P R Lakshminarayana Vs Hasan Sebath

P.R. LAKSHMINARAYANA, S/O P RAMADA, AGED ABOUT 53 YEARS, R/O LAKSHMIDAS LODGE, B.M. ROAD, SAKALESHPURA TOWN, PRESENTLY RESIDING AT C/O ANATHAPADMANABHA UDUPA, HOUSE NO.280, SKANDASHRI NILAYA, KALPATHARU ROAD, THANNERUHALLA, HASSAN - 573 201.

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…APPELLANT

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(BY SRI. SHARADAMBA A.R, ADVOCATE)

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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AND:

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HASAN SEBATH , S/O KASHEEM, MAJOR, ANEMAHAL VILLAGE AND POST, HIRIKALALE POST, SAKALESHAPURA TALUK, HASSAN DISTRICT.

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THE MANAGER, CHOLAMANDALAM GENERAL INSURANCE CO. LTD., UNIT NO.4, 9^TH FLOOR, GOLDEN HEIGHT COMPLEX,

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HC-KAR

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59 'C' CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR 4TH BLOCK, BENGALURU - 560 010.

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…RESPONDENTS

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(BY SRI. H.S. LINGARAJ, ADVOCATE FOR R2; VIDE ORDER DATED 01.08.2024, 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 23.7.18 PASSED IN MVC NO.913/17 ON THE FILE OF THE II ADDITIONAL DISTRICT & SESSIONS JUDGE & ADDITIONAL MACT, HASSAN, 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:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is field by the claimant under Section 173(1) of the Motor Vehicles Act, 1988¹ , challenging the judgment and award dated 23.07.2018 passed in MVC.No.913/2017 by the II Additional District and Sessions Judge and Additional Motor Vehicles Accident

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1 Hereinafter referred as to ‘Act’

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HC-KAR

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Claims Tribunal, Hassan² seeking for enhancement of compensation. The Tribunal by its judgment and award dated 23.07.2018 partly allowed the claim petition and awarded a compensation of `5,35,000/- together with interest at 6% per annum and held that respondent Nos.1 and 2 were jointly and severally liable to pay the compensation awarded. Respondent No.2 – insurer was directed to deposit the compensation awarded. Being aggrieved the present appeal is filed seeking for enhancement of compensation.

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The finding of the Tribunal on negligence and liability are not under challenge and have attained finality. Hence, the only aspect required to be adjudicated in the present appeal is with regard to the enhancement of the quantum of compensation.

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Heard submissions of learned counsel Smt.

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Sharadamba A.R. appearing for the appellant/claimant and

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2 Hereinafter referred as to ‘Tribunal’

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HC-KAR

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learned counsel Sri. H.S. Lingaraj appearing for respondent No.2/Insurer.

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It is the contention of learned counsel for the appellant that the disability assessed by the Tribunal is on the lower side and that the compensation awarded on other heads is on the lower side. Hence, she seeks for enhancement of compensation.

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Per contra , learned counsel for respondent No.2 – insurer justifies the compensation awarded by the Tribunal and contends that the income assessed by the Tribunal is on the higher side and in view of the same, the total compensation awarded by the Tribunal is just and proper.

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The submissions of both the learned counsels have been considered and the material on record, including the records of the Tribunal, have been perused.

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HC-KAR

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The claimant was aged about 51 years as on

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the date of accident i.e., as on 19.05.2016. Hence, the Tribunal has applied the appropriate multiplier as 11.

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The claimant was stated to have been carrying business of hotel and lodging and earning a sum of 1,28,334/- per month. The claimant has produced the relevant documents to show his income. The Tribunal upon appreciating the same, has assessed the monthly income of the claimant as 30,000/- per month which is just and proper.

