Nagendra Vs Sathish

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 16.02.2016 PASSED IN MVC NO.491/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T.

¶29

IN MFA NO. 3355/2016

¶30

BETWEEN:

¶31

UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, UDAYAVANI BUILDING, MANIPAL,

¶32

UDUPI TALUK AND DISTRICT - 576 104.

¶33

...APPELLANT

¶34

(BY SRI RAVISH BENNI, ADVOCATE)

¶35

AND:

¶36

MR. NAGENDRA, S/O SHANKAR SHEREGAR, AGE: 26 YEARS, R/O GUDDEMANI, ULLURU, KUNDAPURA VILLAGE, KUNDAPURA TALUK - 576 201.

¶37

MR. SATHIS, S/O NAGARAJ SHEREGAR,

¶38

3 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶39

HC-KAR

¶40

AGE: 32 YEARS, R/O DAPEDARMANE, KUNDAPURA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT - 576 101.

¶41

MR. GURURAJ, S/O CHANDRASHEKAR SHEREGAR, AGE: 24 YEARS, R/O DAPEDARMANE, KUNDAPURA VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT - 576 101.

¶42

...RESPONDENTS

¶43

(BY SMT.SWATI G.HEGDE, ADVOCATE FOR SRI PAVANA CHANDRA SHETTY H., ADVOCATE FOR R1; VIDE ORDER DATED 19.09.2024, NOTICE TO R2 AND R3 IS DISPENSED WITH)

¶44

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 16.02.2016 PASSED IN MVC NO.491/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDITIONAL M.A.C.T., KUNDAPURA,.

¶45

THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶46

CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

¶47

ORAL JUDGMENT

¶48

The above appeals are filed calling in question the

¶49

judgment and award dated 16.02.2016 in M.V.C.No.491/2013 by the Court of Senior Civil Judge and Additional MACT at

¶50

4 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶51

HC-KAR

¶52

Kundapura¹ . Hence, both the appeals are taken up together for consideration.

¶53

The parties herein are referred to as they are

¶54

referred before the Tribunal for the sake of convenience.

¶55

The relevant facts in a nutshell leading to the present appeals are that the claimant, claiming compensation for the injuries sustained in a road traffic accident, which occurred on 21.09.2012, filed a claim petition arraying the driver, owner and insurer of the offending Autorickshaw as Respondent Nos.1 to 3 respectively. The driver and owner of the Autorickshaw, i.e., Respondent Nos.1 & 2 remained exparte before the Tribunal. The third respondent/ Insurer contested the claim proceedings and filed statement of objections. The Tribunal by judgment and award dated 16.02.2016 partly allowed the claim petition and awarded compensation of Rs.5,44,850/- together with interest at 6% per annum. The Tribunal directed the respondents jointly and severally to pay the compensation award. Being aggrieved, the

¶56

1 for short, hereinafter referred to as the 'Tribunal'.

¶57

5 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶58

HC-KAR

¶59

claimants have preferred M.F.A.No.5554 of 2017 and the Insurer has preferred M.F.A.No.3355 of 2016.

¶60

Heard learned counsel Smt.Swati G.Hegde for Sri Pavan Chandra Shetty H., learned counsel appearing for the claimant and Sri Ravish Beeni, learned counsel appearing for the insurer.

¶61

The insurer has challenged the judgment and award of the Tribunal on the ground that the compensation awarded is excessive, whereas the claimant has filed the appeal seeking enhancement of the quantum of compensation.

¶62

The findings of the Tribunal on negligence and liability are not under challenge and have attained finality. Hence, the only aspect that is required to be considered in the present appeal is with regard to the quantum of compensation.

¶63

In the claim petition, it is averred that the claimant's age was 23 years as on the date of the accident i.e., on 21.09.2012. The Tribunal has recorded a finding that the age of the claimant is 24 years and applied the appropriate multiplier of '18', which is just and proper.

¶64

6 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶65

HC-KAR

¶66

At the time of the accident, the claimant was pursuing his third year of Electrical and Electronic Engineering at the Engineering College, Moodalkatte, as is forthcoming from the marks card, true copies of which have been marked as Exs.P11 to P19. The said Exs.P11 to P19 are copies of the marks card of third to eighth semesters of the Engineering course being pursued by the claimant.

¶67

It is forthcoming from the wound certificate (Ex.P4) and the disability certificate (Ex.P9) that the claimant sustained fracture distal humerus, comminuted intrarticular left hand, ulnar nerve injury and laceration on the face. The claimant was treated as an inpatient from 21.09.2012 to 28.09.2012, again from 17.11.2012 to 19.11.2012 for physiotherapy and again from 10.07.2014 to 13.07.2014 for removal of implants. He was treated as an outpatient on twenty occasions.

¶68

It is forthcoming from the testimony of the Doctor - PW.2 that the disability to the left upper limb of the claimant is 28%. Considering the same, the Tribunal has re-assessed the disability at 18%. It is the vehement contention of the learned counsel for the insurer that the

¶69

7 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶70

HC-KAR

¶71

disability has been assessed on the higher side, whereas the learned counsel for the claimant contends that the Tribunal was justified in assessing the disability at 18% to the whole body when the Doctor -PW.2 has deposed that there is 28% disability to the left upper limb, and that the Tribunal has recorded reasons for assessing the disability at 18%.

