Smt. M.K. Nanjammanni Vs M/S Pmi Process Systems

THIS MFA is FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.04.2013 PASSED IN MVC NO.2/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MALAVALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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NC: 2025:KHC:23546 MFA No. 4110 of 2015

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HC-KAR

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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 claimant challenging the judgment and award dated 15.04.2013, passed by the Senior Civil Jude and MACT, at Malavalli (for short “the tribunal”), in MVC No.2/2011, seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per the ranking before the Tribunal.

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The brief facts of the case are that the claimant met

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with an accident on 24.04.2010 at Gejjalagere on Bangalore - Mysore Highway due to rash and negligent driving of the offending vehicle Maruthi Car bearing registration No.KA-05ME-5519 by its driver; and in the said accident, she sustained fractures of both bones left leg and other injuries. She has suffered permanent disability due to the said injuries. She had spent more than Rs.2,00,000/- towards medical expenses. She was aged 33 years and earning salary of Rs.1,500/- per month by working as Secretary, Milk Dairy, Mallinathapura, Malavalli Taluk. She was also vending the milk and earning Rs.10,000/per month. With these reasons, she prayed to award compensation of Rs.25,00,000/-.

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HC-KAR

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The respondent No.1 is the owner and respondent

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No.2 is the insurer of the offending vehicle. Respondent No.1 filed objections denying the contentions of the claimant. It also contended that rider of the motorcycle was riding the vehicle in a rash and negligent manner, as a result he dashed against the Car belonging to respondent No.1. The driver of the said Car was not at all responsible for the accident in question. Therefore, respondent No.1 is not liable to pay the compensation. It is also contended that the said vehicle was insured with respondent No.2 and policy of insurance was in force as on the date of the accident and hence, if petition is allowed, the respondent No.2 - Insurer be directed to pay the compensation. For these reasons prayed to dismiss the claim petition.

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The respondent No.2 - Insurer filed objections

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denying the contents of the claim petition. It was also contended that the accident took place due to rash and negligent riding of the motorcycle by its rider and the claimant was pillion rider. It was also contended that its liability is restricted to the terms and conditions of the policy of

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NC: 2025:KHC:23546 MFA No. 4110 of 2015

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HC-KAR

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insurance. With these reasons, it was prayed to dismiss the claim petition.

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The Tribunal framed necessary issues and recorded the evidence. The claimant's to prove her case, examined herself as PW-1 and Doctor as CW-1 and got marked Ex.P1 to Ex.P10 as well as Ex.C1 to Ex.C8. The respondents have not lead oral evidence, but, marked the copy of insurance policy as Ex.R1.

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After hearing both the parties, the Tribunal held that the accident took place due to rash and negligent driving of the Car by its driver and the Tribunal awarded following

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amount of compensation:

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Sl.No	Heads	Amount
1.	Pain and suffering	Rs.30,000/-
2.	Medical expenses	Rs.88,183/-
3.	Loss of income during laid-up period	Rs.2,000/-
4.	Permanent Disability	Rs.5,000/-
5.	Future medical expenses	Rs.50,000/-
6.	Incidental expenses	Rs.200/-
	Total	Rs.1,75,383/-
	Rounded off	Rs.1,75,500/-

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It is submitted that the driver of the offending Car has paid Rs.15,000/- towards medical expenses and the same was deducted by the Tribunal in the total amount of

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NC: 2025:KHC:23546 MFA No. 4110 of 2015

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HC-KAR

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compensation awarded. The claimant being dissatisfied with the amount of compensation awarded by the Tribunal, filed this appeal to enhance the amount of compensation.

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

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Learned counsel for the appellant submits that the amount of compensation awarded by the Tribunal is very meager. The claimant has been suffering by permanent disability of 20% to the whole body that was not considered. Total amount spent by her was more than Rs.2,00,000/- and that was not taken into account. The amount of compensation awarded under other heads were also very marginal and hence, he prayed for enhancement of compensation.

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Learned counsel for respondent No.2 supports the impugned judgment and submits that the Tribunal has awarded just and reasonable compensation and it does not call for any interference by this Court.

