IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE M.F.A. NO.5831 OF 2017 (MV) BETWEEN:
SYED KOUSAR SHAMEEM W/O SYED ZUFRULLA FEMI, AGED ABOUT 36 YEARS, R/AT NO.571 G.M. ROAD DIARA, CHANNAPATTANA TOWN RAMANAGARA DISTRICT – 571 511 (BY SRI.VIVEKANANDA T.P., ADV.) AND:
... APPELLANT 1. ARUNA.A. S/O.ARJUNAN R/AT NO.208, 7TH CROSS ROAD, MUNIYALAPPA GARDEN KADDERAPPA ROAD COX TOWN BENGALURU - 560 005 2. IFFCO TOIKO GENERAL INSURANCE COMPANY LTD., NO.846, NEW KANTHARAJ ROAD NEAR AKSHAYA BHANDRA KUVEMPUNAGAR MYSORE – 570 023 ... RESPONDENTS (BY SRI.N.NAGARAJA, ADV. FOR R1;
SRI.E.I.SANMATHI, ADV. FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.02.2017 PASSED IN MVC NO.516/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, ADDITIONAL MACT, CHANNAPATTANA, RAMANAGAR DISTRICT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T On 18th July 2014 when the claim petitioner was proceeding along with one Syed Zufrulla Femi on Activa Honda motorcycle bearing Registration No.KA 42 L 8301, the offending vehicle bearing registration No.KA 01 AD 0141 came in a rash and negligent manner and dashed against the motorcycle and the impact of which the petitioner sustained injuries. Hence, she made a claim petition before the Motor Accident Claims Tribunal, Channapatna. The Tribunal, by its judgment and award passed in MVC No.516 of 2014 awarded the compensation of Rs.1,56,800/- with interest at 6% per annum from the date of petition till the date of deposit. Being not satisfied with the compensation amount, this appeal is preferred, seeking enhancement.
2. The learned counsel appearing for the appellant submits though the claimant has claimed that she was working in Shanthiniketana School and was earning Rs.16,000/- per month, the Tribunal has disbelieved the same and has taken the notional income at Rs.5,000/- per month which is an error. He also submits that the though the Doctor has opined that the injured has suffered 33.60% disability, the Tribunal has committed an error in taking the disability at 8% to the whole body. He also submits that the compensation awarded by the Tribunal under other heads is also meager. It is his further submission that the Tribunal has not any amount towards attendant charged, god, nourishment and incidental expenses. Hence, he submits that the compensation needs to be enhanced suitably.
3. The learned counsel appearing for the respondent- Insurer submits that the Tribunal has awarded just and proper compensation based on the material and documentary evidence placed before it and there is no ground for interference in this appeal and hence prays for dismissal of the appeal.
4. Heard the learned counsel for the parties and gone through the judgment and award. The impact of the accident is that the petitioner sustained injury with RTA with IDK right knee with fracture comminution and depression of tibial plateau of right knee and said injuries are grievous in nature. The injured was an inpatient for about two days and she was treated conservatively. The Doctor has opined that the injured has suffered 33.60% disability to the whole body. When the Doctor who has treated the injured has opined that the injured has suffered 33.60% to the lower limb, the whole body disability comes to 11.2% and that should have been taken. The Tribunal has committed an error in taking the disability at 8%. Accordingly, the disability is to be taken at 11.2% as against 8% taken by the Tribunal. Secondly, when the injured has claimed that she was earning Rs.16,000/- per month and when there is no documentary proof produced to that effect, then the notional income should be taken. The notional income is to be taken considering the year of accident, place of residence, cost of living prevalent then, etc. With relevance to the accident of the year 2014, this court will normally assess the notional income at Rs.8,500/- per month and the same is taken in this case also. Accordingly, the compensation under the head loss of future income comes to Rs.8,500/- x 12 x 16 x 11.2% which comes to Rs.1,82,784/- and the same needs to be awarded as against Rs.76,800/- awarded by the Tribunal. By taking the income at Rs.8,500/- per month and considering that the injured had taken three months rest, the compensation under the head loss of income during the laid up period comes to Rs.25,500/-. The same needs to be awarded as against Rs.15,000/- awarded by the Tribunal. Considering the pain and agony underwent and also taking into account the fact that the difficulty to be undergone by the injured for the rest of her life, an amount of Rs.20,000/- each is required to be awarded under the head pain and suffering and under the head loss of amenities in addition to what has been awarded by the Tribunal. The compensation awarded by the Tribunal under other heads remains unaltered. Since the enhanced compensation also carries interest, in the facts and circumstances of the case, in my considered opinion, awarding a further global compensation of Rs.1,95,000/- would meet the ends of justice. Accordingly it is awarded. Appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn