IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.7315/2015 [MV] BETWEEN:
RAGHAVENDRA AGED ABOUT 35 YEARS S/O SUBBA NAIK R/AT DEVARABAILU “MATHASHREE” KONI VILLAGE KUNDAPURA TALUK.
(BY SRI.H PAVANA CHANDRA SHETTY, ADV.) AND:
1. THANMAYI P KAMATH AGE: MAJOR W/O PRADEEP KAMATH M/S. SARASWATHI PIPE INDUSTRIES KOTESHWARA KUNDAPURA TALUK-576 201.
2. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE : 1ST FLOOR PUSHPA BUILDING MAIN ROAD, KUNDAPURA UDUPI DISTRICT REP. BY ITS MANAGER-576101.
... APPELLANT (BY SRI R JAYAPRAKASH, ADV. FOR R2 R1- NOTICE D/W V/O DT:07.03.2019) ... RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.04.2015 PASSED IN MVC NO.1046/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant’s appeal for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 16.04.2015 passed in MVC No.1046/2010 on the file of the Senior Civil Judge and Additional Motor Accident Claims Tribunal, Kundapura (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 29.02.2004, when the claimant was standing on the side of the road near M/s.Saraswathi Pipe Industries, Koteshwara, a tempo bearing registration No.KA-20/8807 came in a rash and negligent manner and dashed to the claimant, due to which, the claimant sustained grievous injuries. Immediately, he was shifted to N.R.A.M hospital at Kundapura, wherein he took treatment as inpatient. It is stated that the claimant was working as a coolie and was earning Rs.6,000/- p.m.
3. On issuance of notice, respondent No.2/insurance company appeared before the Tribunal and filed its statement admitting the issuance of insurance policy in respect of the offending vehicle. Further it was stated that the claim is exorbitant and excessive. The insurer also contended that the accident occurred solely due to the negligence of the claimant himself and not due to the negligence of driver of the tempo. It is also contended that the accident had taken place within the premises of M/s.Saraswathi Pipe Industries, when the claimant was on duty.
4. The claimant got himself examined as P.W.1 and also examined P.W.2-Doctor apart from marking the documents as Ex.P1 to Ex.P50. Respondent No.2 examined the witnesses as R.W.1 to R.W.3 and marked the documents as Ex.R1 to Ex.R8.
5. The Tribunal, appreciating the material on record awarded total compensation of Rs.1,28,970/- with interest at the rate of 6% p.a., from the date of petition till deposit, on the following heads:
Not being satisfied with the quantum of compensation, the appellant/claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/insurance company. Perused the material on record.
7. Learned counsel for the appellant would submit that the Tribunal failed to award any compensation on the head of loss of earning during the laid up period and also on the head of loss of future income due to disability. It is his submission that the Doctor has specifically deposed before the Tribunal that the claimant suffers from 10% whole body disability, but the Tribunal failed to assess the whole body disability. It is also his submission that the Tribunal has failed to assess the income of the claimant for the purpose of awarding compensation on the head of loss of future income due to disability. It is submitted that the claimant has suffered fracture of pelvic bone, which is a major injury, for which, he was inpatient for 20 days. Looking to the injuries suffered and treatment taken as inpatient for 20 days, the compensation awarded by the Tribunal is on the lower side and prays for enhancement of compensation.
8. Per contra, learned counsel for the second respondent/insurance company submits that the compensation awarded by the Tribunal is just compensation which needs no interference.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arises for consideration in this appeal is as to:
“whether the claimant would be entitled for enhanced compensation, in the facts and circumstances of the case?”
10. Answer to the above point is in partly affirmative for the following reasons:
The accident occurred on 29.02.2004 involving the tempo bearing registration No.KA-20/8807 and the accidental injuries suffered by the claimant are not in dispute in this appeal. Claimant’s appeal is for enhancement of compensation. The claimant had suffered fracture of pelvic bone and the Doctor-P.W.2 has stated that the claimant suffers from 10% whole body disability. On perusal of the evidence of Doctor, it is seen that the Doctor has stated that the claimant suffers from disability of 10% to his waist and not to whole body. Further, the claimant has failed to establish the functional disability due to the accidental injuries. In his evidence, the claimant has deposed that he is earning more than what he was earning prior to the accident. Hence, the Tribunal has not assessed the whole body disability or functional disability. The claimant states that he was earning Rs.6,000/- p.m. The accident is of the year 2004. The income of the claimant in the year 2004 could be assessed at Rs.4,000/- p.m.
11. Looking to the injuries suffered and treatment taken, the claimant would have been out of employment for nearly four months. Hence, he would be entitled for loss of earning during the said period of treatment. If the income of the claimant is taken at Rs.4,000/- p.m., for four months he would be entitled for a sum of Rs.16,000/- towards loss of income during the laid up period. The compensation on other heads is fair compensation, which needs no interference. Thus, the claimant would be entitled for another sum of Rs.16,000/- in addition to Rs.1,28,970/- awarded by the Tribunal, with interest at the rate of 6% p.a., from the date of petition till realization.
12. Accordingly, the appeal is allowed in part. The judgment and award dated 16.04.2015 passed in MVC No.1046/2010 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Kundapura is modified to the above extent. The claimant would be entitled to enhanced compensation of Rs.16,000/- in addition to the compensation awarded by the Tribunal.
Sd/-
JUDGE mpk/-* CT:bms