IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.9356/2013 [MV] BETWEEN:
VENKATESH R S/O RAJU AGED ABOUT 20 YEARS R/AT GANGANNA BUILDING 1ST MAIN ROAD, 5TH CROSS KAVERIPURA, KAMAKSHIPALYA BANGALORE-560079 ... APPELLANT (BY SRI MAHADEVA SWAMY P, ADV.) AND:
1. THE REGIONAL MANAGER NEW INDIA ASSURANCE CO LTD BANGALORE OFFICE (HUB) NO.2-B, UNITY BUILDING, ANNEX, P KALINGA RAO ROAD BANGALORE-27 2. SRI V SHIVASHANKARI S/O VENKATESHAN NO.62/2, 2ND FLOOR 1ST MAIN, 2ND CROSS, PRAKASHNAGAR BANGALORE-560010 ... RESPONDENTS (BY SRI K POORNABHODA RAO, ADV. FOR R1; R-2 NOTICE NOT ORDERED.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.02.2013 PASSED IN MVC NO.2463/2011 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, 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 appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 05.02.2013 passed in MVC No.2463/2011 on the file of XIII Additional Judge and Member MACT, Court of Small Causes, Bangalore.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained in the Road Traffic Accident that occurred on 01.01.2011. It is stated that on 01.01.2011 when the claimant was proceeding along with a pillion rider on his Motor Cycle bearing Reg.No.KA-04-EY-2617 near KHB Junction, Magadi Main Road, Bangalore, at that time a Tempo bearing No.KA-02-D-9828 came in a rash, negligent manner and dashed against the claimant, due to the impact, the claimant fell down and sustained grievous injuries. Immediately he was shifted to Indus West side Hospital, wherein he was inpatient from 01.01.2011 to 14.01.2011. It is stated that the claimant was aged 17 years as on the date of accident.
3. On issuance of summons, the 1st respondent – Insurance Company appeared before the Tribunal and filed its objection denying the petition averments and also contended that the driver had no valid and effective driving license as on the date of accident. Further it is stated that the claimant himself was responsible for the accident. The claimant examined himself as PW.1 and examined the Doctors PWs.2 to 4 apart from marking the documents Exs.P.1 to P.17. The Tribunal on assessing the material on record taking the notional income of the claimant at Rs.4,000/- per month and assessing the whole body disability at 20% awarded total compensation of Rs.9,80,800/- on the following heads:-
Total Rs.9,80,800/-
Not being satisfied with the quantum of compensation awarded by the Tribunal, the appellant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 1st respondent – Insurance Company. Perused the appeal papers and the lower court records.
5. The learned counsel for the appellant would submit that the claimant was aged 17 years as on the date of accident and the income of the claimant taken at Rs.4,000/- pm is on the lower side. He submits that the injured claimant was inpatient for 15 days. PWs.3 and 4 – the Doctors, who were examined in support of claimant’s case have opined that the claimant suffers from 14% and 20% whole body disability respectively. It is stated that PW.3 – the Doctor has deposed with regard to the fractures and disability by virtue of fracture, whereas PW.4 has deposed with regard to abdominal injury suffered by the claimant. Thus the total disability taken at 20% by the Tribunal is on the lower side.
6. Per contra, the learned counsel for the 1st respondent – Insurance Company submits that the Tribunal has awarded just compensation and needs no interference.
7. On hearing the learned counsel for the parties and on perusal of the lower Court records, the only question that would arise for consideration in this appeal is as to “Whether the claimant is entitled for enhanced compensation ? ” The accident that occurred on 01.01.2011 involving the Motor Cycle bearing No.KA-04- EY-2617 and Tempo bearing No.KA-02-D-9828 and the accidental injuries suffered by the claimant is not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. Admittedly the accident had taken place on 01.01.2011. The claimant was aged 17 years as on the date of accident. The Tribunal had taken the notional income of the claimant at Rs.4,000/- per month for determination of compensation. The claimant is a student aged 17 years. The notional income taken by the Tribunal is on the lower side. This Court and Lok Adalath while determining the ‘Loss of future income’ for the accidental claims of the year 2010 and 2011 would normally take notional income of Rs.5,500/- per month. Hence, in the instant case, in the absence of any documents to indicate the exact income of the appellant, I deem it appropriate to assess the notional income at Rs.5,500/- per month. The claimant has suffered grade 2 compound fracture shaft and femur, closed fracture distal end or left radius, haemoperition rupture of left liver and spleen, right phemothorax, lateral and posterior wall of maxillary bone fracture, upper and lower lip deep laceration. PW.4 – the Doctor has stated that the claimant has suffered abdominal injuries, on the basis of X-ray report and CT scan report that the claimant has suffered 20% whole body disability, whereas PW.3 – the Doctor has stated that the claimant suffers from 14% whole body disability. The Tribunal taking note of the evidence of PWs.3 and 4 – the Doctors, and on analyzing the medical records has taken the whole body disability at 20% to assess the ‘Loss of income due to disability’, which needs no interference. Thus the claimant would be entitled for the following enhanced compensation:-
9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.10,45,600/- as against Rs.9,80,800/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms