IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE H.T. NARENDRA PRASAD MFA NO. 854 OF 2015 (MV) BETWEEN SYED ZAKIR S/O SYED SAIFUDDIN AGED ABOUT 27 YEARS R/AT NO. 168 4TH CROSS, GHOUSIA NAGARA MYSORE.
... APPELLANT (BY SRI. V. PADMANABHA KEDILAYA - ADVOCATE) AND 1. C. JAYARAM S/O LATE CHOWDAIAH AGED ABOUT 43 YEARS R/O NO. 19/1, II CROSS MADHYA RAMAMANDIRA ROAD KUMBARAKOPPAL MYSORE.- DELETED 2. K. RANAGASWAMY S/O LATE KUSSANNASETTY AGED 51 YEARS D. NO. 10/A BANNIMANTAP INDUSTRIAL AREA OPP. RAILWAY GOODS SHED MYSORE-570015.
3. RELIANCE GENERAL INSUREANEC CO. LTD., I FLOOR, MYSORE TRADE CENTRE OPP. KSRTC BUS STAND BN ROAD, MYSORE-1.
... RESPONDENTS (BY NOTICE TO R-1 & R-2 ARE DISPENSED WITH V/O DATED 23.02.2015;
SRI. ASHOK N. PATIL – ADV., FOR R-3) THIS MFA IS FILED UNDER SECTION 173 OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.03.2014 PASSED IN MVC NO. 780/2012 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT JUDGE, MACT-4, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant has filed this appeal challenging the judgment and award dated 29.03.2014 passed by the IV Addl.District Judge and Motor Accidents Claims Tribunal – IV, Mysore, in MVC No.780/2012 whereby the Tribunal has granted compensation of Rs.1,07,540/- with interest @ 6% p.a.
2. Brief facts of the case are that on 16.10.2011 at about 3.30 p.m. the petitioner was returning from Bangalore in Ape Auto bearing Regn.No.KA-09-B-4672 with goods and auto was parked near Gouripura, beside CDS Canal, S.R.Patna and petitioner was checking the oil of the auto, at that time, the driver of lorry bearing Reg.No.KA-05-AA-6573 drove the same in rash and negligent manner with high speed and dashed the lorry against the auto bearing No.KA- 09-B-4672. As a result of which, the said auto dashed against a vehicle bearing Regn.No.KA-53-9359. Due to the said accident, petitioner sustained severe injuries. He was shifted to K.R.Hospital, Mysore for treatment and he took treatment there for long time. After recovering from the injury the claimant filed the claim petition before the MACT in MVC No.780/2012.
3. In order to establish his case, the appellant examined himself as PW.1 and he has examined Dr.Jagadeesh as PW.2 and Dr.Kiran Kalaiah as PW.3 and marked 18 documents. On other hand, the insurance company neither examined any witness nor marked any documents. On appreciation of oral and documentary evidence, the Tribunal granted compensation of Rs.1,07,540/- with interest @ 6% p.a. Being aggrieved by the same, the appellant has filed this appeal for enhancement of compensation.
4. Sri Padmanabha Kedilaya, learned counsel for the appellant submits that at the time of accident, appellant was aged 24 years and he was working as agriculture coolie and earning Rs.250/- to Rs.350/- per day. The Tribunal is not justified in taking the notional income of the appellant as Rs.3,000/- per month. It is further contended that due to the accident, the appellant has suffered abrasion over the left groin present, a cut lacerated wound over the right forearm measuring 4 x 2 c.m., tenderness present, fracture of both bones of right forearm and fracture of superior and inferior public rami on left side. The claimant has examined Doctors as PW.2 and PW.3. PW.3 Doctor states that there is disability of 25% to the right hand and 28% to the left leg. The Tribunal has taken the disability only to the extent of 3% which is on lower side. Hence, he sought for enhancement of compensation.
5. Per contra, Sri Ashok N.Patil, learned counsel appearing for the insurance company submits that even though the claimant has examined the Doctor, but the Doctor in his cross-examination has specifically stated that he cannot say disability to the whole body and therefore, the Tribunal has rightly taken 3% disability. He further contended that even though the claimant has claimed that he was earning Rs.250/- to Rs.350/- per day, he has not produced any document to establish his income. Therefore, the Tribunal has rightly taken income of the claimant as Rs.3,000/- per month. Hence, he sought for dismissal of the appeal.
6. Heard learned counsel for the parties and perused the records.
7. It is not in dispute that the appellant was injured due to the accident that occurred on 16.10.2011 due to rash and negligent driving of the driver of lorry bearing Reg.No.KA-05-AA-6573. Due the accident, the appellant has suffered the following injuries:
i) Abrasion over the left groin present ii) A cut lacerated wound over the right forearm measuring 4 x 2 c.m., tenderness present Case sheet at Ex.P.15 shows:
iii) Fracture of both bones of right forearm iv) Fracture of superior and inferior public rami on left side.
8. The appellant has examined PW.3 – Dr.Kiran Kalaiah. He has specifically stated in deposition that the appellant has got disability of 25% to his right hand and disability of 28% to his left leg. But the Tribunal is not justified in taking only 3% disability to the whole body. After seeing the material available on record, it is the opinion of this Court that the whole body disability should be taken at 15%. Accordingly, the whole body disability is taken at 15%.
9. At the time of accident, the claimant was aged about 24 years and he was working as agriculture coolie. Even though the appellant has claimed that he was earning Rs.250/- to Rs.350/- per day, but he has not produced any document to establish his case. Under the circumstances, the Tribunal was left with no other alternative but to assess the notional income of the claimant as Rs.3,000/- per month, which is on the lower side. In catena of decisions, while calculating the notional income this Court has taken into consideration the chart prepared by the Lok Adalat for deciding the cases. As per the chart, for the accident of the year 2011 the notional income has to be fixed at Rs.6,500/-. Accordingly, ‘loss of future income’ is worked out as under:
Rs.6,500 x 18 x 12 x 15% = Rs.2,10,600/-
10. In view of enhancement of monthly income of the appellant at Rs.6,500/-, the loss of income during laid up period has to be calculated. Accordingly, it will be Rs.19,500/- instead of loss of leave at Rs.3,700/-.
11. Accordingly, the judgment and award passed by the Tribunal, is modified as under:
Compensation under different Categories As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.)
income during laidup period Food and nourishment attendant charges and conveyance Loss of future amenities and happiness 7,400/- 7,400/-
10,000/- 10,000/-
Total 1,07,540/- 3,14,500 The Insurance Company is directed to deposit the enhanced compensation amount along with interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of four weeks from the date of the receipt of a copy of this order. The amount so deposited by the Insurance Company shall be disbursed to the claimant, after due verification of his identity.
With the above modifications the appeal is allowed in part.
DKB Sd/- JUDGE