IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.5008 OF 2012 (MV) BETWEEN:
VIJAYAKUMAR S. M.
S/O. LATE MANJUNATHA S.V., AGED ABOUT 24 YEARS, RESIDENT OF 3RD CROSS, HOSAMANE, SHIVAMOGGA – 577 201.
... APPELLANT (BY SRI S. KIRAN, ADVOCATE, FOR SRI SUBHASH KOWDICHAR) AND:
1. B. ASHOKA S/O. BASAVARAJAPPA, RESIDENT OF MALATHESWARA NILAYA, ALLATABAIL, BELTHANGADI TALUK, SOUTH CANARA DISTRICT – 574 231.
2. NATIONAL INSURANCE CO. LTD.
1ST FLOOR, SRIKSHETHRA DHARMASTHALA BUILDING, MAIN ROAD, PUTTUR, DAKSHINA KANNADA DISTRICT – 574 229.
... RESPONDENTS (BY SRI GIRIRAJ J., ADVOCATE, FOR R1;
SRI M.S. SRIRAM, ADVOCATE, FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26/12/2011 PASSED IN M.V.C. NO.341 OF 2011 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III, ADDITIONAL M.A.C.T-IV, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, NATARAJAN J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, we have heard learned counsel for the respective parties finally on merits.
2. Even though learned counsel for the appellant submits that the appellant has sought return of the papers from him, since no Memo for retirement has been filed, we have permitted Sri Kiran S., learned counsel to make submissions in the matter for the appellant and we have heard Sri M.S. Sriram, learned counsel for respondent No.2- insurance company.
3. This appeal is preferred by the claimant assailing the judgment and award dated 26/12/2011 passed in M.V.C. No.341 of 2011 by the Fast Track Court-III and Additional Motor Accident Claims Tribunal-IV, Shivamogga, (hereinafter referred to as ‘Tribunal’, for the sake of convenience).
4. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
5. The injured-claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.21,95,000/- inter-alia, contending that on 26/1/2011 at about 12:30 p.m., when the claimant was proceeding on his motorcycle as a rider along with Vinay as pillion rider on the Hero Honda Splendor Plus motorcycle bearing Registration No.KA-14/EA-2661 towards Sagara to go to a temple near Kumadwathi river bridge, Choradi, on National Highway-206, Shivamogga Taluk, respondent No.1, being driver-cum-owner of the Maruthi omni van bearing Registration No.KA-21/M-3562 was driven in a rash and negligent manner and at high speed and dashed against the motorcycle, due to which, the claimant sustained injuries. He was shifted to Mc.Gann Hospital, Shivamogga. Thereafter, he was shifted to Nanjappa Hospital, Shivamogga and was an in-patient and he underwent surgery and implants were inserted. He took further treatment at Sanidhya Dental Specialty and Maxilo Facial Trauma Center, Shivamogga. According to the claimant, he spent more than Rs.90,000/- towards medical expenses. He also requires future medical expenses. He further contended that he was working as a Mechanical Engineer and earning Rs.15,000/- per month. Due to the accident, he suffered disability and lost his earning capacity. Hence, he prayed for awarding compensation.
6. In pursuance of the notice issued by the Tribunal, respondent No.1-owner-cum-driver of the offending vehicle appeared through his counsel and filed statement of objections denying the claim averments and prayed for dismissal of the claim petition.
7. Respondent No.2-insurer appeared and filed statement of objections by admitting the issuance of insurance policy in respect of Maruthi omni van bearing Registration No. KA-21/M-3562 and that the insurance policy was in force. It is further contended that the accident occurred due to collision between two vehicles. Therefore, insurer of the motorcycle bearing Registration No.KA-14/EA- 2661 is also a necessary party and not making it as a party, the petition is bad for non-joinder of necessary party. The insurer further contended that the driver of the Maruthi omni van had no valid Driving License to drive the vehicle at the time of accident. The said accident occurred due to the negligence on the part of the rider of the motorcycle by himself. The rider of the motorcycle also contributed to the negligence and without prejudice to the above contention, it was contended that liability, if any, was to be fixed on respondent No.2, the same may be subject to the terms and conditions of the insurance policy. Hence, it prayed for dismissing the claim petition.
