IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S. G. PANDIT M.F.A. NO.1299/2014 (MV) BETWEEN:
YOGESH S/O JAVARAIAH AGED ABOUT 37 YEARS R/AT MAIYANAGAR ARAKALAGUDU TALUK HASSAN DISTRICT PIN CODE-573102.
PRESENT ADDRESS:- RAJAIAH S/O RAMAIAH HILAL MANDIR ROAD KUSHALNAGAR EXTENSION SAKALESHPUR TOWN HASSAN DISTRICT PIN CODE-573134. ... APPELLANT (BY SRI. ABIJITH M M, ADV.) AND:
1. JANARDHAN S/O JAVAREGOWDA MAJOR R/AT V HOSALLI (VADAVANAHOSAHALLI) KONANUR POST & HOBLI ARAKALAGUDU TALUK HASSAN DISTRICT PIN CODE:573130.
2. ROYAL SUNDARAM ALLIANCE GENERAL INSURANCE CO. LTD., LOOK OMKAR SHALIMAR COMPLEX KANKANADY MANGALORE-575002. ... RESPONDENTS (BY SRI.CHETHAN S AND SRI CHANDRA, ADVs. FOR R1 SRI. O MAHESH, ADV. FOR R2) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:30.10.2013 PASSED IN MVC NO.1345/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND J.M.F.C., AND MACT., SAKALESHPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 30.10.2013 passed in MVC No.1345/2012 on the file of Senior Civil Judge and MACT, Sakaleshpur.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries suffered in the Road Traffic Accident that occurred on 19.04.2012. It is stated that when the claimant was traveling as pillion rider along with his friend in Motor Bike bearing No.KA- 09.EG–7001, a Tata Ace bearing Reg.No.KA-13.A-8520 came in a rash, negligent manner and dashed against the motor bike, due to the impact the claimant fell down and sustained grievous injuries. It is stated that the claimant was earning Rs.8,000/- per month by doing mason work.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared and filed its objection denying the petition averments. It is also denied that the accident occurred due to rash and negligent driving of the driver of the Tata Ace goods vehicle. The claimant examined himself as PW.1 and examined the Doctor as PW.2 and got marked the documents Exs.P1 to P.43. Taking the monthly income of the appellant at Rs.3,750/- and taking 15% permanent disability to the whole body, the Tribunal awarded total compensation of Rs.1,63,635/-. 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 2nd respondent – Insurance Company. Perused the appeal papers and the lower court records.
5. The learned counsel for the appellant/claimant submits that the compensation awarded by the Tribunal is on the lower side. He submits that the monthly income of the claimant ought to have been taken at Rs.7,000/- per month instead of Rs.3,750/-, since the accident is of the year 2012. It is further contended that the Tribunal has failed to award compensation on the heads Loss of Income during laid up period and Conveyance and nourishment. It is his submission that the claimant was inpatient for 43 days and he has undergone surgery. It is also his submission that the Tribunal has not awarded any compensation for Future medical expenses which he would be entitled to, since the Doctor has deposed that the claimant has to undergo surgery for removal of implants.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the compensation awarded by the Tribunal is just and proper and needs no interference. He further submits that the Doctor PW.2 stated that the claimant has suffered 34% disability to right lower limb, the Tribunal has rightly taken 15% disability for determination of compensation, thus he prays for dismissal of the appeal.
7. The accident that occurred on 19.04.2012 involving the Motor Bike bearing No.KA-09-EG-7001 and Tata Ace. bearing Reg.No.KA-13-A-8520 and the accidental injuries suffered by the claimant is not in dispute. The appellant/claimant is in appeal seeking enhancement of compensation. The Tribunal has taken the notional income of the claimant at Rs.3,750/- per month, which is on the lower side. The accident is of the year 2012, this Court and the Lok Adalath while determining the compensation for the accidents of the year 2012 would normally take the notional income at Rs.7,000/- per month. In that light, it is deemed proper to take the notional income of the claimant at Rs.7,000/- per month. Further the learned counsel submitted that the Doctor has stated that the claimant has suffered 34% disability, whereas the Tribunal has taken only 15%. The Doctor in his evidence has stated that the claimant suffered 34% disability to upper limb and has not stated with regard to whole body disability. Thus looking into the nature of injuries suffered and based on the Doctor’s evidence, the Tribunal has rightly taken total body disability at 15%, which needs no interference. The Tribunal has not awarded compensation on the heads loss of amenities, loss of income during laid up period, future medical expenses and on the head of conveyance and nourishment, which the claimant would be entitled to, in view of the fact that the claimant was inpatient for 43 days and has undergone surgery. The claimant would be out of employment for a minimum period of three months. Thus the claimant would be entitled to modified compensation as follows :-
a. Loss of future income would be Rs.7,000/- x 12 x 15 x 15% = Rs.1,89,000/-
b. Loss of amenities - 20,000/-
Total - Rs.2, 85,000/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation of Rs.2,85,000/- as against Rs.1,63,635/- 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