Sri Thimmabhovi Vs Sri v Manjunath

SRI. THIMMABHOVI, S/O. SRI. SAYAKOLLALARI BHOVI, AGED ABOUT 51 YEARS, OCCUPATION: COOLIE, R/O VAKKALAGERE, KADUR TALUK, NOW R/O ASHRAYA HOUSE, BEHIND CHURCH, KALYANANAGAR, CHIKKAMAGALURU.

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…APPELLANT

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(BY SRI. VINOD GOWDA, ADVOCATE)

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AND:

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Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA

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SRI. V. MANJUNATH, S/O LATE SRI. VELAYUDAN, AGED ABOUT 51 YEARS, R/O. NEHRU NAGAR, CHIKKAMAGALURU.

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MR. PRAVEEN KUMAR, S/O. LATE SRI. GANESH RAO, AGED ABOUT 33 YEARS, R/O. BEHIND PAIS COMPOUND, CHIKKAMAGALURU.

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NATIONAL INSURANCE CO., LTD., YASHORAM CHAMBERS, R.G. ROAD,

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HC-KAR

CHIKKAMAGALURU.

…RESPONDENTS

(BY SRI.BHUVAN, ADVOCATE FOR

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SRI.B.C. SEETHARAMA RAO, ADVOCATE FOR R3, VIDE ORDER DATED 05.01.2024,

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NOTICE TO R1 IS DISPENSED WITH, R2 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.04.2021 PASSED IN MVC NO.136/2020 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, MEMBER, MACT, CHIKKAMAGALURU, 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: 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 16.04.2021 passed by the Principal Senior Civil Judge & CJM and MACT, Chikkamagaluru (for short `Tribunal'), in MVC No.136/2020 seeking enhancement of compensation.

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Though the appeal is slated for admission, with consent of learned advocates appearing for both the sides, the matter is taken up for final disposal.

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HC-KAR

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For the sake of convenience, the parties are referred to

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as per their ranking before the Tribunal.

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The brief facts of the case are that, on 17.09.2019 at about 8.15 p.m., the petitioner met with an accident due to rash and negligent riding of motor cycle bearing registration No.KA-18-U-6700 near AIT circle, Chikkamagaluru. Due to the accident, petitioner sustained fracture of left tibia. He has spent substantial amount towards medical expenses. Due to the injuries sustained in the accident, he has suffered from permanent disability and loss of his earning capacity. With these reasons, the claimant has prayed for awarding of compensation of Rs.20,00,000/-.

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The respondent No.1 was the owner and respondent

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No.3 was the insurer of the offending motorcycle. Respondents filed their respective written statements denying the averments of the claim petition and respondent No.3 denied its liability to pay the compensation. With these reasons, prayed to award compensation.

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From the rival contentions of the parties, the

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Tribunal framed necessary issues.

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HC-KAR

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The petitioner to prove his case, examined two

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witnesses PW-1 and PW-2 and marked 12 documents, as per Exs.P-1 to P-12. Respondents have not lead any oral evidence but marked Exs.R1 and R2.

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The Tribunal on the basis of the pleadings of the parties, framed the necessary issues, recorded the evidence and on appreciation of the materials available on record, held that accident occurred due to negligence of the rider of the offending motor cycle. The Tribunal has assessed the age of the claimant as 65 years and income of the claimant as Rs.10,000/- per month, disability at 10%, applied multiplier '7' and by the impugned judgment, awarded the following amount of compensation:

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Particulars	Amount in Rs.
Future loss of income	84,000
Pain and sufferings	30,000
Medical expenses and hospital charges	10,000
Loss of income during laid up period	30,000
Food and nourishment	10,000
Attendant charges	6,000
Conveyance charges	5,000
Loss of amenities	10,000
Future medical expenses	10,000
Total	1,95,000

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HC-KAR

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9. Heard the arguments of the learned counsel appearing for the claimant as well as the insurer.

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10. 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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11. Learned counsel for respondent No.1-insurer 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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12. Fact of the accident is not in dispute. The Tribunal after appreciating the evidence on record, held that the accident occurred due to the negligence of driver of the motor cycle, which is not in dispute by either side. Hence, there is no need to reconsider the same.

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HC-KAR

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13. Looking at the materials available on record, the amount of compensation awarded on all the heads more or less are on the lower side, which requires to be enhanced. The claimant was aged about 65 years at the time of the accident. He has sustained fracture of tibia. It is non-united, as per the evidence of PW-2. Considering the nature of the injury and non-union of the said injury, the disability assessed by the Tribunal is on the lower side and it can be taken as 15% to the whole body.

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14. T he claimant contended that he was earning Rs.600/- per day, but he was unable to prove the same. Therefore, the Tribunal has taken the notional income as Rs.10,000/- per month, which is on the lower side. Following the notional income chart prepared by the Karnataka State Legal Services Authority, the income of the claimant is taken as Rs.14,000/- per month.

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15. There is no dispute in respect of age and multiplier applied. On the basis of the same, loss of future earning capacity due to permanent disability is to be assessed.

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HC-KAR

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For the aforesaid discussions, the claimant is entitled

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to following amount of compensation :

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Particulars	Amount in Rs.
Pain and suffering	40,000
Medical expenses	10,000
Attendant expenses, special diet and conveyance charges	30,000
Loss of income during laid up period	56,000
(Rs.14,000 x 4)
Loss of income due to permanent disability	1,76,400
(Rs.14,000/-x 12 x 7 x 15%)
Loss of amenities	30,000
Future medical expenses	10,000
Total	3,52,400
Amount awarded by the Tribunal	1,95,000
Enhancement- Rounded off-	1,57,400 1,58,000

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17. Learned counsel for respondents contends that interest awarded by the Tribunal is on the higher side, which may be reduced to 6%. The insurer has not challenged the said findings, more over, awarding the interest is discretion of the concerned Tribunal. There is no error in the said finding. Therefore, the said contention is not acceptable.

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Respondent Nos.1 and 3 are jointly and severally liable to pay the said amount of compensation.

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HC-KAR

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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 16.04.2021 passed by the Principal Senior Civil Judge and CJM and MACT, Chikkamagaluru, in MVC No.136/2020, stands modified.

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iii) The claimant is entitled to enhanced compensation of Rs.1,58,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization, (future medical expenses of Rs.10,000/-does not carry interest).

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