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NC: 2025:KHC:23546 MFA No. 4110 of 2015

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HC-KAR

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The only point that arises for determination is:

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"Whether the claimant is entitled to the enhancement of compensation, if so, what amount?”

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As rightly submitted by the learned counsel for the appellant that the fact of accident is not disputed. The respondents have not challenged the said award passed by the Tribunal. Therefore, there is no need to reconsider the same.

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On the re-appreciation of the evidence, the amount of compensation awarded by the Tribunal is on the lower side. The Tribunal, assessed the age of claimant as 33 years and his income at Rs.2,000/- per month. No amount of compensation was awarded towards loss of future earning capacity due to permanent disability and loss of amenities.

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The claimant contends that she was working as Secretary, Milk Dairy, Mallinathapura, Malavalli Taluk as well as vending milk and earning Rs.10,000/- per month. Though in her cross-examination, she has stated that documents were produced to prove her income, but no such documents are placed on record. Therefore, notional income has to be assessed. The claimant was aged about 33 years. Following the

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HC-KAR

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chart of notional income prepared by the Karnataka State Legal Services Authority, the notional income of the claimant is taken at Rs.6,500/- per month.

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CW-1 in his evidence has stated that the claimant sustained "Type III B open comminuted fracture of distal 1/3^rd of both the bones left leg with intra articular extension and bone loss" . She was treated as inpatient from 26.04.2010 to 30.04.2010 and she underwent surgeries thereafter, she took follow-up treatments on different dates. She had disability to an extent of 20% to the whole body. She has to undergo another surgery to remove implants and may have to spend Rs.50,000/-.

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Considering the nature of work as a Secretary as well as milk vendor, the disability assessed by the CW-1 is physical disability and not functional disability. Considering the facts of the case, the functional disability of the claimant is taken as 10% to the whole body. Claimant was aged 33 years, therefore, suitable multiplier applicable is '16' . On the basis of the same, the amount of compensation towards loss of future earning capacity due to permanent disability is to be calculated.

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HC-KAR

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Looking to the injuries and treatment taken at least for a period of two to three months she might not be in a position to attend her work and lost earnings during laid-up period, which needs to be compensated. Considering these

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facts, the claimant is entitled to following compensation.

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Sl.No	Heads	Amount
1.	Pain and suffering	Rs.30,000/-
2.	Medical expenses	Rs.88,183/-
3.	Loss of income during laid up period(6,500/- X 3)	Rs.19,500/-
4.	Loss of future earning capacity due to permanent disability (6,500/- X 12 X 16 X 10%)	Rs.1,24,800/-
5.	Attendant, special diet and conveyance charges	Rs.30,000/-
6.	Loss of amenities	Rs.30,000/-
7.	Future medical expenses	Rs.50,000/-
	Total	Rs.3,72,483/-
Less:
(a)	Amount awarded by the Tribunal	Rs.1,75,500/-
(b)	Amountpaid to the claimant	Rs.15,000/-
	Enhanced Compensation	Rs.1,81,983/-
	Rounded off	Rs.1,82,000/-

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Claimant is entitled to enhanced compensation of Rs.1,82,000/- with interest at the rate of 6% per annum on the said amount from the date of petition till its realization.

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The appeal was filed after delay of 669 days and while allowing the said application, this Court ordered that in

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HC-KAR

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the event of enhancement of compensation, the claimant is not entitled for the interest on the delayed period.

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Undisputedly, respondent No.1 was the owner and respondent No.2 was the Insurer of the offending vehicle; both are jointly and severally liable to pay the compensation.

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For the aforesaid reasons, I answer point for consideration partly in the affirmative and proceed to pass the following:

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ORDER

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i) The appeal is partly allowed .

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ii) The impugned judgment and award dated 15.04.2013, passed by the Senior Civil Jude and MACT, at Malavalli, in MVC No.2/2011 stands modified.

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iii) The claimant is entitled to enhancement of Rs.1,82,000/- with interest at the rate of 6% per annum from the date of petition till its realization.

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