IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.6308 OF 2016 (MV-I) BETWEEN:
Waseem S/o Mahamood, Aged about 24 years, R/at No.60, 60th Cross, Mominapura, J.J.R.Nagar, Bangalore-26. ...Appellant (By Sri. R Lakshmana, Advocate) AND:
1. Akmal Pasha S/o Ameerjan, R/at.No.484, 2nd Floor, 17th Cross, 18th Main, Old Guddadahalli, Bangalore-26.
2. M/S ICICI LOMBARD GENERAL INSURANCE CO.LTD By its Manager, No.89, SVR Complex, Hosur Main Road, Madivala, Bangalore-560068.
Now Shifted to ICICI Lombard GIC No.121, The Estate Building, 9th Floor, Dickenson Road, Bangalore-1 ...Respondents (By Sri. A N Krishnaswamy, Advocate for R2 R1 – served unrepresented) This MFA is filed under Section 173(1) Of MV Act, against the judgment and award dated: 11.12.2015 passed in MVC No.5089/2014 on the file of the Member, MACT, 16th Additional Judge, Court of Small Causes, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation and etc.
This MFA coming on for Admission, this day, the Court delivered the following:
JUDGMENT The appellant is in appeal under Section 173(1) of the Motor Vehicles Act, 1988, not being satisfied with the quantum of compensation awarded under the judgment and award dated 11/12/2015 in M.V.C.No.5089/2014 on the file of the Member, MACT, XVI Additional Judge, Court of Small Causes, Bangalore.
2. The claimant filed petition under Section 166 of Motor Vehicles Act, claiming compensation for the injuries sustained by him in a road traffic accident. It is stated that on 20/11/2014 at about 8.30 A.M., when the claimant was proceeding on Suzuki Access motorcycle bearing No.KA-05-JC-2697 as a pillion rider, the rider of the said motorcycle rode the motorcycle in a rash and negligent manner and lost control and hit against the garbage van, due to which the petitioner-appellant fell down and sustained fracture on his left femur. It is stated that the claimant was aged 22 years as on the date of accident and he was working as salesman at Royal Enterprises and was drawing a salary of Rs.12,000/- per month. Due to accidental injuries, the petitioner is unable to do any work.
3. Respondent No.2-Insurance Company appeared before the Tribunal and filed its statement of objections denying the averments of the petition. It is contended that the rider of the motorcycle was not holding a valid and effective driving licence as on the date of accident, that the owner of the motorcycle has violated the terms and conditions of the policy.
4. The claimant-petitioner examined himself as PW-1 and also examined the Doctor as PW-2 and got marked Ex.P1-15. No evidence was adduced on behalf of respondent No.2. The Tribunal on consideration of the material on record both oral and documentary evidence, held that the petitioner-claimant has suffered whole body disability of 11% and taking Rs.7,000/- per month as income of the claimant, awarded total compensation of Rs.2,89,320/-. The claimant-petitioner not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
5. Heard the learned counsel for the appellant and learned counsel for the respondent-Insurance Company. Perused the records.
6. Learned counsel for the appellant-claimant submits that the Tribunal has committed an error in taking Rs.7,000/- per month as income of the injured, whereas he was earning Rs.12,000/- per month as salesman at Royal Enterprises. He further submits that the claimant has produced salary certificate which is marked as Ex.P7. It is further submitted that the accident is of the year 2014 and minimum Rs.8,500/- per month ought to have been taken as income for determination of compensation.
7. Per contra, learned counsel for the respondent- Insurance Company submits that the compensation awarded by the Tribunal is just and proper and needs no interference by this Court with the judgment and award.
8. The accident and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant is before this Court seeking enhancement of compensation as the Tribunal has taken income of the appellant on the lower side for determination of compensation. The accident is of the year 2014. The claimant has produced Ex.P7-salary certificate to state that he was in receipt of Rs.12,000/- per month, working as salesman in Royal Enterprises. The Tribunal on examination of Ex.P7 notes that the petitioner has not examined the author of Ex.P7 and observed that no other document is produced to show that the petitioner was a salesman in Royal Enterprises. Thus, rejecting Ex.P7, the Tribunal notionally fixed income of the injured at Rs.7,000/- per month. But the income taken at Rs.7,000/-
per month is on the lower side. This Court and the Lok Adalaths while determining the compensation in Motor Vehicles Accident cases would take notional income for the accidents of the year 2014 at Rs.8,500/- per month. In the case on hand, as the claimant has not proved Ex.P7- salary certificate, I deem it is appropriate to take notional income of the injured at Rs.8,500/- per month. Therefore, the claimant would be entitled for modified compensation as follows:
8500x12x18x11%=2,01,960/- as against 7000x12x18x11%=1,66,320/- awarded by the Tribunal.
The compensation awarded by the Tribunal on the other heads is not disturbed. Thus, the claimant would be entitled for enhanced compensation of Rs.35,640/- with interest as awarded by the Tribunal.
Accordingly, appeal is allowed in part.
Sd/- JUDGE SMJ