P.S.R.CHANDRASHEKAR vs THE MANAGING DIRECTOR

Though this appeal is listed for Admission, with the consent of learned counsel of both sides, it is heard finally.

The appellant is the injured claimant who has filed this appeal seeking enhancement of compensation, being aggrieved by the Judgment and Award passed in MVC No.82/2009 by the Member MACT, IV Addl. Judge, Court of Small Causes, Bengaluru City, dated 17.6.2001.

Briefly stated the facts are that the appellantclaimant was returning home on a Honda Activa Scooter bearing No.KA-02-EH-1980 on 2.12.2008 at about 10.45 a.m., when he was near Hosakerehalli cross, Mysore Road, a lorry bearing Regn. No.KA-01-AA-6210 came from behind in a high speed and negligent manner and hit against his two wheeler. As a result, the claimant fell down and sustained injuries. He was treated at Maruthi Nursing Home and after first aid being provided to him, he was shifted to Gurushree Hitech Multi Speciality Hospital, Chandra Layout, Bengaluru. According to the claimant, he has spent considerable sums of money for his treatment, conveyance and nourishment. Despite that, he has sustained permanent disability. In the circumstances, he filed a claim petition before the Tribunal seeking compensation on various heads.

In response to the claim statement, respondent No.1 the owner of the offending vehicle appeared and filed his written statement admitting that he is the owner of the vehicle but denying the other averments in the claim statement.

In a separate written statement, 2nd respondent insurer filed written statement taking up various contentions and contending that the insurer was not liable to satisfy the award.

Both the respondents sought for dismissal of the claim petition.

On the basis of the aforesaid pleadings, the Trial Court framed the following issues for its consideration. 1. Whether the petitioner proves that on 2.12.2008 at about 10.45 a.m. on Mysore Road, Hosakerehalli Cross, Bangalore, he met with an accident and sustained injuries due to the actionable negligence on the part of the driver of the lorry bearing registration No.KA-01-AA-6219?

Whether petitioner proves his age and income?

Whether respondent No.2 proves that the petition is bad for non joinder of necessary parties?

Whether the petitioner is entitled for compensation if so, how much and from whom?

What order or award?

In support of his case, the claimant examined himself as PW-1 and one Dr.Manjunath as PW-2. The claimant produced 13 documents which were marked as Exs.P1 to P13.

The respondents did not let in any evidence.

On the basis of the evidence on record, the Trial Court answered issue No.1 in the affirmative, issue No.4 partly in the affirmative, issue No.2 partly in the negative, issue No.3 in the negative and allowed the claim petition in part by directing payment of compensation of Rs.63,560/- with 6% interest from the date of the claim petition till 4.9.2009. The Tribunal by its judgment and award dated 17.6.2011 directed respondent No.2 to satisfy the award.

Not being satisfied with the award of compensation by the Tribunal, the claimant has preferred this appeal.

I have heard the learned counsel for the appellant and the learned counsel for the 2nd respondentinsurer and perused the material on record as well as the original records.

The only point that arises for my consideration is as to whether, the claimant-appellant is entitled to enhancement of compensation in this appeal.

Having regard to the submissions made at the bar, it is noted that the factum of accident has been proved by the claimant. The respondent-insurance company has also admitted the issuance of policy in respect of the offending vehicle. The Tribunal has awarded compensation of Rs.63,560/- on the following heads: 1. Towards pain & suffering - Rs.20,000/-

Towards medical expenses and conveyance -Rs.15,000/-

Towards future loss of earning on account of permanent physical disability -Rs. 7,650/-

Towards loss of earning during laid up period -Rs. 9,000/-

Towards attendant charges -Rs. 3,000/-

Towards loss of amenities -Rs. 8,000/-

Towards loss of vehicle damage -Rs. 1,000/-

-------------- Total: -Rs.63,560/-

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However, I find that the Tribunal has assessed the notional income of the injured-claimant at Rs.3,000/- per month. It is contended that the claimant was involved in writing of accounts in M/s Manjunatha Associates which is a private entity, after he had retired from Central Government service. It is submitted that the assessment of notional income of Rs.3,000/- per month is on the lower side and that it should have been atleast Rs.5,000/- per month.

Per contra, learned counsel for the insurer submits that in the absence of any document, the Tribunal was justified in assessing the notional monthly income of the claimant at Rs.3,000/- and therefore, on that score there can be no enhancement of compensation.

However, under the head of loss of earning for the laid up period or loss of future earning, having regard to the fact that the claimant had retired from Central Government service and also having established the fact that he was discharging duties in a private entity even in the absence of there being any categorical evidence with regard to the actual income that was being earned by him, in my view, the notional income assessed by the Tribunal ought to have been atleast Rs.3,500/- per month as the accident is of the year 2008 and in the normal course this court has assessed the notional income of a coolie or an unskilled worker at Rs.3,000/- per month in respect of the accidents that have occurred in the year 2008. Therefore, if Rs.3,500/- is assessed as the monthly notional income of the injured-claimant and 3% is taken as the whole body disability having regard to the injury sustained by the claimant on the little toe of his right leg and other injuries to the right ankle, the whole body disability assessed at 3% is just and proper. In the circumstances, the loss of future earnings on account of permanent physical disability would be Rs.8,820/- instead of Rs.7,650/-. Further, loss of earning during laid up period for about 3 months would be Rs.10,500/- instead of Rs.9,000/-. I also find that the compensation under the head of loss of amenities is on the lower side. It should be Rs.20,000/-. The reassessed compensation is as under: 1. Towards pain and suffering -Rs.20,000/-

Towards medical expenses & conveyance -Rs.15,000/-

3.Towards loss of future earning on account of permanent physical disability -Rs. 8,820/-

Towards loss of earning during laid up period -Rs.10,500/-

Towards attendant charges -Rs. 3,000/-

Towards loss of amenities -Rs.20,000/-

Towards loss of vehicle damage -Rs. 1,000/

-------------- Total Rs.78,230/-

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The enhancement is Rs.14,670/-. The total compensation of Rs.78,230/- shall carry interest @ 6% p.a. from the date of the claim petition till realization and not till 4.9.2009 as stated by the Tribunal. The appeal is allowed to the aforesaid extent. Parties to bear their respective costs.