¶72

The Tribunal, while considering the aspect of disability, has noticed that the Doctor - PW.2 is an Orthopedic Surgeon. The Doctor - PW.2 has noticed that there is loss of extension of left elbow-terminal by 20 degrees; last 20 degree flexion not possible; rotations are painful; there is numbness of left 4^th and 5^th finger, ulnar nerve plasy and power is reduced by 20% to the left hand. It is further noticed by the Tribunal that during the course of cross-examination of the Doctor - PW.2, he stated that the claimant cannot lift weights and rotate his left hand. The Tribunal, noticing the same, has recorded a finding that the difficulties stated by the Doctor - PW.2 will definitely affect the earning capacity of the petitioner. Having regard to the aforementioned, it is just and proper that the whole body disability of the claimant be re-assessed as 15%.

¶73

8 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶74

HC-KAR

¶75

The Tribunal has assessed the notional income of the claimant at 8,000/- per month. It is relevant to note that the Division Bench of this Court in the case of **_The New India Assurance Co. LTD. v/s Sri. Maeesh Kumar and Others_**<sup>**_2_**</sup> **_,_** by relying upon the judgment of the Hon'ble Supreme Court in the case of **_Kandasami & Ors. v/s Lindabriyal & Anr.,_**<sup>**_3_**</sup> wherein the Hon'ble Supreme Court had assessed the income of an Engineering Graduate with respect to an accident that occurred on 28.09.2008 at 25,000/- per month, has assessed the income of an Engineering Graduate with respect to an accident that occurred on 13.02.2007 at 25,000/- per month. Hence, in the present case, the accident having occurred on 21.09.2012, it is just and proper that the income of the claimant be re-assessed as 25,000/- per month.

¶76

In view of the aforementioned, the compensation is re-assessed as follows:

¶77

i) Having regard to the nature of injuries sustained, it is just and proper that the compensation towards pain and

¶78

2 MFA No.9463/2015 and other connected appeals

¶79

3 Civil Appeal No.3125/2023 dated 24.04.2023.

¶80

9 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶81

HC-KAR

¶82

suffering be re-assessed as 40,000/- as against 75,000/awarded by the Tribunal;

¶83

ii) The Tribunal has noticed that the actual bills are produced for a sum of 53,814/-. Accordingly, the medical expenses is awarded in a sum of 55,000/-;

¶84

iii) Having regard to the nature of injuries sustained and the period of treatment, it is just and proper that the compensation towards food, nourishment, attendant and conveyance charges be re-assessed in a sum of `20,000/-;

¶85

iv) The Tribunal has assessed the laid up period as six months. It is forthcoming that the claimant has been pursuing his fifth semester of Engineering and has given his examination for the fifth semester in the month of January 2013 (Ex.P14), July 2013 (Ex.P15) and July 2014 (Ex.P16). Hence, it is clear that the accident has affected the education pursued by the claimant. In view of the same, loss of earnings during the laid up period assessed by the Tribunal as six months is just and proper. Accordingly, loss of earnings during the laid up period is

¶86

10 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶87

HC-KAR

¶88

re-assessed as (25,000/- x 6) 1,50,000/- as against `48,000/- awarded by the Tribunal;

¶89

v) Having regard to the nature of injuries sustained and

¶90

the resultant disability, it is just and proper that the compensation towards loss of amenities be re-assessed as 30,000/- as against 25,000/- awarded by the Tribunal;

¶91

vi) Loss of future earning capacity is re-assessed as (25,000/- x 12 x 18 x 15%) 8,10,000/- as against `3,11,040/- awarded by the Tribunal;

¶92

vii) Since the claimant was admitted from 10.07.2014 to 13.07.2014 for removal of implants, the future medical expenses of `10,000/- awarded by the Tribunal is set aside;

¶93

Accordingly, the total compensation under various

¶94

heads is re-assessed as follows:

¶95

Sl. No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Pain and sufferings	75,000-00	40,000-00
2	Medical expenses		55,000-00
3	Food and nourishment, attendant and conveyance charges	75,810-00	20,000-00

¶96

11 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶97

HC-KAR

¶98

4	Loss of earnings during the laid up period	48,000-00	1,50,000-00
5	Loss of future earning capacity	3,11,040-00	8,10,000-00
6	Loss of amenities	25,000-00	30,000-00
7	Future medical expenses	10,000-00	-
	TOTAL	5,44,850-00	11,05,000-00

¶99

Hence, the claimant is entitled for enhanced compensation of (11,05,000/- - 5,44,850/-) `5,60,150/-.

¶100

The Tribunal has recorded a finding that the claimant was negligent to the extent of 20% and that the insurer is liable to pay 80% of the compensation awarded. Hence, the insurer is liable to pay 80% of the amount re-assessed by this Court i.e., (5,60,150/x 80%) 4,48,120/-.

¶101

Accordingly, I pass the following:

¶102

ORDER

¶103

i) The appeals are disposed of ;

¶104

ii) The judgment and award dated 16.02.2016

¶105

passed in MVC.No.491/2013 by the Senior Civil Judge and Additional Motor Vehicle Accident Claims Tribunal at Kundapura, is modified to the

¶106

12 - NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶107

HC-KAR

¶108

extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered.

¶109

iii) The claimant is entitled for enhanced compensation of `4,48,120/- with interest at the rate of 6% per annum from the date of petition till its realisation in addition to the compensation awarded by the Tribunal;

¶110

iv) The amount deposited by the appellant-Insurer in MFA No.3355/2016 along with records be transmitted to the Tribunal for disbursement of the compensation in terms of the award.

¶111

v) The insurer (appellant in MFA No.3355/2016 and respondent No.3 in MFA No.5554/2017) before

¶112

the Tribunal shall pay the balance compensation together with accrued interest within a period of six weeks;

¶113

vi) Upon such deposit, the entire enhanced compensation with interest accrued thereupon be disbursed in terms of the judgment and award of the tribunal;

¶114

NC: 2025:KHC:24723 MFA No. 5554 of 2017 C/W MFA No. 3355 of 2016

¶115