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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.11920 OF 2011 (MV-I)
BETWEEN:
ELUMALE,
AGED ABOUT 27 YEARS,
LORRY CLEANER,
S/O ARMUGAM,
R/O SULEBYLU,
SHIVAMOGGA TQ & DIST - 577201. ...APPELLANT
(BY SRI RAVINDRANATH, ADV.)
AND:
1. MADHU KUMAR,
S/O GOVINDA RAJU,
AGE:MAJOR,DRIVER OF TIPPER LORRY
BEARING NO.KA-14/A-2789,
RDL NO.2006-07
VALID UPTO 30-3-2008 TO 23-3-2011
R/O INDIRA NAGAR, SULEBYLU,
SHIVAMOGGA - 577201.
2. MAKMOOR,
S/O NAWABJAN,
AGED ABOUT 42 YEARS,
OWNER OF THE TIPPER LORRY
BEARING NO. KA-14/A-2789,
R/O SULEBYLU,7TH CROSS,
URGADOOR (P)
SHIMOGAA - 577201.
3. THE NEW ASSURANCE CO.LTD.,
BRANCH OFFICE, III CROSS, NEHRU ROAD,
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SHIVAMOGGA - 577201,
POLICY NO.670601/31/L08/01/00001950
VALID FROM 19-7-08 TO 18-7-09577201.
...RESPONDENTS
(BY SMT.GEETHARAJ, ADV. FOR R3,
R1 AND R2 ARE SERVED)
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.03.2011 PASSED IN MVC
NO.932/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III, ADDITIONAL MACT-IV, SHIVAMOGGA,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed by the claimant seeking enhancement of compensation challenging the judgment and award dated 17.03.2011 in MVC No.932/2009 passed by the Fast Track-III and Additional MACT-IV, Shivamogga.
2. For the sake of convenience, parties are referred to as per their rank before the Tribunal.
3. Heard the learned advocate for the appellant and the learned advocate for respondent No.3. Though notice was served on respondent No.1/driver and 3 respondent No.2/owner of the vehicle, both are unrepresented.
4. There is no dispute over the fact that the accident took place on 15.04.2009 at midnight, about 1 K.M., from Thyagarthi Village, Sagar Taluk. Claimant was injured in the said accident. He suffered grievous injuries and fracture of both bones of the right leg i.e. tibia and fibula. At the time of the accident, the claimant was aged 25 years. The claimant has undergone surgery and took treatment as an inpatient for a period from 20.04.2009 to 28.04.2009. The doctor/PW-2 assessed the disability to an extent of 20.8% to both bones and disability to an extent of 6.7% to the whole body. The Tribunal has taken the disability while calculating the award of compensation by applying the principle of the Workmen's Compensation Act, 1923. The Tribunal has awarded compensation of Rs.39,043/- against the insurer and Rs.97,267/- against the owner and driver of the lorry involved in the accident as under:-
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Sl. Heads Amount
No.
1 Pain and suffering Rs.40,000/-
2 Medical expenses Rs.25,267/-
3 Future medical expenses Rs.10,000/-
3 Food, diet & conveyance Rs.3,000/-
charges
4 Loss of amenities Rs.10,000/-
5 Loss of income during the Rs.9,000/-
laid-up period
6 Loss of future income Rs.39,043/-
(5000X6.9%X12X18)
Total Rs.1,36,310/-
5. The appellant being aggrieved has preferred this appeal-seeking enhancement.
6. Learned advocate for the appellant would submit that the insurance policy issued by the insurer covers the liability under the Motor Vehicles Act, 1988 and the compensation awarded under the head of the Workmen's Compensation Act is incorrect, the compensation should be assessed under the provision of the Motor Vehicles Act.
7. The policy in question was marked as Ex.R.1. The policy did not indicate the premium breakup. Learned 5 advocate for respondent No.3/insurer on instructions submits that premium collected by the insurance company would indicate that the insured covered higher risk. Under the circumstances, the compensation is to be assessed under the provisions of the Motor Vehicles Act, 1988.
8. In that view of the matter, this Court has undertaken the exercise of determining the compensation payable to the claimant under the provisions of Motor Vehicles Act 1988.
9. The accident took place on 15.04.2009. The claimant was aged 25 years. The claimant sustained a fracture of both bones of his right leg and he was an inpatient for 9 days. As noticed earlier the disability to an extent of 20.8% to both the bones and disability is 6.9% to the whole body.
10. The Tribunal has noticed that the claimant was a cleaner earning Rs.1800/- per month under the Workman's Compensation Act. In the absence of proof 6 relating to the income, as per the chart prepared by the Karnataka State Legal Services Authority, notional income should be taken at Rs.5000/- for the accident of the year 2009 and at the time of the accident, the claimant was aged 25 years. Under the circumstance, this Court is of opinion that the income of the claimant is to be taken at Rs.5,000/- per month. Therefore, the claimant is entitled to enhancement of compensation under the head of loss of earnings. Under the said head the compensation would be Rs.5000X6.9%X12X18=74,520/- as against Rs.39,043/- awarded by the Tribunal.
11. It is forthcoming from the records that the claimant was inpatient for 9 days and also considering the nature of the injuries suffered by the claimant, compensation of Rs.40,000/- awarded under the head 'pain and suffering' is on the lower side. This Court is of opinion that the claimant is entitled to compensation of Rs.65,000/- under the said head.
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12. The Tribunal has awarded compensation of Rs.25,267/- under the head of the medical expenses and the compensation of Rs.10,000/- under the head 'future medical expenses' which are just and proper and do not require any modification and their is no scope for enhancement.
13. The Tribunal has awarded Rs.3,000/- under the head of food, nourishment, conveyance and other incidental expenses. Considering the nature of the injuries sustained by the claimant and that he has taken treatment as an inpatient for 9 days, compensation of Rs.10,000/- is awarded under the head said head.
14. The claimant has taken treatment as an inpatient for 9 days. The Tribunal has awarded Rs.9,000/- towards income during the laid-up period. Considering the nature of the injuries and also disability suffered by the claimant, This Court is of opinion that compensation of Rs.15,000/- be awarded under the head of loss of earning during the laid-up period.
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15. The Tribunal has awarded Rs.10,000/- under the head of loss of amenities. On considering the nature of injuries and disability sustained by the claimant and also because the claimant has taken treatment as inpatient for 9 days, this Court is of the view that the compensation of Rs.20,000/- is awarded under the head of loss of amenities.
16. The claimant is entitled to enhanced compensation as under:-
Sl.No. Heads Amount
1 Pain and suffering Rs.65,000/-
2 Medical expenses Rs.25,267/-
3 Future medical expenses Rs.10,000/-
3 Food, diet & conveyance Rs.10,000/-
charges
4 Loss of amenities Rs.20,000/-
5 Loss of income during the Rs.15,000/-
laid up period
6 Loss of future income Rs.74,520/-
(5000X6.9%X12X18)
Total Rs.2,19,787/-
Less the amount awarded Rs.1,36,310/-
by the Tribunal
Enhanced compensation Rs.83,477/-
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17. Hence, the following:-
ORDER
(i) Appeal is allowed in part. The impugned judgment
and award dated 17.03.2011 passed by the Fast Track-III and Additional MACT-IV, Shivamogga in MVC No.932/2009 is modified.
(ii) The appellant/claimant is entitled to compensation of Rs.83,477/- along with interest @ 6% p.a. from the date of the petition till realisation.
(iii) The respondent/insurance company shall deposit the amount after deducting the amount, if any, already paid.
(iv) In all other aspects, the award of the Tribunal is undisturbed.
Sd/-
JUDGE HD