Rajendra Vs Jagannatha

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.07.2013 PASSED IN MVC NO.701/2006 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA) KUNDAPURA. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 10204/2013

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE: VISHNU PRAKASH, II FLOOR, COURT ROAD, UDUPI.

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...APPELLANT

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(BY SRI. HARINI SHIVANANDA, ADVOCATE)

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AND:

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RAJENDRA (26 YEARS), S/O GANAPA DEVADIGA, R/O KALYANASWAMY ROAD, KUNDAPURA KASABA, KUNDAPURA TALUK - 576 201.

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JAGANNATHA, S/O NARAYANA MOGAVEERA,

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AGED ABOUT 33 YEARS, R/O HOSABETTU MANE, VODERHOBLI VILLAGE, KUNDAPURA TALUK - 576 201.

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...RESPONDENTS

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(R1 AND R2 ARE SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.7.2013 PASSED IN MVC NO.701/2006 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE, ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA, AWARDING A COMPENSATION OF RS.26,250/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL PAYMENT.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS

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DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA

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ORAL JUDGMENT

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Heard Sri. Mahesh Kiran Shetty.S, learned counsel

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for the appellant in MFA No.5095/2014 as well as Smt. Harini Shivananda, learned counsel for the appellant in MFA No.10204/2013. Smt. Harini Shivananda, also

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made her submission in MFA No.5095/2014 representing

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Sri. C.Shankar Reddy, learned counsel on record for respondent No.2.

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These two appeals are the out come of the order that is rendered by the Additional Motor Accident Claims Tribunal, Udupi (sitting at Kundapura) in M.V.C. No.701/2006 dated 29.07.2013. While MFA No.10204/2013 is filed by the Insurance Company disputing its liability to pay compensation, MFA No.5095/2014 is filed by the claimant seeking enhancement of compensation.

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For the sake of convenience of discussion, the parties to the proceedings will hereinafter be referred to as the claimant and the Insurance Company.

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The matrix of the case as projected by the claimant before the Tribunal through his pleadings is that on 26.08.2005 while he was proceeding from Kundapura Shastri Park side towards Old Bus stand side on his bicycle very slowly and steadly by observing all traffic rules and when he reached near Vinaya Hospital, Kundapura, an

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Auto Rickshaw bearing registration No.KA-20-8429 which was driven by its driver at a high speed and in a rash and negligent manner, dashed against the back side of another Auto Rickshaw bearing registration No KA-30-M-42. On account of that, the Auto Rickshaw bearing registration No.KA-30-M-42 hit his bicycle, due to which he fell down and sustained injuries.

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The version of the Insurance Company is that it issued policy in respect of the vehicle bearing registration No. KA-20-8429. However, the accident did not occur due to the rash and negligent driving of the driver of the said vehicle but due to the negligence on part of the driver of the Auto bearing registration No.KA-30-M-42.

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The claimant examined himself as PW-1 and narrated the manner of happening of accident. He also produced sufficient proof in the form of Ex.P-1-FIR, Ex.P-2-copy of Complaint, Ex.P-3 Spot Mahazar and Ex.P-6-Charge Sheet to establish that the accident occurred due to the rash and negligent driving of the

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driver of the Auto bearing registration No.KA-20-8429. But the Insurance Company failed in its attempt to establish that the accident occurred due to the rash and negligent driving of the driver of the Auto rickshaw bearing registration No.KA-30-M-42. Learned counsel for the Insurance Company failed in her attempt to convince this Court that she has got valid grounds basing on which the liability of the Insurance Company to pay compensation can be interfered with. Therefore, this Court is of the view that the appeal filed by the Insurance Company i.e., MFA No.10204/2013 deserves dismissal.

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Coming to the version of the claimant seeking enhancement of compensation, learned counsel for the claimant contends that the claimant sustained grievous injuries in the road traffic accident and became disabled. However, the Tribunal did not award any sum as compensation under the head loss of future earnings. Learned counsel also states that the tribunal granted a sum of Rs.3,000/- only under the head loss of income

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during laid up period which is unjustifiable. Learned counsel also submits that the compensation that is granted by the tribunal under all other heads is also on lower side. Learned counsel thereby seeks for enhancement of compensation.

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The Tribunal through the impugned order awarded

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a sum of Rs.26,250/- as compensation divided under following heads:-

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Heads	Amount in Rs.
Pain and suffering	8,000-00
Medical expenses	5,250-00
Loss of income during	3,000-00
treatment period
Discomfort and loss of amenities	5,000-00
Conveyance, attendant charges and nourishing food	5,000-00
Total	26,250-00

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The claimant by all the evidence produced,

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succeeded in establishing that he sustained three simple injuries that is laceration on forehead, laceration on mandible and laceration on upper and lower lips. The

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claimant also succeeded in establishing that he sustained grievous injury that is a head injury with defuse cerebral oedima. He also established that he took treatment as inpatient for a period of six days.

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As per the version of the claimant as a Mason he was earning Rs.4,000/- per month by the date of accident. Thought the claimant failed to produce sufficient proof to that effect, yet this Court is of the view that for the relevant period, the notional income can be taken as Rs.4,000/- per month.

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Having considered the nature of injuries sustained, this Court is of the view that the claimant would have taken bed rest atleast for a period of two months. The Tribunal did not award justifiable sum as compensation either under the head pain and suffering or under the head loss of income during treatment period. Therefore, considering the totality of the evidence produce, this Court is of the view that the compensation granted by the tribunal can be enhanced by Rs.20,000/-.

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Therefore, both the appeals are disposed of with the following:-

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ORDER

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i. MFA No.10204/2013 is Dismissed without costs.

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ii. MFA No.5095/2014 is Allowed in part.

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iii. The compensation that is granted by the Additional Motor Accident Claims Tribunal, Udupi (sitting at Kundapura) through orders in M.V.C. No.701/2006 dated 29.07.2013 is enhanced by Rs.20,000/(Rupees Twenty Thousand only)

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