Sri.H. M. Harish Vs Sri. Kemparaju H.N.

ROYAL SUNDARAM GENERAL INSURANCE COMPANY LTD., NO. 30, THIRD FLOOR, J.N.R. CITY CENTRE, RAJARAM MOHAN ROY ROAD, SAMPANGI RAMA NAGARA, BENGALURU-560 027.

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…RESPONDENTS

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(BY SRI. H.S. LINGARAJ, ADVOCATE FOR R2; V/O. DATED 24.05.2023, NOTICE TO R-1 DISPENSED WITH)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2022 PASSED IN MVC NO.1324/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, KORATAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the claimant being dissatisfied by the inadequate compensation awarded by the Senior Civil Judge and Additional Motor Accident Claims Tribunal Court at Koratagere.

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The parties shall be described as per the status before the tribunal as claimant and respondents.

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3. Brief facts of the case are as under:

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On 02.09.2019 while the claimant was travelling on a motorcycle TVS Apachi bearing registration No.KA-06/EP2720 along with pillion rider by name Bharath. At that time one Maruthi Swift car bearing registration No.KA06/D-8931 came in a rash and negligent manner from the opposite direction and dashed against the motorcycle leading to the occurrence of accident.

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The petitioner as well as the pillion rider suffered grievous injuries. Due to the injuries suffered by the claimant in a road traffic accident and financial expenditures incurred for the treatment during and thereafter, he filed claim petition seeking compensation against the respondents.

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First respondent did not appear before the Court, was placed ex-parte and second respondent - insurance company filed statement of objections denying

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the claim of the claimant and sought for dismissal of the claim petition.

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On the basis of materials placed on record both oral and documentary, the Tribunal awarded total compensation of Rs.22,55,525/- along with interest at the rate of 6% p.a. and fixed the liability jointly and severally against respondent Nos.1 and 2 and since the policy was in force respondent No.2 was directed to deposit the compensation amount within 2 months.

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The claimant being dissatisfied with the inadequate compensation is before this court seeking enhancement of compensation.

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It is the vehement contention of learned

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counsel for the claimant that the Tribunal has committed gross error in not awarding just and reasonable compensation having ignored the materials placed on record both oral and documentary. The Tribunal has failed to take correct income of the claimant as per Ex.P13 which

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is admitted. The Tribunal has also committed an error in not awarding future prospects at 40% in addition to the income and awarded 25% future prospects which is erroneous and same requires to be set aside and enhanced to 40%. It is also contended by the learned counsel for the claimants that the Tribunal has failed to award compensation under the head amenities so also under the head loss of income during laid up period is meagre which requires enhancement. It is also contended that the future medical expenses awarded is on the lower side and the same requires to be enhanced. So also the award of amount under pain and suffering is also to be enhanced. On these grounds he seeks enhancement of compensation.

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Per Contra the learned counsel representing the respondent - insurance company sustains the impugned order by contending that just and reasonable compensation is awarded by the Tribunal. By taking into consideration all relevant material documents both oral

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and documentary and on the basis of the salary slip produced by the claimant himself the income is taken at Rs.16,758/- which does not call for interference as the incentives would have to be deducted as it is not constant and not part of the salary. It is also contented by the learned counsel for the insurance company that on all other heads the compensation awarded is quite reasonable which does not call for interference. Learned counsel further contends that awarding of 25% in addition as future prospects is correct based on the judgment of the Division Bench of this Court in MFA No.103807/2016

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c/w MFA No.103835/2016 . On these grounds he contends that the compensation awarded is just and reasonable and the appeal deserves to be dismissed.

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I have heard the learned counsel for the appellant/ claimant and learned counsel for the respondent - insurance company, perused the impugned judgment and award, so also the original records and the submissions of learned counsel for both the parties.

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The occurrence of accident, involvement of the vehicle, injuries sustained by the claimant in the road traffic accident are proved and established by production of Exs.P1 to P18. Therefore, the negligence is rightly attributed as against the driver of the offending car which has not been challenged or questioned by the driver of the car.

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Coming to the aspect of age, avocation, income, multiplier, disability and award of compensation, it is seen that the claimant was aged 28 years as on the date of occurrence of accident and the multiplier adopted by the Tribunal at '17' is correct and the same does not call for interference.

