Sri Poovani Moolya Vs Imraspasha

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.7.2012 PASSED IN MVC NO.1464/2012 ON THE FILE OF THE II ADDL. DISTRICT JUDGE, MEMBER, MACT - III, D.K., MANGALORE 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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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 30^th July 2012, passed by the M.A.C.T., Dakshina Kannada, Mangaluru (for short

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`Tribunal'), in MVC No.1464/2009, seeking enhancement of 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 08.02.2009, at about 12.45 p.m., claimant boarded the KSRTC bus to go to Uppinangady and when the said bus reached near Sathikallu, a lorry bearing registration No.KA-44/381, came from opposite direction in high speed and in a rash and negligent manner and hit the bus. As a result of which, claimant sustained severe injuries to his right and left eye. He took treatment at S.D.M. Eye Hospital and Mangala Hospital. He lost his vision of right eye and his left eye vision is not normal. He has been suffering from permanent disability. With these reasons, claimant prayed for compensation.

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Before the Tribunal, respondent Nos.2 and 4 denied the contents of the claim petition. Respondent

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No.2-insurer contended that the accident had taken place

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due to negligence of driver of the bus and respondent No.4-KSRTC contended that the accident had taken place due to the negligence of driver of the lorry. Respondent No.2 denied its liability to pay the compensation due to violation of terms and conditions of the policy of one of the vehicle. With these reasons, prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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Claimant to prove his case got himself examined as PW-1 and examined the doctor as PW-2 and marked 9 documents from Exs.P-1 to P-9. Respondents have not led oral evidence, but, respondent No.2 marked one document as Ex.R-1.

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The Tribunal after hearing both parties and appreciating the evidence on record, held that the accident had taken place due to rash and negligent driving of the

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lorry by its driver. Tribunal accepted the contention of the

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claimant that he lost the vision of right eye and assessed permanent disability to whole body as 10% and awarded compensation as below:

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Pain and suffering	Rs.50,000/-
Loss of income during laid of period and attendant charges	Rs.5,000/-
Loss of future earnings	Rs.46,800/-
Loss of amenities and future unhappiness	Rs.40,000/-
Medical expenses	Rs.20,678/-
Total	Rs.1,62,478

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

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9. Learned counsel for the appellant submits that the Tribunal has awarded meagre amount of compensation on all the heads, except the medical expenses. Thus, he prayed for enhancement of the compensation.

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10. Learned counsel for respondent No.2-insurer contended that amount of compensation awarded by the Tribunal is just and reasonable and same does not call for any interference by this Court. Hence, prayed to dismiss the appeal with costs.

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11. Following questions arise for consideration :

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(ii) Whether the claimant is entitled for enhancement of compensation?

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(ii) What order?

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Point No.1 :

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12. It is an undisputed fact that accident had taken

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place due to negligence of driver of the lorry. Hence, there is no need to reconsider the same.

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13. It is also not in dispute that claimant had sustained injuries in the accident in question. The medical records, as well as evidence of PW-1 show that claimant is partially blind and he lost his vision of right eye due to the injuries sustained by him in the accident. His age was

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accepted as 50 years at the time of the accident by the Tribunal and it is not in dispute.

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14. The income of the claimant is taken as Rs.3,000/- per month by the Tribunal and it is seriously disputed by the claimant. Admittedly, there are no materials to accept the contention of the claimant that he was earning Rs.9,000/- per month working as mestry. Therefore, his notional income has to be determined. As per the chart prepared by the Karnataka State Legal Services Authority, the notional income of the victim of an accident of the year 2009 could be taken as Rs.5,000/per month. Same could be applied to the facts of the present case.

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15. The Tribunal has assessed the permanent disability suffered by the claimant to the whole body as 10%. Normally, when there are disabilities to the upper and lower limbs, 1/3^rd of the said disability will be considered as disability to the whole body. But, in case of

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loss of vision, the said disability would be considered as disability to the whole body. Therefore, the Tribunal should have accepted the permanent disability of the claimant as 30% to the whole body and assessed the compensation.

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16. Undisputedly, the multiplier applicable in this case is `13’ as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma -vs- Delhi Transport Corporation and others, reported in (2009) 6 SCC 121. On the basis of the same, loss of future earning capacity due to permanent disability is to be determined.

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17. Claimant was admitted as inpatient for about five days. Considering the contentions of the claimant, the amount of compensation awarded towards laid up period and attendant charges is on the lower side and needs to be enhanced.

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18. Accordingly, following compensation is awarded:

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Pain and suffering	Rs.50,000/-
Special diet, attendant and conveyance charges	Rs.20,000/-
Loss of income during laid up period	Rs.15,000/-
(Rs.5,000/- x 3)
Loss of future earning capacity due to permanent disability	Rs.2,34,000/-
(Rs.5,000/- x 12 x 13 x 30%)
Loss of amenities and future unhappiness	Rs.40,000/-
Medical expenses	Rs.20,678/-
Total	Rs.3,79,678/-

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Thus, claimant is entitled for enhanced compensation of Rs.2,17,200/(i.e.,Rs.3,79,678/-Rs.1,62,500/-=Rs.2,17,178/-, rounded off to

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Rs.2,17,200/-), along with interest at 6% p.a. on the enhanced amount from the date of petition till its realization. Accordingly, point No.1 is answered partly in the affirmative.

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Undisputedly, the respondent No.4 being the

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owner and respondent No.2 being the insurer are liable to pay the said amount.

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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^th July 2012, passed in MVC.No.1464/2009, by the M.A.C.T., Dakshina Kannada, Mangaluru, stands modified.

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iii) The claimant is entitled for enhanced compensation of Rs.2,17,200/-, along with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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

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vi) No order as to costs.

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