Laxmi Nemani Mense Vs Nitin Balawant Hangirgekar

THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED IN M.V.C. NO.898/2016, ON THE FILE OF THE XI ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. M.A.C.T BELAGAVI, AT: BELAGAVI DATED 14/12/2016 BY ALLOWING THIS APPEAL WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:12566-DB MFA No. 100453 of 2017

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HC-KAR

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CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

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This appeal is filed by the appellant/claimant seeking enhancement of compensation being aggrieved by the judgment & award dated 14.12.2016 passed in MVC No.898/2016 by the XI Additional District & Sessions Judge and Additional MACT, Belagavi (for short, ‘Tribunal’).

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2. Brief facts necessary to decide the appeal are that on 16.11.2015 at about 6.00 a.m., the appellant/claimant was returning from morning walk from Brahma Nagar at that time, rider of the motorcycle bearing Reg. No.KA-22/ES-2319 rode in a rash and negligent manner dashed to the appellant/claimant resulting in grievous injuries. She was treated as an inpatient for 6 days from 16.11.2015 to 21.11.2015 at Vijaya Hospital, Belagavi by incurring more than Rs.2,00,000/towards treatment. She filed the claim petition.

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HC-KAR

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3. The respondents opposed the claim petition by denying the accident and the injuries suffered by the appellant/claimant and sought for dismissal of the claim petition. The appellant/claimant examined herself as PW-1 and Dr.S.R.Angadi as PW-2 and got marked Exs.P1 to P12. The respondents did not adduce any evidence. The Tribunal on appreciation of the oral and documentary evidence on record, awarded a total compensation of Rs.2,27,900/- with interest at 9% per annum from the date of petition till the date of realization and Rs.20,000/- towards future medical expenses without interest. Being aggrieved, the appellant/claimant is before this Court seeking enhancement of compensation.

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4. Sri.Harish S. Maigur, learned counsel appearing for the appellant/claimant submits that the Tribunal has erred in assessing income, disability and awarded meager compensation under the head of loss of income during the laid up period and no compensation has been awarded towards the loss of amenities. Hence, he seeks to allow the appeal.

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5. Per contra , Sri.M.Y.Katagi, learned counsel appearing for respondent No.2/Insurance Company supports the impugned

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HC-KAR

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judgment and award of the Tribunal and submits that the appellant/claimant has not produced any legally acceptable evidence to prove her income and compensation awarded on all other heads is just and proper and does not call for any interference. Hence, he seeks to dismiss the appeal.

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6. We have heard the learned counsel appearing for the parties and perused the appeal papers along with material available on record. We have given our anxious considerations to the submissions advanced on both sides. The point that arises for consideration in this appeal is Whether the appellant/claimant is entitled for higher compensation?

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7. The aforementioned point is answered in ‘partly affirmative’ for the following reasons:

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The injured appellant/claimant on 16.11.2015 was returning from morning walk from Brahma Nagar at that time, the rider of the motorcycle bearing Reg. No.KA-22/ES-2319 rode in a rash and negligent manner and dashed to the appellant/claimant resulting in grievous injuries. She was treated as an inpatient for 6 days from 16.11.2015 to 21.11.2015 at Vijaya Hospital, Belagavi by incurring more than

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HC-KAR

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Rs.2,00,000/- towards treatment. The Tribunal assessed the income of the injured at Rs.7,000/- per month and assessed disability at 13% and awarded total compensation of Rs.2,27,900/- with future medical expenses of Rs.20,000/-. The accident is of the year 2015 and as per the notional income chart of KSLSA, the income is re-assessed at Rs.8,000/- per month. Similarly, taking note of the injuries suffered as referred in discharge summary at Ex.P7, disability certificate at Ex.P9 and oral testimony of PW-2, we re-assess the disability of the injured at 15%. The Tribunal has erred in not awarding compensation under the head of loss of amenities which the appellant/claimant would be entitled at Rs.40,000/-. The appellant/claimant would be entitled to Rs.24,000/- under the head of loss of income during the laid up period as against Rs.14,000/- awarded by the Tribunal. The award of compensation on all other heads is unaltered. The enhanced compensation amount carries interest at the rate of 6% per annum.

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8. This Court re-determined the compensation as under:

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HC-KAR

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HEADS	AMOUNT (in Rs.)
Towards pain and suffering	40,000/-
Towards Medical expenses	43,697/-
Diet, nourishment, conveyance and attendant charges	10,000/-
Loss of income during laid-up period	24,000/-
Loss of future earnings due to disability (Rs.8000 x 12 x 11 x 15%)	1,58,400/-
Loss of amenities	40,000/-
Towards future medical expenses	20,000/-
Total	3,36,097/-

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9. Thus, the appellant/claimant shall be entitled to total compensation of Rs.3,36,097/- as against Rs.2,47,900/- awarded by the learned Tribunal.

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10. In the result, this Court proceeds to pass the following:

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ORDER

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a) Appeal stands allowed in part .

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b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant would be entitled to total compensation of Rs.3,36,097/- as against Rs.2,47,900/- awarded by the Tribunal.

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HC-KAR

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c) The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

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d) The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from today.

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