Sri Nagaraj Vs Sri Ravichandran

(BY SRI. VIJAYA PHANEENDRA T. B., ADVOCATE FOR SRI. A. N. KRISHNA SWAMY FOR R2, ADVOCATE; VIDE ORDER DATED 06.03.2018, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 5.10.2015 PASSED IN MVC NO.174/2013 ON THE FILE OF THE COURT OF MACT AND I ADDITIONAL SENIOR CIVIL JUDGE, KOLAR AND ENHANCE THE COMPENSATION ALONG WITH COST AND INTEREST, IN THE INTEREST OF JUSTICE.

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THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the appellant under Section 173(1) of Motor Vehicles Act, 1988 challenging the common judgment and award dated 05.10.2015 passed in MVC No.174/2013, by the Motor Vehicles Accident Claims Tribunal and I Additional Senior Civil Judge at Kolar, for enhancing the compensation.

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Heard the arguments of learned counsel appearing for the appellant and respondent No.2. Notice to respondent No.1 is dispensed with vide order dated 06.03.2018.

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NC: 2025:KHC:35729 MFA No. 4758 of 2016

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HC-KAR

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The status of the parties before the Tribunal is retained for the sake of convenience.

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The injured claimant claimed compensation of Rs.25,00,000/before the Tribunal. The Tribunal

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considering the evidence on record granted Rs.6,10,000/with interest at the rate of 6% per annum. However, the Tribunal had held that there is 25% contributory negligence on the part of the petitioner. Aggrieved by the said judgment and award, this appeal is preferred, in which it is contended that the petitioner has sustained several injuries. PW-3 - Doctor clearly stated that he sustained 83.33% disability but the Tribunal erred in taking disability at 40%. The Tribunal has not granted any compensation under the head 'loss of amenities', 'attendant charges' and also 'loss of earnings during laid up period'. The compensation granted under the head 'pain and sufferings' is meagre. It is contended that petitioner did not do any job for two years i.e. from 25.12.2012 to 14.11.2014. The Tribunal has also erred in

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HC-KAR

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considering the contributory negligence at the rate of 25%

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on the part of the petitioner basing on the contents of the medical records. Hence, prays for enhancement of compensation.

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It is observed in the chief-examination of PWs-1 and 2 that PW-1/Nagaraj is a pillion rider and PW-2 is the rider of the motor cycle but in their cross-examination they stated that both of them are pillion riders. The learned counsel for the respondent No.2 argued that as per Ex.P.13(A) - Admission record, it was mentioned that patient was under the influence of alcohol. PW-1 was under the influence of alcohol and he was riding the motor cycle. As such, he lost consciousness because of influence of alcohol immediately after the accident and also due to the injuries sustained by him.

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The Tribunal considering the said argument observed that there is contributory negligence on the part of the petitioner and assessed the same to an extent of 25%. The manner of accident shows that the petitioner in

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HC-KAR

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both the cases were travelling on the motor cycle bearing Reg.No.KA-03-EX-3934 as a rider and pillion rider and they met with an accident due to negligence of the opposite vehicle. The charge sheet is filed against the rider of the opposite vehicle. Admittedly, as per the above evidence, one Gopalakrishna was rider of the motor cycle and there is inconsistency regarding the evidence of pillion riders. Considering the above facts, this Court finds it reasonable to fix up the contributory negligence of the petitioner as 10% instead of 25%. The contributory negligence on the petitioner is fixed at 10%.

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Petitioner met with an accident on 25.12.2012.

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He was working as a Tailor. It is stated that he was earning 15,000/- per month but he has not adduced any evidence to prove his income. As per the guidelines of the Karnataka State Legal Services Authority, income is to be taken at Rs.7,000/- per month. Petitioner examined PW-3

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Doctor and he has stated that the petitioner sustained traumatic brain injury i.e., left fronto temporal SDH, SAH

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HC-KAR

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with left maxillary sinus fracture and cervical spinal cord injury with quadriparisis. He was admitted to Neurosurgery stepdown unit where he was stabilized and later evaluated for cervical spine injury. MRI of cervical spine showed C3-

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C4 disc prolapsed with cord contusion for which he underwent C3-C4 anterior cervical discectomy and fusion using tricortial iliac bone grafting under general anesthesia on 28.12.2012. He has evaluated the petitioner on 10.02.2015 on OPD basis and accordingly accessed with the disability of motor system i.e., due to quadriparisis 75% and disability of sensory system at 50% i.e., hypoanesthesia in left upper limb and lower limb including

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hand and feet and bladder disability 75% i.e., occasional incontinence. Hence, the doctor assessed the disability of the petitioner at 83.33%. Ex.P.6 is the discharge summary and no treatment was given for C3-C4 disc collapse. Exs.P17 to P.19 are the MRI reports. As per Ex.P.19 there is much improvement in the condition of PW-1 after treatment and he was able to walk and stand

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HC-KAR

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for more than one hour. Therefore, the Tribunal

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considered disability at 40%. It was further observed that he was a Tailor and he can run the shop by engaging other Tailors and accordingly, functional disability was taken at

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40%. Admittedly, petitioner was a Tailor, he met with an accident and sustained grievous injuries. The doctor rightly assessed his disability at 83.33% and he cannot attend his job anymore. Therefore, considering the medical evidence, this Court finds it reasonable to take his disability as 83%. As the petitioner is aged about 40 years, his multiplier is taken at '15'. Hence, an amount of Rs.10,45,800/- (7,000 x 12 x 15 x 83%) is awarded under the head 'loss of future income due to disability'.

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Considering the fact that he was hospitalized for 23 days and later he took follow-up treatment for another 3 months, this Court finds it reasonable to grant an amount of Rs.50,000/- under the head 'pain and sufferings'. There is no dispute regarding medical expenses i.e., Rs.1,07,000/- and Rs.25,000/- is awarded

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HC-KAR

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under the head 'loss of amenities', Rs.30,000/- towards 'incidental charges' i.e., for transport, extra nourishment and attendant charges. Due to the injuries sustained in the accident, he might not have attended any other work

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atleast for a period of 6 months. Hence, towards ‘loss of income during laid up period', an amount of Rs.42,000/(7,000 x 6) is awarded.

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Thus in all, award of compensation passed by the Tribunal is modified as under:

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Particulars	Amount in Rs.
Loss of income due to	10,45,800.00
disability
Pain and suffering	50,000.00
Loss of amenities	25,000.00
Medical Expenses	1,07,000.00
Transport, extra	30,000.00
nourishment and attendant charges
Loss of income during laid up period	42,000.00
Total	12,99,800.00

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HC-KAR

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Hence, the compensation is enhanced from Rs.6,10,000/- to Rs.12,99,800/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit.

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In the result, the following order is passed:

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ORDER

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i. Appeal is allowed-in-part.

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ii. The judgment and award dated 05.10.2015 passed in M.V.C.No.174/2013 by the Motor Vehicles Accident Claims Tribunal and I Additional Senior Civil Judge, Kolar, is modified;

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iii. The appellant is entitled to a sum of Rs.12,99,800/- along with interest at the rate of 6% p.a. from the date of petition till the date of realization as against Rs.6,10,000/-.

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