8. Based upon the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioner/s proved that on 26.1.2011 at 12.30 P.M., when the petitioner/s was proceeding by riding his Hero Honda Splendor motorcycle bearing Reg. No.KA-14/EA-2661 towards Sagar to go to temple and when rider/pillion rider was so proceeding near Kumudvathi river bridge, Choradi on NH-206, Shivamogga Taluk, the 1st respondent being the driver of Maruthi Omni Van bearing Reg. No.KA-21/M-3562 driven his vehicle in a rash and negligent manner and in a high speed and dashed against the petitioner’s motorcycle and caused the accident?
ii. Whether the petitioner/s further proved that due to the said accident he sustained injuries as stated in the claim petition?
iii. Whether the petitioner/s is entitled for compensation? If so how much and from whom?
iv. What Order or Award?
9. To substantiate the contention, the claimant examined himself as P.W.1 and got marked fourteen documents as Exs.P.1 to P.14(a). He also examined P.W.2, the doctor who treated him and got marked Exs.P.15 to P.18. The Accountant of the Company, in which the claimant is working, was examined as P.W.4 and got marked Exs.P.21 to P.24(a). Respondent No.1 did not examine any witness.
However, got marked Ex.R.1-notarised copy of Driving License, Ex.R.2-notarised copy of R.C. extract and insurance policy is marked as Ex.R.3.
10. After considering the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative and issue No.3 partly in the affirmative and awarded compensation of Rs.1,58,980/-.
11. Assailing the judgment and award passed by the Tribunal, the claimant has preferred this appeal for enhancing the compensation.
12. Learned counsel for the appellant contended that the injured-claimant is working as a Mechanical Engineer and was earning salary of Rs.15,000/- per month on the date of the accident. He also examined the Accountant of the Company and marked Exs.P.21 to P.24(a) to prove his income. Though the salary particulars of the claimant was shown as Rs.7,511/-, the Tribunal considered the notional income of the claimant at Rs.3,500/- per month, which is meager and contrary to the documentary as well as oral evidence. Further, he contended that award of compensation on other heads is also meager. Therefore, he prayed for enhancing the same.
13. Per contra, learned counsel for the respondent- insurance company has supported the judgment and award passed by the Tribunal and contended that in absence of any authenticated document, the Tribunal has rightly considered the income of the claimant as Rs.3,500/- per month and has awarded compensation on various heads including medical bills. Therefore, he contended that the judgment and award passed by the Tribunal calls for no interference from this Court and prays for dismissal of the appeal.
14. Upon hearing learned counsel for the respective parties, the points that would arise for our consideration are:
i. Whether the appellant is entitled for enhancement of compensation?
ii. What order?
15. The appellant has established the factum of accident which occurred on 26/1/2011 at about 12:30 p.m., when he was riding his motorcycle bearing Registration No.KA-14/EA-2661 towards Sagara, along with a pillion rider, by name, Vinay. When they reached near Kumadwathi river bridge, on National Highway-206, Shivamogga Taluk, respondent No.1, being the driver-cum-owner of Maruthi omni van bearing Registration No.KA-21/M-3562 drove the vehicle in a rash and negligent manner and at high speed and dashed against the motorcycle of the claimant, due to which, he sustained injuries and had taken treatment in the Hospital. The claimant examined himself as P.W.1 and got marked documents as Exs.P.1 to P.5 in respect of the accident and injuries sustained. Based upon the pleadings and the evidence on record, the Tribunal held that the accident had occurred due to rash and negligent driving of the driver of the Maruthi omni van of respondent No.1. The said finding is not challenged by respondent No.1. Therefore, the only controversy is with regard to whether the quantum of compensation awarded by the Tribunal is insufficient as contended by the appellant.
