Riyaz S/O Khaja Miyan Vs Ramesh and Anr.

RAMESH S/O KALLAPPA HALIMANI, AGE: MAJOR, OCC: OWNER OF VEHICLE NO.KA-33/R-4554, R/O: HULLUR, TQ: MUDDEBIHAL, DIST: VIJAYAPUR, NOW AT GOGI VILLAGE, TQ: SHAHAPUR, DIST: YADGIR – 585 201.

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THE MANAGER UNIVERSAL SAMPA, GENERAL INSURANCE CO. LTD., UNIT NO.401, 4^TH FLOOR, SANGAM COMPLEX, 127, ANDHERI-KURLA ROAD, ANDHERI (E), MUMBAI – 400 059.

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…RESPONDENTS (BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2; NOTICE TOR 1 IS DISPENSED WITH)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PAYING TO CALL FOR RECORDS AND TO MODIFY THE JUDGMENT AND AWARD ATED 15.06.2019 PASSED IN M.V.C.NO.48/2017 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND M.A.C.T. KALABURAGI AND ALLOW APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF RS.9,32,715 ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON’BLE COURT.

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

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 15.06.2019 passed by Prl. Senior Civil Judge and MACT, Kalaburagi (for short, 'Tribunal') in MVC No.48/2017, this appeal is filed.

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Sri Nagraj Patil, learned counsel for appellant/claimant submitted occurrence of accident on 10.01.2015 involving insured motor vehicle in which claimant sustained grievous injuries and consequent of earning capacity and liability of insurer to pay compensation are not in dispute. In a claim petition filed under Section 166 of M.V.Avt, on contest, Tribunal awarded compensation under various heads as follows;

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HC-KAR

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Sl.No.	Heads	Amount
1	Towards pain suffering	Rs.40,000/-
2	Towards medical expenses	Rs.2,54,570/-
3	Towards diet and attendant charges	Rs.20,000/-
4	Towards loss of income during laid-up period	-NIL-
5	Towards loss of earning capacity	-NIL-
6	Towards loss of amenities	Rs.20,000/-
	Total	Rs.3,34,570/-

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It was submitted claimant was seeking

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enhancement of compensation on following grounds:

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Firstly claimant had sustained communited fracture of shaft femur, tibial plateau condylar depression fracture left, bilateral polar borton fracture, which were grievous in nature. Award of Rs.40,000/- towards pain and suffering was inadequate.

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Nextly claimant had taken inpatient treatment for a period 18 days. Tribunal had not awarded any compensation towards loss of income during laid up period. As per Ex.P20, claimant’s monthly salary was Rs.20,163/-. Therefore, sought for award of appropriate compensation.

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HC-KAR

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Further claimant was working as driver in KSRTC, injuries/disability sustained would affect enjoyment of life. Therefore, award of Rs.20,000/- only towards loss of amenities would not be justified. On above grounds, sought for allowing of appeal. Even apportionment of negligence on claimant to extent of 50% was sought to be assailed.

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On other hand, Sri Subhash Mallapur, learned counsel for respondent no.2-insurer sought to support award and oppose appeal. It was submitted Tribunal had taken note of facts and circumstances in appropriate manner and awarded just compensation leaving no scope for interference.

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Heard learned counsel and perused impugned judgment and award.

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From above, as claimant is seeking for enhancement as well as assailing findings of Tribunal on contributory negligence points that would arise for consideration are:

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(a) Whether Tribunal was justified in apportioning negligence against claimant to extent of 50% and denying compensation accordingly?

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HC-KAR

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(b) Whether claimant is entitled enhancement of compensation as prayed for?

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Insofar as apportionment of negligence, it is not in dispute that accident in question was head on collision between two motorcycles. While passing impugned award, Tribunal has taken note of police investigation records produced by claimant i.e., FIR in Crime no.6/2015 as Ex.P1, Ex.P2-complaint, Ex.P3charge sheet, Exs.P4 and P5 statement of witnesses. It observed that police after investigation had filed charge sheet against riders of both motorcycles. On consideration of same, Tribunal arrived at conclusion that accident was on account of negligence of both riders and apportioned negligence to extent of 50% each. On said finding, it denied compensation to extent of 50%. Finding of Tribunal is based on consideration of material on record and by assigning cogent reasons. There would be no justification to hold said findings as perverse. Therefore, point no.1 is answered in negative.

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Insofar as claim for enhancement, Exs.P8 and P9,

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wound certificates as well as treatment records from Kamareddy Hospital, Kalaburagi, it is seen that claimant sustained fracture of communited fracture of shat femur left,

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HC-KAR

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tibial plateau condylar depression fracture left, bilateral polar borton fracture, which would be grievous in nature. Normally, this Court awards Rs.25,000/- for major fractures and Rs.15,000/- each for minor fractures. Taking note of number and nature of fractures sustained award of Rs.40,000/- only towards pain and suffering would be inadequate. It would be appropriate to enhance it to Rs.70,000/-.

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Medical treatment records would indicate that claimant took inpatient for 18 days. However, Tribunal did not award any compensation towards loss of income during laid up period or loss of earned leave. Taking note of fact that monthly salary of claimant was Rs.20,163/- as per Ex.P20, it is found appropriate to award Rs.10,000/- under said head.

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Claimant has sustained several grievous fractures. As per deposition of PW.2-doctor, claimant sustained 40% permanent disability due to injuries sustained. Though, same may not have resulted in loss of earning capacity, as claimant is working as driver in KSRTC, same would definitely come in

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way of enjoyment of life. Under such circumstances, compensation under head loss of amenities cannot be notional

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HC-KAR

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but has to be substantial. Considering same, it is found appropriate to enhance it to Rs.50,000/-. Compensation awarded under other heads is not disturbed. Thus, claimant would be entitled for enhanced compensation as follows:

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Sl.No.	Heads	Amount
1	Towards pain suffering	Rs.70,000/-
2	Towards medical expenses	Rs.2,54,570/-
3	Towards diet and attendant charges	Rs.20,000/-
4	Towards loss of income during laid-up period	Rs.10,000/-
5	Towards loss of earning capacity	-NIL-
6	Towards loss of amenities	Rs.50,000/-
	Total	Rs.4,04,570/-