was doing milk vending business and was earning Rs.10,000/- per month. The Doctor advised him to take rest for eight months and he lost income for the said 8 months.
3. On issuance of notice the respondents No.3 – insurer appeared and filed its statement denying the claim petition averments. The insurer contended that the driver of the offending vehicle was not possessing a valid and effective driving licence to drive the particular category of vehicle as on the date of accident.
4. The claimant examined himself as PW1 and got marked the documents as Ex.P1 to Ex.P18. The Doctor was examined as CW1 and marked Ex.C1 to C3. On behalf of the respondent-Insurer, one document was marked as Ex.R1 – Policy copy.
5. The Tribunal based on the material on record awarded total compensation of Rs.2,25,000/- under heads Pain and Suffering Rs.75,000/-; loss of future earnings Rs.50,000/-; attendant charges and other expenses Rs.50,000/-; medical expenses Rs.50,000/- along with interest at the rate of 9% p.a., from the date of petition till realization. The Claimant being not satisfied with the award of compensation in a sum of Rs.2,25,000/- is before this Court in this appeal praying for enhancement of compensation.
6. Heard the learned counsel for the parties and perused the material on record including the lower court record.
7. The learned counsel for appellant would submit that the Tribunal failed to assess whole body disability and award compensation on the head of future loss of earning. The doctor has opined that Claimant has suffered 70% permanent disability to the upper limb and the Claimant has suffered following injuries:
“(1) Fracture of distal end of right ulna;
(2) Compound fracture of 3rd metacarpal bone of right hand;
(3) Compound fracture of 4th metacarpal bone of right hand;
(4) Fracture of 5th metacarpal bone right hand.”
The Claimant was inpatient for a period of 44 days. Taking note of the nature of injuries and treatment taken, the compensation awarded on the other heads are on the lower side. The Claimant had produced Ex.P16-Salary Certificate. Taking note of the same his income is assessed at Rs.10,668/- per month, but the income earned by the Claimant through milk vending business has not been taken into consideration. Hence, he prays for enhancement of the compensation awarded by the Tribunal.
8. Per contra, learned counsel for respondent - Insurance Company would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that Claimant has not placed any material indicating reduction in salary due to accidental injuries, but he is taking the same salary as he was getting earlier. Further, he submits that the Tribunal has rightly assessed the whole body disability taking note of doctor’s evidence and medical records, which also needs no interference. Therefore, Claimant is not entitled to any compensation under the head of loss of future income. Hence, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the materials placed before the Court, the only point that would arise for consideration is :
“Whether the claimant would be entitled for enhanced compensation under the facts and circumstances of the case?”
10. The answer to the above point is in the affirmative for the following reasons:
11. The accident occurred on 07.07.2010 involving Autorickshaw bearing registration No. KA-06 / A-1044 and Truck/lorry bearing registration No.MP-07 / HB-1768 and the accidental injuries suffered by the Claimant are not in dispute in this appeal. In this appeal the claimant seeks enhancement of the compensation awarded by the Tribunal. Admittedly, the Claimant is a Government servant working as Savadi in the Office of Executive Engineer, Sub-Divisional Office, Pandavapura. Ex.P16 is his salary certificate. Based on the salary certificate, the Tribunal assessed his income at Rs.10,668/- per month. Claimant, even though stated that he was also earning Rs.10,000/- per month by milk vending and he would possess six high breed cows, but he has not placed on record any material to show that he was earning Rs.10,000/- per month by milk vending. In the absence of any material to indicate income earned by the Claimant by milk vending, the Tribunal assessed income of the Claimant based on the salary certificate, which is proper and needs no interference.
12. Further, the learned counsel for Claimant submitted that the doctor, who is examined as CW1, states that Claimant suffered 70% permanent disability to upper limb. The doctor has not stated with regard to permanent disability to the whole body. But the Claimant has not placed any material to show that the accidental injuries or disability affected his day to day activities. Further, the Claimant is a Government servant and he has not placed on record to establish that due to accidental injuries and disability, his salary is reduced or in any way the disability affected his employment as Government servant. Under the said circumstance, the Tribunal is justified in not assessing the functional disability and not allowing any compensation under the head loss of future income. The Tribunal taking note of the fact that the Claimant had suffered injuries extracted above and treatment taken as inpatient for 44 days on intervals, awarded a sum of Rs.75,000/- under the head pain and sufferings; Rs.50,000/- towards attendant charges, which is fair compensation needs no interference.
13. The Tribunal failed to award any compensation under the head loss of amenities. The Claimant has suffered fracture of distal end of right ulna and compound fracture of 3rd, 4th and 5th metacarpal bone of right hand. Hence, the Claimant would be entitled to a sum of Rs.40,000/- under the head of loss of amenities.
14. Thus, the claimant would be entitled for enhanced compensation of Rs.40,000/- in addition to Rs.2,25,000/- awarded by the Tribunal, with interest at the rate of 9% per annum from the date of petition till realization.
Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal is modified to the above extent.
Sd/- JUDGE VK