Srinivasa Mudaliar Vs United India Insurance Co. Ltd.

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.06.2019 PASSED IN MVC NO.2513/2015 ON THE FILE OF THE MEMBER, MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU CITY SCCH-4, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant being aggrieved by the judgment and award dated 03.06.2019 passed by the XVIII Addl.Judge, Court of Small Causes, Bengaluru (for short `Tribunal'), in MVC No.2513/2015 seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 01.05.2015,

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at 12.10 pm, the claimant met with an accident near Bommasandra due to rash and negligent driving of a bus bearing No.KA-51-6399 as a result he sustained grievous

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injuries. He has spent substantial amount towards medical expenses. Due to the injuries sustained in the accident, he has suffered permanent disability and loss of his earning capacity. With these reasons, the claimant has prayed for awarding of compensation.

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The respondent No.1 is the insurer and respondent No.2 is the owner of the offending motorcycle. Respondent No.2 was placed exparte. Respondent No.1 denied the contents of the claim petition; denied its liability to pay the compensation and prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his case, examined two

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witnesses as PW-1 and PW-2 and got marked 29 documents, as per Exs.P-1 to P-31. Respondents have not lead any oral or documentary evidence nor marked any documents.

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The Tribunal after recording the evidence and after hearing the argument held that accident occurred due to

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rash and negligent driving of offending vehicle by its driver. The Tribunal assessed income of claimant as Rs.10,000/- per month. His age as 47 years, assessed disability at 10% to the whole body and awarded following amount of

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compensation:

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Particulars	Amount in Rs.
Pain and suffering	30,000
Medical expenses	1,25,000
Loss of income during laid up period	20,000
Disability	1,56,000
Food, nourishment and attendant charges	10,000
Loss of future amenities and	20,000
happiness
Total	Rs.3,61,000

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8. Learned counsel for the appellant/claimant contended that the compensation awarded by the Tribunal is inadequate; The Tribunal has not considered the income of the claimant properly and the disability assessed is also on the lower side; The compensation awarded under other heads are also on the lower side. Hence, prayed for enhancement of the compensation.

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9. Learned counsel for respondent No.1-insurer

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submitted that the Tribunal has properly considered the case of the claimant and has awarded a just and reasonable compensation, which does not call for any interference by this Court and prayed for dismissal of the appeal.

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10. Heard the arguments of both the side advocates.

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The fact of accident and injury sustained by the claimants are not in dispute. The Tribunal after appreciation of the materials answered the said point in the affirmative and there is no need to reconsider the same.

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The grievance of learned counsel for appellant is that, PW-2 - doctor after clinically examining PW-1 mentioned in detail about the restrictions of movements and assessed disability to the right lower limb as 50% and to whole body as 15.66%. But the Tribunal has not considered it properly and has taken disability at 10%, which is erroneous.

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HC-KAR

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I have gone through the trial court records.

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Looking at the evidence of PW-1 and PW2, the disability assessed by the Tribunal is on the lower side. The physical disability, according to PW-2, is 15.66% to the whole body. The Tribunal could have slightly reduced this percentage while assessing the functional disability in relation to the claimant’s earning capacity. Considering the same, the permanent functional disability is taken as 12% to the whole body. Income assessed by the Tribunal is proper. No dispute about multiplier. On the basis of said figures, loss of future earning capacity due to permanent disability is assessed.

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Looking at the compensation awarded under different heads, they are on the lower side, which requires enhancement. Considering the materials available on record and appreciating the same, following amount of compensation is awarded.

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Sl.No.	Particulars	Amount in Rs.
1.	Pain and suffering	40,000
2.	Medical expenses	1,25,000
3.	Loss of income during laid up period (Rs.10,000x6)	60,000
4.	Loss of future earning capacity due to permanent disability (Rs.10,000x12x13x12%)	1,87,200
5.	Special diet, conveyance charges and attendant charges	25,000
6.	Loss of future amenities	40,000
7.	Future medical expenses	20,000
	Total Amount awarded by the Tribunal	4,97,200 3,61,000
	Enhancement Rounded off	1,36,200 1,36,000

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The claimant is entitled for enhanced interest at the

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rate of 6% p.a. from the date of petition till its realisation.

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Respondent Nos.1 and 2 are jointly and severally liable to pay the said amount of compensation.

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In the result, I proceed to pass the following:

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 03.06.2019 passed by the Member, MACT, XVIII Addl.Judge, Court of Small Causes, Bengaluru, in MVC No.2513/2015 stands modified.

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iii) The claimant is entitled to enhanced compensation of Rs.1,36,000/- with interest at the rate of 6% p.a., from the date of petition till its realization, excluding the delayed period of 195 days.

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iv) The respondent No.1Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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v) The claim petition is of the year 2015, more than 10 years has already been lapsed. Therefore, entire enhanced amount is ordered to be released in favour of the claimant on due identification.

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vi) Draw award accordingly.

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