T G Vadiraj Vs the Commissioner

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.07.2013 PASSED IN MVC NO.6222/2011 ON THE FILE OF THE VI ADDITIONAL JUDGE AND MEMBER-MACT, COURT OF SMALL CAUSES,BENGALURU CITY (SCCH-2), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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HC-KAR

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

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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Heard the arguments of both sides.

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This appeal is preferred by the injured claimant against the judgment and award dated 11.07.2013 passed by the VI Additional Judge, Member-MACT, Court of Small Causes, Bangalore, in MVC No.6222 of 2011, whereby the Tribunal has granted compensation of Rs.2,25,680/- with interest at 8% per annum from the date of petition till realisation.

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The injured claimant, aged 19 years old, met with an accident on 15.09.2011. While the claimant was riding a motorcycle bearing registration No.KA-43-HC-1607, the driver of the car bearing registration No.KA-01-MG-6859 came in rash and negligent manner and dashed against the claimant. The charge sheet is filed against the driver of the car. But the Tribunal observed that the claimant was engaged to ride such a

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HC-KAR

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motorcycle in a busy area in the morning hours and thus, assessed his contributory negligence at the rate of 30%.

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The learned counsel of the appellant-claimant

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contended that claimant had no driving licence, there is no negligence on the part of the claimant. This appeal is filed on the ground that the assessment of contributory negligence to an extent of 30% against the claimant is without any basis and is liable to be set aside.

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The claimant, aged 19 years, was studying B.Com. at the time of accident. P.W.2-doctor, as per Exhibit P6, has stated that the claimant has sustained the following fractures, which are grievous in nature:

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“knee movements were painful, shortening of 4 cms of left leg and 2 cms shortening of left thigh , X-ray was taken, which showed fractures united.”

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P.W.2-Doctor has stated that the claimant was

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admitted as inpatient on 15.09.2011. On 23.09.2011, CRIF with IM nail was done for left femur, left tibia fracture. Herbert screw fixation for right capitulum, percutaneous K-wire fixation was done for right metacarpal fracture, and he was discharged

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HC-KAR

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on 01.10.2011 with an advice for physiotherapy to walk with support of the walker for follow up treatment. Again, the petitioner was admitted on 09.12.2012 for removal of implants and discharged on 13.12.2012. As per the X-ray, fractures were united. The disability to the lower limb is assessed as 60%, right upper limb is assessed as 20% and the total disability as 27%. But the tribunal has not taken the disability.

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The petitioner, aged 19 years, met with accident on 15.09.2011 and as per the guidelines of the Karnataka State Legal Services Authority, his notional income is to be taken as Rs.6,500/- per month. As there is shortening of left leg and a shortening of left thigh, the disability assessed by PW2 at the rate of 27% is to be taken. The multiplier is to be taken as 18. Therefore, the loss of future income comes to Rs.3,79,080/(6,500 x 12 x 18 x 27%). The medical expenses granted at the rate of Rs.1,47,400/- and Rs.75,000/- for pain and suffering holds good . He sustained shortening of the leg also. The Tribunal already granted an amount of Rs.1,00,000/- for loss of prospects of education during the period of treatment and also loss of amenities and it holds good. This Court also finds it

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HC-KAR

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reasonable to grant an amount of Rs.30,000/- for transport charges. In all, the claimant is entitled for total compensation of Rs.7,31,480/- as against Rs.2,25,680/- awarded by the Tribunal.

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The award of compensation passed by the Tribunal is

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modified as under:

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Heads	Amount in Rs.
1. Pain and agony	75,000/-
2. Medical expenses, attendant, food, diet, nourishment	1,47,400/-
3 Loss of prospects of education during the period of treatment,	1,00,000/-
loss on account of permanent disablement, disappointment, discomfort, fun and also loss of amenities period
4. Transport charges	30,000/-
7. Loss of future income	3,79,080/-
Total	7,31,480/-

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Learned counsel for the petitioner-claimant has relied upon the judgment of the Hon'ble Supreme Court in the case of

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Sudhir Kumar Rana Vs. Surinder Singh and others reported in AIR 2008 SA 2405 , wherein the Hon'ble Supreme

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HC-KAR

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Court has held that though there is no driving licence, the insurance company cannot be exonerated from the liability. In the light of the aforesaid judgment, this Court finds that the insurance company has to pay the compensation.

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The learned counsel for the insurance department submitted that rate of interest granted on the compensation at the rate of 8% is to be reduced to 6% per annum. This Court finds it reasonable to reduce the rate of interest from 8% to 6% per annum.

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In the result, the following order is passed:

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(i) The appeal is allowed in part.

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(ii) The petitioner-claimant entitled to totals compensation of Rs.7,31,480/- with interest at the rate of 6% per annum from the date of petition till the date of realisation.

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(iii) The respondent-insurance department is directed to deposit the entire compensation within one month from the date of this order.

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