Prakash Hegde K Vs Dolphy D Souza

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 30.11.2019 PASSED IN MVC NO.331/2018 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA KANNADA, MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ORDERS, 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 appellant/claimant being aggrieved by the judgment and award dated 30.11.2019 passed by the IV Additional District Judge and Member, MACT, Dakshina Kannada, Mangalore (for short `Tribunal'), in MVC No.331/2018, seeking enhancement of compensation.

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

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

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HC-KAR

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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 08.11.2017, at about 01.00 am (midnight), the claimant met with an accident near Canara Bank, Balemakki, Sulia, due to the rash and negligent driving of a car bearing registration No.KA-19-AA-3062. As a result, the claimant sustained injuries and has suffered permanent disability. With these reasons, the claimant has prayed for awarding compensation of Rs.30,00,000/-.

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Respondent No.1 was the owner and

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respondent No.2 was the insurer of the offending car. Respondent No.1 remained ex parte before the Tribunal. Respondent No.2 filed its written statement denying the averments of the claim petition and also denied its liability to pay the compensation due to breach of terms and conditions of the policy of insurance. With these reasons, it prayed to dismiss the claim petition.

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HC-KAR

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From the rival contentions of the parties, the

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Tribunal framed necessary issues.

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The claimant to prove his case, examined 03 witnesses as PWs-1 to 3 and marked 21 documents, as per Exs.P-1 to P-21. Respondents have not lead any oral or documentary evidence. However, respondent No.2Insurance Company has marked 01 document as per Ex.R-1.

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The Tribunal after hearing both parties and appreciating the evidence on record, by the impugned judgment, awarded the following amount of

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compensation:

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Particulars	Amount in Rs.
Pain and agony	40,000/-
Medical expenses	7,72,000/-
Attendant charges, food and nourishment and conveyance charge	40,000/-
Loss of earning during treatment and laid up period	44,000/-
Loss of future income due to permanent disability Total	4,35,600/- 13,31,600/-

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HC-KAR

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10. Learned counsel for the appellant/claimant

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contended that the compensation awarded by the Tribunal is inadequate; the Tribunal has not considered the income of the claimant properly. The claimant was running a TV and Radio Repair Shop. The licence was produced before the Tribunal to prove the said occupation of the claimant and that he was earning Rs.35,000/- per month. But the Tribunal has assessed the notional income as Rs.11,000/per month, which is erroneous.

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11. It is further contended that PW.3/Doctor in his evidence, assessed the permanent disability to whole body at 36%, but the Tribunal has taken disability at 30% which is erroneous. It is contended that the Tribunal has not added future prospects to the income of the claimant while assessing the compensation. No amount of compensation has been awarded towards 'loss of amenities'. Due to injuries sustained in the incident, he lost several amenities available to a healthy person. It is further argued that the claimant was admitted as an in-patient nearly for 106 days

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HC-KAR

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and had taken follow-up treatment. I n the evidence of

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PW.1, he has stated that he had incurred expenses of Rs. 3,000/- as transportation expenses each time to attend the hospital for follow-up treatment, which was not considered by the Tribunal. Due to the injuries sustained in the accident, the claimant was unable to attend to himself and, therefore, engaged the services of an attendant at a cost of Rs. 500/- per day, which was also not taken into account by the Tribunal. For these reasons, he prayed to enhance the compensation amount.

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12. Learned counsel for respondent No.2-insurer supports the impugned judgment and submits that there are no reasons to interfere with the said findings. He further submits that mere holding of licence or production of passbook are not sufficient to hold that he was earning Rs.35,000/- per month. H e further submits that the Tribunal has considered all the aforesaid grounds urged by the claimant and awarded compensation. Considering the nature of the injuries in the present case, there is no need

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HC-KAR

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to add an amount for future prospects. The claimant was stated to be running a TV and Radio repair shop and has not suffered any permanent disability that would hinder him from running his business. It is also not his evidence that he had to close the shop following the incident . Under these circumstances, adding future prospects is not required. Hence, he prayed for dismissal of the appeal.

