IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8640 OF 2014 (MV) C/W M.F.A.No.1180 OF 2014 (MV) IN M.F.A.No.8640 OF 2014: BETWEEN:
YUVARAJA REDDY @ YUVARAJ S/O. KESHAVA REDDY AGED ABOUT 33 YEARS R/AT No.845, MUNESHWARANAGAR 1ST CROSS, NAGASANDRA POST BAGALAGUNTE BENGALURU – 560 073 PRESENT ADDRESS No.900, BAGALAGUNTE HAVANOOR LAYOUT BENGALURU – 560 073 ... APPELLANT (BY SRI. KALYAN R, ADVOCATE) AND:
THE MANAGING DIRECTOR ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION MUSHTRABAD HYDERABAD ANDHRA PRADESH – 623 513 ... RESPONDENT (BY SRI. D. VIJAYA KUMAR, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 05.11.2013 PASSED IN MVC No.755/2013 ON THE FILE OF THE III ADDITIONAL SMALL CAUSES JUDGE AND XXIX ACMM, MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. No. 1180 OF 2014: BETWEEN:
ANDHRA PRADESH STATE ROAD TRANSPORT CORPORATION CENTRAL OFFICE MUSHIRABAD HYDERABAD REPRESENTED BY ITS THE MANAGING DIRECTOR ... APPELLANT (BY SRI. D. VIJAYA KUMAR, ADVOCATE) AND:
SRI YUVARAJA REDDY @ YUVARAJ S/O. KESHAVA REDDY AGED ABOUT 32 YEARS No.845, MUNESHWARANAGAR 1ST CROSS, NAGASANDRA POST BAGALUGUNTE BENGALURU – 560 073 PERMANENT ADDRESS:
No.900, BAGALAGUNTE HAVANOOR LAYOUT BENGALURU ... RESPONDENT (BY SRI. KALYAN R, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 05.11.2013 PASSED IN MVC No.755/2013 ON THE FILE OF THE III ADDITIONAL SMALL CAUSES JUDGE AND XXIX ACMM, MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, BENGALURU, AWARDING COMPENSATION OF Rs.7,40,382/- WITH INTEREST @ 8% PER ANNUM FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT MFA No.8640/2014 is filed by the claimant seeking enhancement of compensation and M.F.A. No.1180/2014 is filed by the insurer questioning the quantum of compensation awarded under judgment and award dated 05.11.2013 passed in MVC No.755/2013 on the file of III Additional Small Causes Judge and XXIX ACMM and Motor Accident Claims Tribunal, Bengaluru. Since both the appeals are filed challenging the judgment and award in MVC No.755/2013, they are heard together and disposed of by this common judgment.
2. The claimant – injured filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered by him in a road traffic accident, which occurred on 15.09.2012 when the claimant was traveling as a passenger in Andhra Pradesh State Road Transport Corporation (APSRTC) bus bearing registration No.AP- 28-Z-5033 near Kantharaja Circle, NH-4 Chittur- Mulabagal road, Mulabagal Taluk, Kolar District, the driver of the bus drove the same in a rash and negligent manner and dashed against the parked lorry bearing registration No.TN-07-ZU-5099 due to which the claimant sustained grievous injuries.
3. On issuance of summons, the respondent – APSRTC., appeared before the Tribunal and filed its objections denying the claim averments. It further contended that the accident took place due to the negligent driving of the lorry, which overtook the bus on its left side and suddenly stopped it without giving any signal.
4. The claimant examined himself as PW.2 and also examined PW.3 – Doctor in support of his case and marked the documents as per Exs.P1 to P29. The Tribunal on assessing the material on record, awarded a total compensation of Rs.7,40,382/- with interest at 8% per annum from the date of the petition till the date of realization, by holding that the claimant suffered from functional disability of 40% and taking into consideration the income of the claimant at Rs.6,000/- per month. The claimant not being satisfied with the quantum of compensation is before this Court in MFA No.8640/2014, whereas the insurer is before this Court in MFA No.1180/2014 aggrieved by the quantum of compensation awarded by the Tribunal.
5. Heard the learned counsel for the claimant as well as the insurer.
6. Learned counsel for the claimant would submit that the Tribunal committed an error in taking Rs.6,000/- per month as the income of the injured to determine compensation on the head ‘loss of future income’. Further, he submits that the claimant – injured was earning Rs.15,000/- per month as Supervisor under PW.5. It is his submission that the claimant had examined his employer, who had deposed before the Tribunal that he was paying Rs.15,000/- as salary to the claimant, which the Tribunal has rejected. He further submits that the claimant was working as Supervisor and due to the accidental injuries, he suffered fracture of the left femur and amputation of left foot. Thus, he is not in a position to do the same work of Supervisor as he was doing earlier. Therefore, the Tribunal has rightly taken the functional disability of the claimant at 40%. The Doctor – PW.3 has opined that the claimant has suffered 60% of disability of left lower limb and 20% to the whole body. The Tribunal looking into the work of the claimant, has taken functional disability suffered by him at 40%, which needs no interference.
