IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR M.F.A.NO.2130 OF 2016 (MV) Between:
Smt.Usha.R, Aged 39 years, W/o Ranga Raju, R/at No.14, 2nd Cross, Vivekananda Colony, Shakambari Nagar, Kanakapura Main Road, Bengaluru-560 078. ... Appellant (By Sri.Karthik.A.Bhargav, Advocate) And:
1. Sri.Madhu.H.V, S/o not known, Aged about: not known, R/at Heggadevanapura, Alur Post, Dasanapura Hobli, Bengaluru-562 123. (R.C.Owner of Maruthi Omni Car bearing Reg No.KA-52-M-9312) 2. Divisional Office at National Insurance Co. Ltd., Represented by its Manager, Peenya, D-O.VI, Dasappa Complex, T.Dasarahalli, Bengaluru-560 057. ... Respondents (By Sri.H.S.Lingaraju, Advocate for R2;
R1 served and unrepresented) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 14.01.2016 passed in MVC No.4531/2008 on the file of the IX Additional Small Causes Judge, & XXXIV ACMM, Member, MACT-7 Court of Small Causes, Bengaluru, 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 Injured-claimant has presented this appeal challenging the judgment and award dated 14.1.2016 passed in MVC No.4531/2008 on the file of IX Additional Small Causes Judge and XXXIV ACMM, Court of Small Causes, Bengaluru.
2. Sri.Karthik.A.Bhargav, learned advocate for the appellant has urged the following grounds;
(i) the Doctor has opined that the disability of the claimant is 11%, whereas, without assigning any reasons, the Tribunal has considered the disability at 8%;
(ii) the claimant was working as a tailor and his earning capacity has been taken on a lesser side; and (iii) the Tribunal has erred in absolving the Insurer from indemnifying the owner of the vehicle.
3. Sri.H.S.Lingaraju, learned advocate for the Insurer, in his usual fairness, submits that this Court in MFA No.7744/2010 disposed on 12.12.2011 has held that insurer is liable. So far as the disability is concerned, he submitted that the Tribunal may have reduced the percentage of disability after examining the claimant. With regard to the earning capacity, he submitted that the claimant herself has claimed Rs.3,000/- per month. Therefore, the Tribunal has rightly considered the earning capacity of the claimant at Rs.3,000/-.
4. I have carefully considered rival contentions and perused the records.
5. It is relevant to note that in paragraph No.32 of the judgment, Tribunal has recorded that the Doctor has opined the disability of the claimant at 11%. In my considered view, without there being any further medical evidence, the Tribunal could not have reduced the percentage of disability.
6. So far as the earning capacity of the claimant is concerned, the accident is of the year 2008. Claimant herself has averred that her earning capacity was Rs.3,000/-. Hence, there is no error committed by the Tribunal construing the earning capacity of the claimant at Rs.3,000/- per month.
7. In the circumstances, this appeal merits consideration. If the disability of the claimant at 11% as certified by the doctor is taken, the same works out to Rs.63,360/-. The Tribunal has awarded Rs.46,080/- towards loss of disability and the difference is Rs.17,280/-. In view of submission of Sri.H.S.Lingaraju, the insurer shall be liable to indemnify the owner. In the result, I pass the following:
ORDER (i) Appeal is allowed in part.
(ii) A sum of Rs.17,280/- is awarded as additional compensation and in all, it is held that appellant is entitled for a total compensation of Rs.1,42,094/-.
(iii) The Insurer shall deposit the compensation of Rs.1,42,094/- with 6% interest p.a from the date of petition till the date of deposit within four weeks from the date of receipt of copy of this order.
(iv) No costs.
Sd/- JUDGE bkp