Ravikiran.B Vs Mr. Srinivas v. Major

THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., NO.41/7, 8^TH F MAIN ROAD, MEZZANINE FLOOR, JAYANAGAR 3^RD BLOCK, OPP. TO BESCOM, JAYANAGAR, BENGALURU - 560 011.

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…RESPONDENTS (BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2. V/O DATED 10.08.2017 NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.01.2015 PASSED IN MVC NO.3153/2013 ON THE FILE OF THE IX ADDITIONAL SMALL

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HC-KAR

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CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BANGALORE, 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 is the claimant's appeal challenging the judgment and award dated 07.01.2015, passed by the learned IX Additional Small Causes Judge and XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore (SCCH-7) (for short as 'the Tribunal'), in MVC No.3153/2013, for enhancement of the compensation.

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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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Brief facts of the case are that on 28.05.2013 at about 4.45 p.m., the claimant was going on the Motor Cycle bearing Registration No.KA-05-EZ-8690. At Hoskerehalli Main Road, BSK 3^rd Stage, Bengaluru, he met with an accident due to rash and negligent driving of Bajaj Tempo bearing Registration No.KA-05-A-0446, by its driver. As a result of

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HC-KAR

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which, the claimant sustained the grievous injuries. He had taken treatment in Udbhav Hospital and thereafter, in Dhanush Hospital, Byraveshwara, Bengaluru. He underwent surgery and spent substantial amount towards medical expenses.

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It is further the case of the claimant that he was a driver and earning Rs.8,000/- per month. He was aged about 20 years at the time of accident. With these reasons, he has prayed to award compensation of Rs.10,00,000/-.

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Respondent No.1 is the owner and respondent No.2

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is the insurer of the offending vehicle. Respondent No.1 remained ex-parte. Respondent No.2 in his written statement denied the contentions of the claimant and denied its liability to pay the compensation.

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From the rival contentions of the parties, the Tribunal had framed the necessary issues for its determination.

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The claimant to prove his case examined 2 witnesses as PWs.1 and 2 and got marked 20 documents as Exs.P1 to P20. Respondent has not lead evidence.

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The Tribunal after hearing both the parties and appreciating the evidence available on record, held that the

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HC-KAR

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accident had taken place due to rash and negligent driving of the Bajaj Tempo (offending vehicle) by its driver. The Tribunal assessed the age of claimant as 20 years and his income as Rs.4,500/- per month, assessed disability to an extent of 10% to the whole body, applied multiplier is '18' and awarded the following amount of compensation:

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Sl.	Compensation Heads	Compensation
No		Amount
1.	Loss of future income arising out of 10% Disability	Rs.97,200-00
2.	Pain and sufferings	Rs.15,000-00
3.	Loss of amenities of life	Rs.20,000-00
4.	Marriage Prospects	Rs.10,000-00
5.	Loss of income during laid up period	Rs.9,000-00
6.	Actual medical expenses	Rs.87,250-00
7.	Future medical expenses	Rs.20,000-00
8.	Conveyance	Rs.2,000-00
9.	Attendant Charges	Rs.2,000-00
10.	Food, Nourishment & Diet Charges	Rs.2,000-00
	Total	Rs.2,64,450-00

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Being aggrieved by the same, claimant preferred

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this appeal for enhancement of the compensation.

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I have heard the arguments of learned counsel for the appellant and learned counsel for respondent No.2.

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HC-KAR

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There is no dispute in respect of the accident in

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question and injuries sustained by the claimant. Therefore, there is no need to reconsider the same.

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The main contention of the appellant is that though PW-2 in his evidence had stated that the claimant had suffered disability of 15% of the whole body, but the Tribunal has taken only 10%. He further contends that the income of the claimant ought to have been taken at Rs.8,000/- per month instead of Rs.4,500/- per month. Even if the notional income is considered as per the chart prepared by the Karnataka State Legal Services Authority, it could be taken as Rs.8,000/- per month. Instead of the same inadequate compensation was awarded. He further stated that the amount of compensation awarded on the other heads is on the lower side and prayed to enhance the same.

