IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S.G. PANDIT MISCELLANEOUS FIRST APPEAL NO.9483 OF 2015 (MV) Between:
Smt. Uma W/o Magendran Aged about 43 years Residing at No. 19th Cross 3rd Main, Om-Shakti Temple Road Hoysala Nagar Ramamurthy Nagar Bangalore – 560 016 (by Shri Arun Kumar, D N, Advocate) And:
1. Mr. Ateeq Ur-Rahman Sheriff S/o Abdul Jabbar Sheriff Major by age Residing at No.652 25th Cross, 9th Main, 7th Sector, HSR Layout Bangalore – 560 102 2. ICICI Lombard Gen. Ins. Co. Ltd. Office at ICICI Lombard House 414, Veer Savarkar Marg Near Sddhivinayak Temple Prabhadevi, Mumbai 400 025 Represented by its Branch Manager …Appellant Having its branch office at: No.89, SBR complex Madiwala Hosur Mai Road Bangalore – 560 068 Represented by its Branch Manager (by Shri B. Pradeep, Advocate for R2) …Respondents This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act against the judgment and award dated 14.08.2015 passed in MVC No.2603 of 2014 on the file of the XIX Additional Senior Civil Judge and MACT, Bangalore partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming for admission, this day, the Court delivered the following:
J U D G M E N T The claimant is in appeal not being satisfied with the quantum of compensation awarded in judgment and award dated 14th August, 2015 passed in MVC No.2603 of 2014 on the file of the Motor Accident Claims Tribunal, Bangalore (for short hereinafter referred to as ‘the Tribunal’).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained in the road traffic accident. It is stated that on 10th May, 2014 when the claimant was proceeding in front of St. Maries Church, Shivajinagar, a car bearing registration No.KA 55 M 1221 came with high speed in an rash and negligent manner and dashed to her from the back-side. When she fell down, the back wheel of the car ran over the right foot of the claimant. Immediately, she was shifted to Bowring Hospital and thereafter was shifted to Hosmat Hospital for further treatment wherein she was an inpatient from 10th May to 12th May, 2014. Further, the claimant states that she was earning Rs.16,000/- per month by working as housemaid. She was aged about 42 years as on the date of accident. On issuance of notice, both respondents appeared and filed their statements. Both respondents denied claim petition averments. The first respondent stated that the accident in question was solely due to the negligence of the claimant herself. It is also stated that the first respondent paid Rs.1,50,000/- to the claimant at the hospital for treatment and hospital expenses. It is further stated that the vehicle is insured with the respondent No.2-Insurer and the driver was having valid driving licence as on the date of the accident. The respondent No.2-Insurer stated that the driver of the offending vehicle was not holding driving licence as on the date of the accident and prayed for dismissal of the claim petition.
3. The claimant herself examined as PW1 and also examined three witnesses as PW2 to PW4 including Doctor apart from marking exhibits P1 to P23. The respondents have not led any evidence. The Tribunal, on appreciation of material on record, awarded total compensation of Rs.4,31,395/- with interest at 6% per annum from the
4. The claimant, not being satisfied with the quantum of compensation, is before this Court praying for enhancement of compensation. While arriving at the above compensation, the Tribunal assessed the income of the claimant at Rs.8,000/- per month and adopted the multiplier of 14 taking the age of the claimant at 42 years. The Tribunal assessed the whole body disability at 13%.
5. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2-Insurer and perused the material on record. The learned counsel for the appellant submits that the quantum of compensation awarded by the Tribunal is on the lower side and hence prays for enhancement of compensation. It is his submission that the claimant was earning Rs.16,000/- per month. She was working as maid servant in four houses and each house was paying Rs.4,000/- per month. The learned counsel further submits that to substantiate that the claimant was getting Rs.16,000/- per month, she has examined PW2 and PW4, who have stated that the claimant was paid Rs.4,000/- per month from each house where she was working as maid servant. Further, the learned counsel submits that the claimant was an inpatient for a period of 30 days for treatment of the injuries sustained. She has sustained fracture to both bones of right leg, which is a grievous injury. He submits that the compensation awarded under other heads are also on lower side and hence prays for enhancement.
6. Per contra, the learned counsel for the respondent No.2-Insurance submits that the compensation awarded by the Tribunal is just compensation and the same cannot be interfered with in this appeal. He submits that the Trial Court, taking note of the evidence of Doctor PW3 who has stated the claimant suffered disability to the extent of 39% to a particular limb, has taken the whole body disability at 13%, which is correct.
7. Having heard the learned counsel for the parties and on perusal of material on record, the point that arise for consideration is as to whether the claimant would be entitled for enhancement of compensation in the facts and circumstances of the case. The answer to the above point is partly in the affirmative for the following reasons:
8. The accident that took place on 10th March, 2014; the involvement of car bearing registration No.KA 55 M 1221; and the claimant suffering the injuries in the accident are not in dispute. The claimant being not satisfied with the compensation awarded, is before this court in this appeal seeking enhancement in compensation. The claimant states that she sustained fracture of both bones of right leg, i.e. fracture of tibia and fibula. Exhibit P3 is the wound certificate and exhibit P10 is the discharge summary which indicates that the injuries sustained and the treatment taken by the claimant. PW3-Doctor, who is examined on behalf of the claimant, states that the claimant, due to the injuries suffered in the accident, has suffered 39% disability to the right limb. Taking note of the same, the Tribunal has rightly assessed the whole body disability at 13%, which needs no interference. The Tribunal assessed the income of the claimant at Rs.8,000/- per month. The same is on the lower side. The claimant examined PW2 and PW4 who have deposed before the Tribunal that the claimant was working as maid servant in their house and she was paid Rs.4,000/- per month. Except the evidence of PWs.2 and 4, the claimant has not placed any material to indicate the exact income. In the absence of material evidence to indicate the exact income, the Tribunal has assessed the notional income of the claimant at Rs.8,000/- per month. In the cases where the claimants have not established the income by producing documentary evidence, this Court and the Lok Adalats, for the accidents of the year 2014, the notional income is assessed at Rs.8,500/- per month. In the instant case also as there is no material on record to indicate the exact income of the claimant, and considering the year of accident which is 2014, it would be appropriate to take notional income of the appellant-claimant at Rs.8,500/- per month and accordingly the same is taken. Looking at the injuries suffered by the claimant, the quantum of compensation awarded by the Tribunal on various heads is just and proper and needs no enhancement. Thus the claimant would entitled for enhancement compensation under the loss of income as follows:
compensation of Rs.4,42,315/- with interest at 6% per annum from the date of petition till realisation as against Rs.4,31,395/- awarded by the Tribunal.
10. In the result, the appeal is allowed in part. The judgment and award dated 14th Day of August, 2015 passed in MVC No.2603 of 2014 by the Tribunal is modified to that extent.
Sd/- JUDGE lnn