Somashekhara Vs Parashurama Reddy

PARASHURAMA REDDY, AGED ABOUT 40 YEARS, S/O MALLAPPA REDDY, BALLUR VILLAGE, DAVANAGERE TALUK & DISTRICT-577 001, (OWNER & DRIVER OF MOTORCYCLE, BEARING REGN.NO.KA-17/EC-1136).

¶16

THE GENERAL MANAGER, NEW INDIA INSURANCE CO.LTD 160-1, NARASARAJA ROAD, DAVANAGERE - 577 001.

¶17

…RESPONDENTS (BY SRI. A N KRISHNA SWAMY., ADV FOR R2; V/O DATED 14.01.2016, NOTICE TO R1 IS DISPENSED WITH)

¶18

2 - NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶19

HC-KAR

¶20

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.11.2013 PASSED IN MVC NO.136/2012 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & VI ADDITIONAL MACT, AT DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶21

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶22

CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

¶23

ORAL JUDGMENT

¶24

This is claimant's appeal against judgment and award

¶25

dated 28.11.2013 passed by the learned II Additional Senior Civil Judge and VI Additional MACT, at Davangere, (hereinafter referred to as 'the Tribunal' for short) in MVC No.136/2012.

¶26

For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

¶27

Brief facts of the case are that on 14.06.2011 at

¶28

about 10.00 p.m., claimant met with an accident due to rash and negligent riding of the Motorcycle bearing Reg.No.KA-17-EC-1136 by its rider. As a result he sustained grievous injuries. He took treatment at SSIMS

¶29

3 - NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶30

HC-KAR

¶31

Hospital, at Davanagere, and spent Rs.1,25,000/- towards medical expenses. He was aged about 38 years at the time of accident and earning Rs.35,000/- p.m., from agriculture and commission agent. He has been suffering from permanent disability. With these reasons, he prayed to award compensation of Rs.11,05,000/-.

¶32

Respondent Nos.1 and 2 have appeared before the Tribunal and filed written statement denying the contentions of the claimant. Respondent No.1 further contended that the vehicle was insured with respondent No.2 and in the event claim petition is allowed, respondent No.2 is liable to pay the compensation. Respondent No.2 denied its liability to pay the compensation. With these reasons, both respondents have prayed for dismissal of the claim petition.

¶33

From the rival contentions of the parties, the

¶34

Tribunal framed the necessary issues for its determination.

¶35

4 - NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶36

HC-KAR

¶37

The claimant to prove his case examined 4

¶38

witnesses as PWs.1 to 4 and got marked 122 documents as Exs.P.1 to P.122. Respondents examined 2 witnesses as RWs.1 and 2 and got marked 6 documents as Exs.R.1

¶39

to R.6.

¶40

The Tribunal after hearing the arguments and appreciating pleading and evidence available on record, held that accident had taken place due to rash and negligent riding of the motorcycle, by its rider. The tribunal has awarded the following amount of compensation.

¶41

Sl.No	Heads	Amount
1.	Pain and suffering	Rs.25,000/-.
2.	Loss of income during laid up period	Rs.20,000/-.
3.	Discomfort and loss of amenities in life	Rs.20,000/-
4.	Medical expenses	Rs.39,000/-
5.	Conveyance, attendant & extra nourishment food charges	Rs.15,000/-
	Total	Rs.1,19,000/-

¶42

5 -

¶43

NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶44

HC-KAR

¶45

Being dissatisfied by the said award claimant is

¶46

before this Court for enhancement of the compensation.

¶47

I have heard the arguments of both the sides.

¶48

The fact of the accident is not in dispute. The

¶49

findings of the Tribunal regarding the answer to issue No.1 is not challenged by respondents. Therefore, there is no need to reconsider the same.

¶50

According to the claim petition, age of the claimant at the time of accident was 38 years. Even in the medical records i.e., discharge summary and wound certificate his age is mentioned as 38 years. Therefore, age of the claimant is taken as 38 years. He contends that he was earning Rs.35,000/- p.m., and he has produced RTCs of the properties at Exs.P.10 to P.12. It is not the case of the claimant that after the incident, he sold the said property or he is not cultivating the said property. At the most, he may have to take services of coolies for cultivating the same. To that extent he might be suffering

¶51

6 - NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶52

HC-KAR

¶53

loss of income. He contends that he is a commission agent for agricultural products. But no records are produced to prove it. Therefore, notional income of the claimant has to be considered. Following the notional income chart prepared by the Karnataka State Legal Services Authority, the notional income of the claimant is taken as Rs.6,500/p.m.

¶54

PW.2 has issued a disability certificate. Admittedly, he had not treated the claimant and he had examined the claimant only for the purpose of assessment of disability. Even in his evidence, he has not stated that disability is given by him for the whole body or in respect of the particular limb. In addition to that, as per the discharge summary, the claimant had sustained facture of right tibia. PW-2 in his certificate mentioned the injury as "compound fracture of both the bones of right limb". It appears that on the said reasons, the Tribunal has not accepted his evidence.

¶55

7 - NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶56

HC-KAR

¶57

It is true that evidence of a treated doctor is

¶58

most reliable and that does not mean that disability certificate issued by non-treated doctor shall be brushed aside or totally ignored. According to the claimant, he was an agriculturist; fracture of tibia would definitely affect his earning capacity. In addition to that, considering the medical evidence as well as the evidence of PW-2, it could be considered that he is suffering from permanent functional disability to an extent of 10% to the whole body. The multiplier applicable to the case in hand is ‘15’, since the age of claimant is 38 years. On the basis of the said figures, loss of income due to permanent disability is assessed.

¶59

Learned counsel for the appellant submits that amount of compensation awarded under the other heads are on the lower side. Therefore, he prayed for enhancement of the same. Perusing the materials, his contention is tenable. For the above said discussion, the following amount of compensation is awarded.

¶60

8 - NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶61

HC-KAR

¶62

Sl.No	Heads	Amount
1.	Pain and suffering	Rs.25,000/-.
2.	Medical and incidental expenses	Rs.39,000/-.
3.	Loss of income during laid up period (6,500X3)	Rs.19,500/-
4.	Special diet, attendant charges and conveyance charges	Rs.20,000/-
5.	Loss of future income due to permanent disability (6,500X12X15X10%)	Rs.1,17,000/-
6.	Loss of amenities	Rs.25,000/-
	Total	Rs.2,45,500/-
	Amount awarded by Tribunal	Rs.1,19,000/-
En	hancement(2,45,500-1,19,000)	Rs.1,26,500/-
	Rounded off	Rs.1,27,000/-

¶63

The claimant is entitled to enhancement of Rs.1,27,000/-.

¶64

Undisputedly, respondent Nos.1 and 2 are the

¶65

owner and insurer of the offending vehicle. Therefore, both of them are jointly and severally liable to pay the said amount.

¶66

9 -

¶67

NC: 2025:KHC:19248 MFA No. 5387 of 2014

¶68

HC-KAR

¶69

The claimant is entitled for interest at the rate of 6% p.a., on the enhanced amount of compensation. For the above said discussions, I pass the following:

¶70

ORDER

¶71

i. The appeal is allowed in part.

¶72

ii. The impugned judgment and award dated 28.11.2013 passed by the II Additional Senior Civil Judge and VI Additional MACT, Davanagere, in MVC.No.136/2012 is modified;

¶73

(a) Claimant is entitled to enhancement of compensation of Rs.1,27,000/with interest at the rate of 6% p.a. on the enhanced amount of compensation from the date of petition till its realization, excluding delayed period of 129 days in filing the appeal.

¶74