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13. Looking at the materials placed on record, the amount of compensation awarded under most of the heads

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are on the lower side. F urther, the Tribunal has not considered any amount under the head of ‘loss of amenities,’ which requires enhancement.

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14. The fact of the accident and injuries sustained

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by the claimant and the treatment taken by him are not seriously disputed. Therefore, there is no need to reconsider the same.

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15. As rightly submitted by the learned counsel for Respondent No. 2, mere production of a licence to open a

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HC-KAR

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shop or run a business is not sufficient to prove that the claimant was earning the amount claimed. The bank passbook does not reflect the claimant’s monthly earnings. Considering this, the Tribunal has taken the claimant’s income as Rs. 11,000/- per month. There is no error in this finding.

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16. Undisputedly, the age of the claimant was 55 years, and according to his evidence, he was running the shop with the assistance of three employees. The nature of the work performed in the shop has not been disclosed in the evidence. PWs 1 and 3 have not stated how the injuries affected the nature of his work or caused any functional disabilities. Therefore, future prospects must be considered, taking into account the facts and circumstances of each case. Claimant has not made out such a case.

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The learned counsel for the appellant relied upon the judgment rendered by the Division Bench of the

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HC-KAR

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Dharwad Bench in New India Assurance Company Limited v. Abdul and Others (MFA No. 103807/2016 c/w MFA No. 103835/2016, decided on 27.05.2022). Considering the facts and circumstances of that case, as well as the injuries sustained by the claimant, the Division Bench allowed an addition of 25% of income towards future prospects, even though the claimant had sustained disability to the extent of 20% of the whole body. There is no hard and fast rule or strait jacket formula to grant the same benefit in every case. It depends upon merits of each case. Therefore, the said judgment will not assist the contention of the appellant. Accordingly, the compensation awarded under the head of ‘loss of future earning capacity due to permanent disability’ does not require any interference by this Court.

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The amount spent towards ‘medical expenses’

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has been duly awarded to the claimant and there is no dispute.

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HC-KAR

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19. The claimant was admitted as an inpatient for 106 days. After his discharge from the hospital, according to PW.1, he continued to attend the hospital for follow-up treatment. Considering the nature of his injuries, it is likely that he had to travel to the hospital by taxi or ambulance, which would have incurred additional expenses. The claimant has also produced photographs showing him walking with crutches, indicating that he could not move without assistance. Therefore, he must have engaged an attendant during his hospitalisation and even after discharge, he must have incurred expenses which were not considered by the Tribunal. In view of the nature of the treatment he received, the compensation awarded under the head of ‘pain and suffering’ also appears to be on the lower side.

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20. The claimant sustained head injuries and suffered 30% permanent disability. Under such circumstances, it is unlikely that he could have attended to his work for at least 6–7 months. It appears that the

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HC-KAR

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Tribunal considered only four months when awarding compensation under the head of ‘loss of income during the laid-up period' that requires enhancement.

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For the aforesaid discussions, the claimant is

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entitled to following amount of compensation :

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Particulars	Amount in Rs.
Pain and suffering	75,000/-
Medical expenses	7,72,000/-
Attendant charges, food and nourishment and conveyance charge	1,00,000/-
Loss of earning during treatment and laid up period (Rs.11,000/- X 6)	66,000/-
Loss of future income due to permanent disability (Rs.11,000/- x 12 x 11 x 30%)	4,35,600/-
Loss of amenities	1,00,000/-
Total	15,48,600/-
Amount awarded by the Tribunal Enhancement-	13,31,600/- 2,17,000/-

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22. The claimant is also entitled to interest at the

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

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HC-KAR

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Undisputedly, the respondents are jointly and

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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 30.11.2019, passed by the IV Additional District Judge and Member, MACT, Dakshina Kannada, Mangalore in MVC No.331/2018 stands modified.

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iii) The claimant is entitled to enhanced compensation of Rs.2,17,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization.

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iv) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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v) The remaining portion of the award of the Tribunal shall remain unaltered.

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vi) Draw award accordingly.

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