Mr. Albert Vs Mr. Alok Kashyap

MR.ALOK KASHYAP S/O.ASUTOSH KUMAR B.206, FORTUNA WHITE WINGS-APARTMENT, 1^ST MAIN BEHIND BASAVANAGAR BUS STOP TALA CAUVERY LAYOUT MARATHAHALLI COLONY BENGALURU-560 037

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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THE MANAGER M/S.BHARTI AXA GENERAL INSURANCE COMPANY LIMITED 'HOSA CENTER', 1^ST FLOOR NO.43, MILLER ROAD VASANTHNAGAR OPP.IMPERIAL HOTEL BENGALURU-560 052

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…RESPONDENTS

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(BY SRI B.PRADEEP, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED V/O.DATED 09.09.2024)

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NC: 2025:KHC:11620 MFA No. 3521 of 2023

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 31.12.2022 PASSED IN MVC NO.1292/2020 BY II ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER-MACT, COURT OF SMALL CAUSES, BENGALURU.

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THIS APPEAL COMING ON FOR FINAL HEARING, 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 appellant-claimant challenging the judgment and award dated 31.12.2022 passed in MVC.No.1292/2020 by II Additional Small Causes Judge and ACMM, Member-MACT, Court of Small Causes, Bengaluru (for short ‘the tribunal’). This appeal is founded on the premise of inadequate and meager compensation awarded by the tribunal.

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Parties to the appeal shall be referred to as per their status before the tribunal.

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Brief facts of the case are as under:

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On 16.02.2020 at about 4:00 p.m., the claimant was

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crossing the road by observing rules and regulations of the

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NC: 2025:KHC:11620 MFA No. 3521 of 2023

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traffic signal, at that time, the driver of i 10 car bearing registration No.KA-01-MU-3178 came with high speed in a

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rash and negligent manner and dashed against the claimant. Due to which, he sustained grievous injuries and met with financial expenditure for treatment. Therefore, the claimant filed a claim petition seeking compensation from the owner and the Insurance Company of the offending vehicle.

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3.1 Respondent No.1 though filed vakalath, did not represent the matter and was placed absent. Respondent No.2-Insurance Company filed written statement denying the entire claim of the claimant and sought for dismissal of the claim petition.

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3.2 On the basis of materials placed on record and

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the evidence produced by the parties, the tribunal awarded total compensation of Rs.6,72,300/- along with interest @ 6% per annum and directed the respondentInsurance Company to pay the compensation within a period of three months.

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3.3 Being aggrieved by the inadequate compensation awarded by the tribunal, the claimant is before this Court.

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It is the vehement contention of learned counsel for appellant-claimant that the compensation awarded and

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the income taken by the tribunal are on the lower side. The disability assessed by the tribunal is on the lower side, despite the opinion expressed by the Doctors PWs.2 and 4. Therefore, the loss of future earning capacity would consequently have to be enhanced, so also, under other heads, the compensation requires to be enhanced. On these grounds, he seeks to enhance the compensation.

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Per contra, learned counsel for respondentInsurance Company contends that the compensation awarded by the tribunal is just and reasonable. He sustains the impugned judgment and award passed by the tribunal on the ground that no material proof is produced with regard to income. However, the tribunal has taken the notional income, which is justified. The tribunal is also justified in assessing the disability at 15% to the whole

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body taking into consideration the opinion expressed by the Doctor and the same does not call for interference. On

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these grounds, he seeks dismissal of the appeal.

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I have heard that learned counsel for appellantclaimant and learned counsel for respondent-Insurance Company and perused the impugned judgement and award and also the original records.

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The occurrence of accident, involvement of vehicle and injuries sustained in the Road Traffic Accident

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are proved and established by production of Exs.P1 to P23. Therefore, the negligence is rightly attributed against the driver of the offending car.

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Now coming to the aspect of age, avocation, income, multiplier and disability for awarding compensation, it is seen that the claimant was aged 50 years as on date of occurrence of accident and the appropriate multiplier applicable is '13', which is correctly taken by the tribunal and the same does not call for

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interference. The tribunal has rightly taken the income at Rs.14,500/- as per notional income chart, which also does

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not call for interference, as there is no proof of any higher income produced by the claimant.

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The aspect of disability assessed at 15% by the

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tribunal would have to be interfered for the reason that two doctors, PWs.2 and 4 have opined different disabilities. PW.2 opined the disability to an extent of 34.99% to the left lower limb and 17.5% to the whole body, whereas PW.4 opined the disability to an extent of 12% to the whole body. If the disability opined by PW.2 is deducted by 1/3^rd , it would roughly come to 12% and the disability assessed by PW.4 at 12% to the whole body. Therefore, taking into consideration of the same, the average disability could be taken at 25% as against 15% taken by the tribunal. Under the circumstance, the claimant is entitled to Rs.5,65,500/- (Rs.14,500/- x 12 x 13 x 25%) towards loss of future earning capacity due to

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NC: 2025:KHC:11620 MFA No. 3521 of 2023

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permanent disability as against Rs.3,39,300/- awarded by the tribunal.

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The tribunal awarded Rs.40,000/- towards pain and suffering. However, this Court deems it appropriate to award Rs.60,000/- under this head.

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The tribunal awarded Rs.15,000/- towards loss of amenities. However, this Court deems it appropriate to

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award Rs.30,000/- under this head.

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The tribunal awarded Rs.2,19,000/- towards medical expenses and Rs.15,000/- towards future medical expenses, which do not call for interference and the same are retained.

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The tribunal awarded Rs.15,000/- towards conveyance, food, nourishment and attendant charges. However, this Court deems it appropriate to award Rs.20,000/- under this head.

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The tribunal awarded Rs.29,000/- towards loss

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of income during laid up period and rest period. However,

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the claimant would require atleast four months period to recuperate and get back to his normal day to day activities, the claimant is entitled to Rs.58,000/- (Rs.14,500/- x 4) under this head.

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In view of the above, the claimant would be

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entitled to total compensation of Rs.9,67,500/- as against Rs.6,72,300/- awarded by the tribunal, as mentioned in the table below:

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Sl.No.	Head of compensation	Amount of compensation awarded
1.	Loss of future earning	5,65,500-00
2.	Pain and suffering	60,000-00
3.	Loss of amenities	30,000-00
4.	Medical expenses	2,19,000-00
5.	Future medical expenses	15,000-00
6.	Conveyance, food, nourishment and attendant charges	20,000-00
7.	Loss of income during laid up period and rest period	58,000-00
	TOTAL	9,67,500-00

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Accordingly, I pass the following:

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O R D E R

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i) The appeal is allowed-in-part;

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ii) The impugned judgment and award dated 31.12.2022 passed in MVC.NO.1292/2020 by II Additional Small Causes Judge and ACMM, Member-MACT, Court of Small Causes, Bengaluru, is modified;

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iii) The appellant-claimant is entitled to total compensation of Rs.9,67,500/- as against Rs.6,72,300/- awarded by the tribunal along with interest at 6% per annum;

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iv) The respondent-Insurance Company shall pay the balance amount within a period of four weeks from the date of receipt of a copy of this order;

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v) The compensation amount shall be released in favour of the appellant-claimant as per the terms of the tribunal by electronic transfer to the claimant upon furnishing the required bank details/upon proper identification;

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