IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3442 OF 2014 (MV) BETWEEN:
BALASUBRAMANYA, S/O K.KANNAN, AGED 33 YEARS, INDIRANAGARA, AREHALLY VILLAGE, BELUR TALUK, HASSAN DISTRICT-573201.
(BY SRI. D.P. ASHOK, ADVOCATE) AND:
1. VISHWANATHA S/O DEJAPPAHETTY, MAJOR, LINGAPURA SANTHEMALA, BELUR TALUK, HASSAN DISTRICT.
... APPELLANT (KA.46 E 4649 BAJAJ DISCOVER MOTOR CYCLE OWNER).
2. THE MANAGER THE NATIONAL INSURANE CO. LTD., SRI. MANJUNATHASWARA COMPLEX, HASSAN – 573201.
POLICY NO.602402;09;6200007954 VALIDITY PERIOD 21-12-2009 TO 21-12-2010 ... RESPONDENTS (BY SMT. GEETHA RAJ, ADVOCATE FOR R2 R1 - SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.11.2011 PASSED IN MVC NO.151/2010 ON THE FILE OF SENIOR CIVIL JUDGE, MACT, BELUR, 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 The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 17/11/2011 in M.V.C.No.151/2010 on the file of the Senior Civil Judge & MACT, Belur.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a motor vehicle accident. It is stated that on 09-6-2010, when the claimant was proceeding as pillion rider in motor bike bearing Reg.No.K.A.4696 belonged to the first respondent, the rider of the motor bike drove the same in a rash and negligent manner and dashed to the pedestrian Shivappa. As a result, the claimant fell down and sustained injuries. Immediately, he was shifted to Craford Hospital, Sakleshpur and thereafter to Sanjeevini Co-operative Hospital, Hassan. It is stated that the claimant was working as mason and was earning Rs.10,000/- per month. He was aged 28 years as on the date of accident.
3. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their written statement denying the claim petition averments. Respondent No.1-owner denied the involvement of the motor bike in the accident and also stated that the vehicle was covered with insurance. Respondent No.2-insurer also denied the involvement of the vehicle in the accident and specifically contended that there is a delay of five days in lodging the complaint and prayed for dismissal of the claim petition.
4. The claimant examined himself as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-16. Respondent No.2-Insurer produced Ex.R-1-Policy.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.2,13,200/- with interest at the rate of 8% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and sufferings 50,000 2. Medical expenses 36,200 3. Food, Diet, Nourishment, Fruits, Attendance charges, Conveyance and Transport expenses, etc.
4. Permanent Disability, Loss of future income, loss of future earning capacity, loss of amenities, frustration, joyless life, sorrow, discomfort, disappointment, unhappiness etc.
10,000 12,000 5. Future medical expenses 5,000 6. Permanent Disability, Loss of Future income, loss of future earning capacity, loss of amenities, frustration, joyless life, sorrow, discomfort, disappointment, unhappiness etc.
1,00,000 Total 2,13,200 The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for respondent No.2-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the claimant suffered fracture of right shaft femur along with other abrasions to the body. He further submits that the quantum of compensation awarded by the Tribunal is on the lower side when compared to the injuries suffered and treatment taken by the claimant as inpatient for 7 days. It is his further submission that even though the Tribunal assessed the income of the claimant at Rs.4,000/- per month, failed to award compensation on the head of ‘Loss of future income due to disability’ and the income assessed at Rs.4,000/- per month is on the lower side, the same is to be assessed on the higher side. It is further submitted that the Doctor-PW-2 has stated that the claimant suffers from 35% disability to a particular limb and 12% to the whole body. But the Tribunal failed to award any compensation to the said disability. It is further submitted that the claimant was a mason and the fracture of right femur would come in the way of his day to day activities. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for respondent No.2– Insurer would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. He further submitted that the compensation awarded on the head of ‘Amenities’ as well as towards ‘Pain and sufferings’ are on the higher side and prays for reduction of compensation on those heads. Thus, prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in not assessing the whole body disability and not awarding any compensation on the head of ‘Loss of income due to disability’?
2) Whether the claimant would be entitled for the enhanced compensation?
Answer to the above points would be in negative and affirmative respectively for the following reasons.
10. The accident occurred on 09-6-2010 involving motor bike bearing Reg.No.K.A.4696 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. The claimant states that he was working as mason and was earning Rs.10,000/- per month but in support of his contention, he has not placed on record any document/material to indicate his exact income. In the absence of the material/document to indicate the exact income of the claimant, the Tribunal assessed the income of the claimant notionally at Rs.4,000/- per month, the same is on the lower side. In the year 2010, even a coolie earned Rs.200/- per day. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2010 at Rs.5,500/-. In the instant case also in the absence of any document/material to indicate the exact income of the claimant, it would be appropriate to assess Rs.5,500/- per month as notional income of the claimant for determination of the compensation.
11. The claimant has suffered fracture of right femur and other injuries. Ex.P6-wound certificate and Ex.P10- Inpatient case file would indicate the injuries suffered and treatment taken by the claimant. PW-2-Doctor in his evidence states that the claimant suffers from 35% disability to a particular limb and 12% disability to the whole body. Further it is stated that the claimant was working as mason and the fracture of right femur would come in the way of his work. Mason work is a manual work and fracture of femur poses some difficulty in his work. Therefore, it would be appropriate to award compensation on the head of ‘Loss of income due to disability’ taking whole body disability at 12%. As the claimant would be entitled for compensation on the head of ‘Loss of income due to disability’, he would not be entitled for compensation of Rs.40,000/- awarded by the Tribunal on the head of ‘Permanent Disability’ and Rs.20,000/- towards ‘frustration, discomfort, disappointment, joyless life, unhappiness, sorrow etc’. Thus, the claimant-appellant would be entitled for modified enhanced compensation as follows:
Amount in (Rs.) 1. Pain and sufferings 50,000 2. Medical expenses 36,200 3. Loss of income due to the disability (5500x17x12x12/100=134640) 1,34,640
12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.2,92,340/- as against Rs.2,13,200/- with interest at the rate of 8% per annum from the date of petition till its realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
By order dated 21-6-2016 the delay of 793 days in filing the appeal was condoned subject to the condition that the appellant would not be entitled for the interest for the delayed period. Accordingly, the appellant would not be entitled for the interest for the delay period of 793 days.
Sd/- JUDGE SMJ