Sri Anand Kumar Vs Sri H P Lokesh

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.04.2021 PASSED IN MVC NO. 5479/2017 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND ACMM, MEMBER, MACT, BENGALURU (SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 4982/2021

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BETWEEN:

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M/S THE ORIENTAL INSURANCE COMPANY LIMITED, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE – 560 025. REPRESENTED BY ITS REGIONAL MANAGER.

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...APPELLANT

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(BY SRI. B.S.UMESH.,ADVOCATE)

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AND:

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SRI. ANAND KUMAR, S/O RAMACHANDRA PRASAD,

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HC-KAR

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AGED ABOUT 31 YEARS, R/AT NO.166, ASWATHAKATTE ROAD, MADANNA BUILDING, CHIKKALLASANDRA, BENGALURU – 560 061.

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H.P.LOKESH, S/O PUTTASWAMY, AGE MAJOR EXACT NOT KNOWN TO APPELLANT, R/AT NO.41, HONNALAGANA DODDI VILLAGE, MEDAMARANAHALLI POST, KANAKAPURA TALUK, RAMANAGARA DISTRICT - 562 112.

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...RESPONDENTS

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(BY SRI. K.V.NAIK, ADVOCATE FOR R1; SRI. SRIHARI A.V., ADVOCATE FOR R2)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 05.04.2021 PASSED IN MVC NO.5479/2017 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE, ACMM, MEMBER, MACT, BENGALURU, (SCCH5), AWARDING COMPENSATION OF RS.7,44,000/- WITH INTEREST AT 9 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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HC-KAR

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ORAL JUDGMENT

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Aggrieved by the award passed in M.V.C.No.5479/2017 dated 05.04.2021 on the file of VIII Additional Small causes Judge and ACMM, Member, MACT, Bengaluru (SCCH_5), both the claimant as well as the insurance company are before this Court. The claimant appeal is MFA No.5362/2022 and the Insurance Company appeal is MFA No.4892/2021.

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The claim petition is filed seeking compensation of an amount of Rs.15,00,000/- for the injuries sustained by the claimant in the road traffic accident.

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The facts of the case is that on 19.06.2017 at about 8.00 p.m. the petitioner was going in his Motor Bike from Nagegowdanapalya Main Road, near Thuralli Forest to Kanakapura Main Road by observing all traffic rules, when he reached near Thuralli Forest at that time a driver of the Indica Car driven by its driver in a rash and negligent manner at a high speed so as to endanger to human life, came and dashed to the petitioner's motor cycle. As a result of the forced impact, the petitioner sustained severe injuries.

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HC-KAR

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It is the case of the claimant that because of the injuries sustained by the claimant in the accident, he had sustained disability of 60% to the right lower limb and 20% to whole body. Considering the salary of the claimant at Rs.10,000/- and disability of 60% to the right lower limb and 20% to the whole body, the Tribunal had granted the compensation as per the table given below:

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	Heads		Co	mpensation Awarded
1.	Pain and Suffering	:	Rs.	80,000/-
2.	Loss of amenities	:	Rs.	25,000/-
3.	Medical Expenses	:	Rs.	3,14,000/-
4.	Incidental, conveyance, attended, nourishment food etc.	:	Rs.	25,000/-
5.	Loss of earning during laid up period	:	Rs.	30,000/-
6.	Loss of future earning	:	Rs.	2,45,000/-
7.	Marriage Prospects	:	Rs.	25,000/-
	TOTAL	:	Rs.	7,44,000/-

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The insurance company is before this court on three

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grounds; one is that as per the case of the complaint, initially the accident had taken place because of the involvement of a

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HC-KAR

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two wheeler, later it is mentioned as a four wheeler, as such, they deny the accident itself and involvement of the opposite vehicle. It is submitted that there is a negligence on part of the claimant. As the driver of the offending vehicle has consumed alcohol, the tribunal ought to have applied the principle of pay and recovery. The interest granted at 9% per annum needs to be reduced to 6% per annum. It is submitted that nothing is forthcoming to show that the claimant is not married, as such, he is not entitled for any amount.

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The learned counsel appearing for the claimant submits that the Tribunal had failed to grant a just and reasonable compensation for the injuries sustained by the claimant. It is submitted that he was there in the hospital for 108 days and the Tribunal under the head of nourishment, attendant charges had granted only an amount of Rs.25,000/-. The accident had taken place in the year 2017 and the Tribunal had taken the income at Rs.10,000/-, it ought have been taken at Rs.11,000/-. Under the heads of loss of amenities and loss of marriage prospects that is granted by the Tribunal is on the lower side. It is submitted that the Tribunal had taken the

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HC-KAR

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income at Rs.10,000/- and granted an amount of Rs.30,000/-. When the claimant was in hospital for a period of 108 days, Tribunal at least ought to have taken 7 months for the laid up period. It is also the contention that when the doctor has opined that the disability is 20%, Tribunal had taken the disability at 12% that is also on the lower side. It is submitted that the compensation needs to be enhanced.