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It is forthcoming from the wound certificate

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(Ex.P3) and the Discharge Summary (Ex.P13) that the claimant sustained fracture of the shaft of the right femur, fracture of the neck of the right femur, fracture of right tibia and right distal radius, fracture of the right 5^th metacarpal, 3^rd finger distal phalanx fracture, laceration over right foot and other injuries. The claimant was treated as an inpatient at Mangalore for a period of eleven

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days i.e., from 19.05.2016 to 30.05.2016. The doctor (CW1) has deposed regarding the injuries sustained and the treatment given as also the disability suffered. It is deposed that the claimant has sustained 15% disability to the right leg and 10% disability to the right hand. The same is also forthcoming from the disability certificate (Ex.C1). The Tribunal, after appreciating the oral and documentary evidence on record, has re-assessed the disability to the whole body at 8% which is just and proper.

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The Tribunal has noticed the medical bills (Ex.P15) and awarded a compensation of 1,07,309/-. The said compensation is contrary to material on record in as much as the inpatient bill dated 30.05.2016 (Ex.P15) is for a total sum to 1,89,267/-. The other bills (all marked as Ex.P15) would cumulatively demonstrate that the claimant has incurred a total medical expenses of 2,22,309/- which is rounded off as 2,23,000/-. Hence, it

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HC-KAR

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would be just and proper to award a total compensation of

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`2,23,000/- towards medical expenses.

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Having regard to the testimony of the doctor (CW1) as well as the certificate (Ex.C2), wherein it is stated that the future medical expenses would be 60,000/- to 70,000/- towards surgery for removal of implants, the Tribunal has awarded a sum of `30,000/towards 'future medical expenses', which is just and proper.

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Having regard to the aforementioned, the compensation is re-assessed as follows:

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i. Keeping in mind the nature of injuries sustained

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and the period of treatment, the compensation awarded towards pain and suffering is re-assessed as 60,000/-, as against 40,000/- awarded by the Tribunal;

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ii. The medical expenses is re-assessed as 2,23,000/- as against 1,07,309/- awarded by the Tribunal;

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iii. The compensation awarded by the Tribunal towards future medical expenses in a sum of 30,000/and towards loss of future earning capacity in a sum of 3,16,800/- is just and proper;

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iv. The laid up period of the claimant is reassessed as two months and compensation of 60,000/(30,000 x 2 months) is awarded towards 'loss of earning during laid up period' as against `20,850/- awarded by the Tribunal;

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v. It is noticed that the claimant is a resident of Sakaleshpura whereas he has taken treatment as an inpatient at Mangalore. The Tribunal has awarded a sum of 10,000/- towards conveyance charges and a sum of 10,000/- towards nourishment. It is just and proper that the said compensation be re-assessed and together with compensation towards 'food, nourishment, attendant charges as also the conveyance charges', the compensation is re-assessed as `40,000/-;

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vi. The Tribunal has not awarded any

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compensation towards 'loss of amenities'. Having regard to the nature of injuries sustained and the resultant disability, a sum of `25,000/- is awarded towards 'loss of amenities'.

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compensation re-assessed is as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Pain and suffering	40,000-00	60,000-00
2	Towards medical expenses	1,07,309-00	2,23,000-00
3	Towards loss of income during laid up period	20,850-00	60,000-00
4	Disability	3,16,800-00	3,16,800-00
5	Conveyance (`10,000/-<br>nourishment (`10000/-)	20000-00	40,000-00
6	Loss of amenities	-	25000-00
7	Towards future medical expenses	30000-00	30000-00
	Total	5,35,000-00	7,54,800-00

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HC-KAR

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Accordingly, the claimant is entitled to

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enhanced compensation of (7,54,800/- - 5,35,000/-) `2,19,800/-

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It is noticed that the Tribunal has awarded interest at 6% pa. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as re-assessed by this Court.

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Having regard to the Order dated 01.08.2024, the claimant is not entitled for interest for the delay period of 212 days in filing the appeal.

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In view of the aforementioned, 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 23.07.2018 passed in MVC.No.913/2017 by the II Additional District and Sessions Judge and Additional Motor Vehicles Accident Claims Tribunal, Hassan, is hereby modified to the

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extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The appellant/claimant is entitled to an enhanced compensation of `2,19,800/- together with interest at 7% per annum from the date of the petition till its realization in addition to the compensation awarded by the Tribunal. The claimant is not entitled for interest for the delay period of 212 days in filing the appeal.

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