16. In this regard, the claimant has contended that he is working as a Mechanical Engineer and earning salary of Rs.7,511.45 per month and in support of his case, he produced Ex.P.13-salary certificate and also examined P.W.4, the Accountant of Bhoomika Alloys Castings Private Limited. The appellant being a B.E. graduate produced Exs.P.23 and P.23(a)-Attendance Register. He also produced Ex.P.24- salary particulars for the month of December-2010. These documents are marked through P.W.4. On perusal of these documents, it reveals that the claimant was earning Rs.7,997.45/- per month. These documents were not controverted by the respondents in the cross-examination, but the Tribunal without assigning any proper reason, calculated the notional income of the claimant at only Rs.3,500/- per month which is meager and is contrary to both oral and documentary evidence on record. Therefore, as per the evidence of P.W.4, Ex.P.24-salary certificate of December-2010 was marked and at Sl. No.2 in the entry which shows that the claimant was earning gross salary of Rs.7,997.45 ps. per month and after deduction of P.F., G.I.S., etc. he was getting net salary of Rs.7,511.45 ps. per month. It is well settled by the Hon’ble Apex Court that except the income-tax and professional tax, no other deduction is to be allowed to be deducted from the gross salary. The P.F. and G.I.S. cannot be deducted from the gross salary. Therefore, we propose to consider the net income of the claimant at Rs.7,511.45/- per month.
17. The appellant-claimant has further contended that due to the injuries sustained by him, he is suffering from permanent disability and has lost the earning capacity. In support of his contention, he got cross-examined P.W.2- Doctor who treated him has assessed the disability at 35%. As per the evidence of the Doctor as well as evidence of P.W.1, the claimant sustained fracture of mandible and had undergone surgery on 26/1/2011. The movements of the mouth have been restricted and the disability is assessed at 35% to the mouth. The Tribunal considered the disability towards the whole body at 8%, the same is disputed by the claimant. When P.W.2-Dr. Chethan B.I. has assessed 35% disability towards mouth, but he has not stated what is disability to the whole body. In absence of any such evidence on record, we propose to consider 10% disability towards whole body instead of 8% assessed by the Tribunal. The income of the claimant is considered at Rs.7,511/. 10% of Rs.7,511/- is Rs.751.10. Rs.751.10 x 12 x 18 (being the appropriate multiplier), comes to Rs.1,62,237.60. This would be the compensation towards ‘loss of future earning capacity’.
18. The Tribunal has awarded Rs.30,000/- towards pain and agony, which is not sufficient as the claimant has undergone surgery and by including various injuries sustained by him in the accident. Therefore, we propose to award Rs.40,000/- towards ‘pain and suffering’. As per the medical records, the claimant spent Rs.27,745/- as per Exs.P.8 to P.12 towards medical expenses. Therefore, we propose to award Rs.28,000/- under this head. Further, we propose to award Rs.20,000/- towards future medical expenditure. From the evidence on record, the claimant has established that during the period of treatment, he was unable to attend to his duty and was under continuous treatment for almost three months. The Tribunal also considered the laid-up period for three months. Therefore, we propose to award Rs.22,533/-(Rs.7,511/- x 3 months) towards ‘loss of salary during laid-up period’. It is established from the evidence of the claimant as well as the evidence of P.W.2 that due to mandible fracture, the claimant is unable to chew and there is disability of 35% to the mouth. There was loss of around 1 cm clench of bone at the fracture site. Condylar fractures were treated with inter maxillary fixation (IMF) for thirty days. He must have been under liquid diet; there was loss of bone in parasymphysis of mandible. Due to the said injuries, the claimant suffered loss of amenities. Therefore, we propose to award Rs.30,000/- towards ‘loss of amenities’. The Tribunal has awarded Rs.3,000/- towards incidental charges. We are of the view that the same is meager. Therefore, we propose to award Rs.10,000/- towards ‘incidental charges including food and nourishment’.
19. Consequently, the reassessed compensation is as under:
Heads Compensation awarded by this Court (in Rs.) Towards pain and suffering 40,000.00
Towards loss of amenities 30,000.00 Towards loss of future earning capacity (10% of Rs.7511/- x 12 x 18 = Rs.1,62,237.60. It is rounded off to Rs.1,62,237/-) Towards loss of income during laid-up period (Rs.7511/- x 3 months) 1,62,237.00 22,533.00 Total 3,12,770.00 20. The aforesaid compensation shall also carry interest at the rate of 6% per annum from the date of the claim petition till realisation.
21. Respondent No.2-insurer to deposit the enhanced compensation within a period of four weeks from the date of receipt of a certified copy of this judgment. On deposit of the amount, the Tribunal shall release the same to the appellant, after due identification.
22. The appeal is allowed-in-part in the aforesaid terms.
23. Parties to bear their respective costs.
Office to return the lower Court record to the Tribunal, forthwith.
SD/- JUDGE SD/- JUDGE kvk