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Claimant has got examined the doctor as PW.2 who has adduced evidence and provided his opinion. He has clearly stated that there is a permanent physical disability of 45% of the lower limbs and 32% of right upper limb amounting to 26% of total body functional disability. However the Tribunal not being satisfied with

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the opinion expressed by the doctor has taken the disability at 25%. The Tribunal has assessed the income of the claimant at Rs.16,758/- on the basis of Ex.P13 produced by the claimant excluding the incentives.

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On carefully perusing the Ex.P13, the income of the claimant varies from Rs.20,000/- to Rs.29,000/- for several months. No doubt it is true that the income of Rs.16,758/- is also shown along with the incentives and variables the claimant has been drawing to an extent of Rs.20,000/- to Rs.29,000/- for several months which is produced and not disputed by the respondents. Therefore, on average basis Rs.20,000/- could be taken as the income of the claimant for the reason that when a person works in an organization not a Governmental setup or otherwise, apart from the salary he is also provided incentives for the amount of work done in the regular course of his employment, the same cannot be negated or discredited as it is a part of his employment in which due to his excess work or over work or excess hours of work

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he gets an incentive. In the present case the salary slips produced constantly show there is an incentive provided which varies to several months. As stated earlier the monthly income of the claimant varies from Rs.20,000/- to Rs.29,000/-. Under the circumstances, it would be prudent to assess the income at Rs.20,000/- pm.

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Coming to the aspect of disability assessed by the doctor at 26%, I am in agreement with learned counsel for the claimant that disability requires to be taken at 26% to the whole body. The Tribunal has reduced the disability to 25% without any proper basis and materials on record to the contrary. When the medical expert i.e., the doctor provides an opinion on the basis of his expertise in the field of medicine, the Tribunal which does not have any knowledge of medicine or expertise in medicine cannot reduce it unless contrary material is placed on record by the respondents which should be cogent to discredit the experts' opinion on disability. In the present case no such material is produced by the

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respondents and therefore, the question of reducing it to 25% is illogical. Therefore the disability is taken at 26%.

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The Tribunal has awarded future prospects of addition of income of 25% whereas the claimant is aged less than 40 years and in a situation where the disability is more than 20% considering the present case on hand where there is serious disability of 3 fractures including the right femur neck fracture and amputated crush right hand and disability being 26% the future prospects would have to be awarded at 40% in addition to the income. Under the circumstances, the loss of earning capacity due to permanent disability in the present case would be Rs.20,000/- + 40% = Rs.28,000/- X 12 X 17 X 26% = Rs.14,85,120/- as against Rs.10,68,144/-.

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The Tribunal has awarded Rs.9,66,833/-

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towards hospitalization and medical expenses on the actual bills produced, the same is retained. Towards food, nourishment and attendant charges Rs.30,000/- is awarded as the claimant was inpatient for 30 days, the

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same is retained. Towards loss of income during laid up period at least for a period of 4 months the amount requires to be awarded. In view of this court taking the income at Rs.20,000/- p.m for a period of 6 months Rs.1,20,000/- is awarded as against Rs.1,00,548/-. Towards pain and suffering the Tribunal awarded Rs.50,000/-. Considering the magnitude of injuries on the claimant being inpatient for 30 days, this Court deems it appropriate to award Rs.1,00,000/- under this head as against Rs.50,000/-. Towards future medical expenses Rs.40,000/- is awarded whereas the doctor has deposed Rs.80,000/- is required for implant removal. This Court deems it appropriate to award Rs.70,000/- under this head. The Tribunal has failed to award any amount towards amenities. This Court deems it appropriate to award Rs.50,000/- under this head towards loss of amenities. In view of the discussions made herein above the appellant/claimant would be entitled to total compensation of Rs.28,21,953/- as against

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Rs.22,55,525/-.

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Accordingly, I 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 04.11.2022 passed in MVC No.1324/2019 by the Court of Motor Accident Claims Tribunal, Koratagere is modified;

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iii) The appellant/claimant shall be entitled to a total compensation of Rs.28,21,953/- as against Rs.22,55,525/- along with interest at the rate of 6% p.a.;

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iv) The respondent No.2 - Insurance company shall pay the compensation amount within a period of six weeks from the date of receipt of copy of this order;

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