7. Per contra, learned counsel for the Insurer would submit that the Tribunal committed an error in taking the functional disability sustained by the claimant at 40% when the Doctor has deposed that the claimant has suffered disability of 20% to the whole body. It is further submitted that there is no evidence on record to show that the claimant is not working as Supervisor subsequent to accident and there is reduction of his salary due to the accidental injury suffered by him. Thus, he submits that the disability of the claimant could be taken at 20% to the whole body to determine the compensation on the head ‘loss of future income’.
8. Having heard the learned counsel for the parties and on perusal of the records, the following questions would arise for consideration:
1. Whether the Tribunal is justified in taking functional disability of the claimant at 40% to determine the loss of future income?
2. Whether the claimant is entitled for enhancement of compensation ?
The answer to the above questions would be against the claimant - appellant for the following reasons:
9. The injuries suffered by the claimant in a road traffic accident, which occurred on 15.09.2012 when he was traveling in APSRTC bus bearing No.AP-28-Z- 5033 are not in dispute in this appeal. From the wound certificate – Ex.P10 issued by Medical officer, R.L. Jalappa Hospital, it is seen that the claimant has suffered the following injuries:
“i. CLW 1 x 1 on over left temporal region.
ii. Multiple CLW present over left side of neck.
iii. Small CLW about 1 x 1 over left shoulder.
iv. Deep CLW 7 x 4 cm over proximal 1/3rd on right expose muscle.”
10. The claimant has examined PW.3 – Doctor in support of his case. The Doctor in his evidence, has stated that the claimant has suffered the following injuries:
“1. Closed transverse fracture of left Femur;
2. Crush injury left foot;
3. laceration of right forearm;
4. soft tissue injury face.”
One of the injuries is stated as crush injury of left foot. He further states that the claimant walks with limp. In the cross-examination, he has stated that he is not the treated Doctor in respect of the claimant. The Doctor states that the claimant has undergone 50% mid foot amputation, which would be taken as disability of 40%. Admittedly, the claimant was working as Supervisor under PW.5, K. Madava Reddy, who is Class I PWD contractor (Class II Civil Contractor). PW.5 in his evidence has stated that the claimant, Yuvaraja Reddy, was working as Supervisor under him and he was paying monthly salary of Rs.15,000/- to the claimant. The claimant examined himself as PW.2. In his evidence, he has stated that he was receiving Rs.15,000/- as salary from PW.5, Mr.
K. Madava Reddy, Class I PWD Contractor. He further states that due to the accidental injuries, he is unable to do the said job and he has lost his income. The Insurance Company, which has cross-examined PW.2 – claimant has not cross-examined him on the aspect of reduction of his income due to the injuries sustained by him and amputation of his left foot. From the evidence of the Doctor – PW.3 and wound certificate, it is clear that the claimant has suffered amputation of left foot. He is working as Supervisor. The amputation of left foot definitely would come in the way of his work as Supervisor. As a supervisor, he has to run around and carry on his work. Due to amputation of left foot, definitely he would not be in a position to move as he was moving prior to the accident. Thus, the claimant has suffered functional disability. The assessment of functional disability made by the Tribunal is on the higher side. When the whole body disability is at 20% as stated by the Doctor, the Tribunal could not have taken functional disability of the claimant at 40% i.e., double the whole body disability. At the best, 50% of the 20% whole body disability could be added i.e., 10% to the whole body disability to arrive at percentage of functional disability. Thus, functional disability taken by the Tribunal at 40% is modified and it is held that the claimant has sustained functional disability of 30%.
11. The Tribunal has taken the income of the claimant at Rs.6,000/- per month, which is on the lower side. The accident is of the year 2012. The claimant states that he was receiving salary of Rs.15,000/- per month from PW.5 - Contractor. The claimant was working as Supervisor. PW.5 states that he was paying Rs.15,000/- per month as salary to the claimant, but he has not produced any piece of document to indicate the said payment to the claimant. He has stated in his evidence that he was not maintaining any register with regard to attendance and payment of salary to the claimant. In the absence of any material to indicate the exact income of the claimant, notional income is to be determined. This Court and Lok Adalats while settling the accident claims of the year 2012, would normally take the notional income at Rs.7,000/- per month. Hence, I deem it appropriate to take Rs.7,000/- as the notional income of the claimant to determine the future loss of income. Thus, the claimant would be entitled for the modified compensation of Rs.4,03,200/- ( Rs.7,000 x 12 x 16 x 30% ) on the head ‘loss of future income’. Further, the claimant would be entitled for another sum of Rs.5,000/- on the head ‘loss of income during laid up period, rest, nourishment and attendant charges’.
12. The compensation awarded by the Tribunal on the other heads would remain as it is. Thus, the claimant would be entitled for modified compensation as under:
M.F.A. No.8640/2014 filed by the claimant is dismissed. M.F.A. No.1180/2014 filed by the Insurer is allowed in part. The impugned judgment and award dated 05.11.2013 passed in MVC No.755/2013 on the file of III Additional Small Causes Judge and XXIX ACMM and Motor Accident Claims Tribunal, Bengaluru, is modified and the claimant is entitled to total compensation of Rs.6,87,782/- as against Rs.7,40,382/- awarded by the Tribunal, with interest at the rate of 8% per annum from the date of claim petition till the date of realization.
The amount in deposit be transmitted to the concerned Tribunal for disbursal to the claimant.
Sd/- JUDGE sma