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Having heard the counsels on either side, Perused the material on record. The first contention of the learned counsel appearing for the insurance company is that the said offending vehicle is not involved, as in the MLC register, it is mentioned that it is a road traffic accident met with a twowheeler. This court has perused the order wherein they have examined the doctor from the same hospital and it is his evidence that instead of mentioning it as a '4 wheeler' they have mentioned it as a '2 wheeler' and it is a mistake due to the workload, hence the contention of the insurance company has no legs to stand. With regard to the contributory negligence also, the submission is that basing on the width of the road, it is a head-on collision, if the claimant was careful,

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HC-KAR

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he could have avoided the accident, that submission also has no legs to stand and this court is not able to appreciate the said submission. The next submission is with regard to the driver of the opposite vehicle is in a drunken state and as such, principle of pay and recover will apply. This aspect was never raised before the Tribunal and no issues were framed before the Tribunal and for the first time, it is not open for the insurance company to raise such a issue before this court, even that aspect cannot be considered. Coming to the interest part, the Tribunal ought to have granted interest at 6% and in this case, 9% interest is granted, which needs to be reduced.

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Coming to the contentions of the learned counsel appearing for the claimant, as far as the pain and suffering is concerned, the Tribunal has rightly granted an amount of ₹ 80,000/- and no interference is called for. Towards the medical expenses , Tribunal has granted an amount of Rs.3,14,000/-, that also needs no interference. Coming to nourishment, transport and attendant charges , as he was there in the hospital for 108 days. Considering the same, this

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court is granting an amount of

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HC-KAR

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Rs.1,00,000/- . Then coming to the loss of earning during the laid up period , as the accident has occurred in the year 2017, this court is taking Rs.11,000/- and he was in hospital for nearly 4 months and another 3 months, totally 7 months it comes to an amount of Rs.77,000/ -. Then coming to the loss

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of future earning , the doctors has opined that the claimant had sustained 60% limb disability and 20% whole body disability, whereas the Tribunal had taken the disability at 12%. Learned counsel appearing for the petitioner submits that considering the age, the Tribunal ought to have taken the disability as stated by the doctor. Learned counsel appearing for the insurance company submits that when all the injuries are united, there is no basis for the court to take the disability at 20%. This court has perused the evidence of the Doctor. There is a shortening of leg by 3 cms, considering that, this court is inclined to take 15% as disability an amount of Rs. 3,36,600/- ( 11,000 x 12 x 17 x 15 / 100) is granted.

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Loss of amenities , considering the disability at 15%, this court is awarding an amount of Rs.30,000/-. Then loss of prospects of marriage, considering the age of the claimant and

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HC-KAR

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3 cms of shortening of the leg will have an impact. Hence this

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court is granting an amount of Rs.50,000/- .

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In the light of the law laid down by the Hon'ble

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Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER¹ , the claimant is entitled for an amount of

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Rs.10,000/- towards legal expenses .

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Altogether, the claimant is entitled for compensation of an

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amount of Rs.2,18,000/- .

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The claimant is therefore, entitled to the

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compensation under the following heads:

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	Heads		Co A	mpensation warded by Tribunal	Compensation Awarded by this Court
1.	Pain and Suffering	:	Rs.	80,000/-	80,000/-
2.	Loss of amenities	:	Rs.	25,000/-	30,000/-
3.	Medical Expenses	:	Rs.	3,14,000/-	3,14,000/-
4.	Incidental, conveyance, attended, nourishment food etc.	:	Rs.	25,000/-	1,00,000/-
5.	Loss of earning during laid up	:	Rs.	30,000/-	77,000/-

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1 (2014) 11 SCC 178

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HC-KAR

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	period
6.	Future Loss	:	Rs.	2,45,000/-	3,36,600/-
7.	Marriage Prospects	:	Rs.	25,000/-	50,000/-
8.	Legal expenses	:	Rs.	--	10,000/-
	TOTAL	:	Rs.	7,44,000/-	9,97,600/-
	Enhancement	:	Rs.	2,53,	600/-

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Accordingly, the appeal filed by the claimant in MFA No.5362/2022 is partly allowed by enhancing the compensation from an amount of Rs.7,44,000/to Rs.9,97,600/- and the appeal of the insurance company in MFA No.4892/2021 is partly allowed by reducing the interest from 9% to 6%.

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i) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.

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ii) Amount in deposit shall be forthwith transferred to the court below. On such deposit, the claimant is at liberty to withdraw the money.

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iii) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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