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The learned counsel for the insurer supports impugned judgment and contends that the Tribunal has considered all the materials and rightly awarded the compensation. It does not call for any interference by this Court. Hence, he prayed for the dismissal of the appeal.

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HC-KAR

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Following questions that arises for the

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determination are:

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" i) Whether the claimant is entitled for the enhancement of compensation?.

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ii) What order?".

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According to the medical evidence, the claimant sustained subtrochanteric fracture of right femur; He underwent surgery and he had taken treatment as an in-patient from 28.05.2013 to 02.06.2013. Claimant also taken follow-up treatment. PW2 in his evidence stated restriction of movements of right lower limb and assessed disability to an extent of 15% to the whole body. He has also stated that implants have to be removed, for which, the approximate cost of the surgery was Rs.45,000/-. Medical evidence produced by the claimant is at Exs.P7 to P20.

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I anxiously went through the said records. The Tribunal has taken income of the claimant as Rs.4,500/- per month, it is on the lower side. Following the chart of notional income prepared by the Karnataka State Legal Services Authority, income of the claimant is taken as Rs.8,000/- per

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HC-KAR

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month. Considering the evidence of PW-2, the disability assessed by the Tribunal is just and proper and it does not call for any interference by this Court. However, in view of the enhancement of income, amount of compensation calculated under the head 'loss of future earning capacity due to permanent disability', 'loss of income during laid-up period' are to be recalculated. Considering the injuries suffered, treatment taken and the occupation of the claimant, the amount of compensation awarded under other heads is on the lower side, which needs to be enhanced.

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For the above said discussion, following amount of

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compensation is awarded:

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Sl.	Compensation Heads	Compensation
No		Amount
1.	Loss of future earning capacity due to permanent disability (8,000X12X18X10%)	Rs.1,72,800-00
2.	Pain and sufferings	Rs.40,000-00
3.	Loss of amenities of life	Rs.25,000-00
4.	Marriage Prospects	Rs.10,000-00
5.	Loss of income during laid up period(8,000X3)	Rs.24,000-00
6.	Actual medical expenses	Rs.87,250-00
7.	Future medical expenses	Rs.40,000-00

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HC-KAR

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8.	Conveyance/ Attendant Charges/	Rs.25,000-00
	Nourishment & Diet Charges
	Total	Rs.4,24,050-00
	Less: Awarded by the Tribunal	Rs.2,64,450-00
	Enhancement	Rs.1,59,600-00
	Rounded off	Rs.1,60,000-00

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The amount awarded by the Tribunal is

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Rs.2,64,450/-. The claimant is entitled for enhancement of Rs.1,59,600/-.

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Undisputedly, respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Therefore, both are jointly and severally liable to pay the said amount of compensation. The claimant is also entitled for interest @ 6% per annum, on the enhanced amount of compensation from the date of petition till its realization. Accordingly, the above said question is answered partly in affirmative and 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 impugned judgment and award dated 07.01.2015, passed by the learned IX Additional Small Causes Judge and XXXIV

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HC-KAR

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ACMM, Court of Small Causes, Member, MACT-7, Bangalore (SCCH-7), in MVC No.3153/2013, is modified;

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iii. The claimant is entitled to enhancement of compensation of Rs.1,60,000/- with interest at the rate of 6% p.a. from the date of petition till its realization.

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iv. Respondent No.2 – insurer shall deposit the said amount within a period of six weeks from the date of award.

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v. Order passed and the Tribunal pertaining to release and deposit are not disturbed.

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vi. Send back TCR along with the copy of judgment to trial Court.

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Sd/- (UMESH M ADIGA) JUDGE

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BKN/List No.: 1 Sl No.: 6

Ravikiran.B v. Mr. Srinivas v Major

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Ravikiran.B v. Mr. Srinivas v Major

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