Lingaraju K @ Raju K Vs United India Ins Co. Ltd.

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.08.2018 PASSED IN MVC NO.4184/2017 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND XX ACMM AND MEMBER, MACT, BENGALURU, SCCH-24, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE D K SINGH & HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

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The present appeal has been filed under Section 173(1) of the Motor Vehicles Act, 1988, seeking to challenge Judgment and Award dated 31.08.2018 in MVC No.4184/2017 passed by the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate and Member, MACT, Bengaluru [Impugned Judgment].

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HC-KAR

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By the Impugned Judgment, the appellant-petitioner

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has been awarded a compensation of Rs.7,44,500/- along with interest at the rate of 8% p.a. The respondent No.1Insurance Company as well as respondent No.2-driver of the vehicle have been held jointly and severally liable to pay the amount awarded. The challenge in the present appeal has been made by the appellant-claimant seeking an enhancement of the amounts awarded.

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It is the case of the appellant that he was riding his Scooter on 15.12.2016 at about 7.30 a.m. when due to a mechanical defect, he stopped his motor cycle on the extreme left of the road. The driver of the Car bearing registration No.KA-51-B-8982 which was being driven in a rash and negligent manner hit the motor cycle which has resulted in grievous injuries to the appellant. The appellant was hospitalized for a period of 33 days from 15.12.2016 to 17.01.2017 and underwent several operations during such period. The appellant was also advised to take bed rest for a period of six months thereafter by the hospital.

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HC-KAR

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A case was registered against the owner of the vehicle

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under the provisions of Sections 279 and 338 of the IPC being Cr.No.203/2016. The learned Tribunal after examining the parties found that the accident was caused

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due to the rash and negligent driving of the respondent No.2, on account of which the appellant sustained following injuries:

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(i) Contusion over the back with anterior wedge Compressed fracture of L1 vertebral body;

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(ii) Contusion chest;

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(iii) Contusion of Right wrist.

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Learned counsel for the appellant submits that the appellant, prior to his accident, was working as a Security Supervisor, earning a sum of Rs.20,000/- per month and after the accident he has become 100% permanently disabled and is also unable to move. It is contended that the learned Tribunal should have taken the disability of the appellant as 100% in view of the physical condition of the

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HC-KAR

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appellant which is the result of the injuries suffered by him in the accident.

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5.1. It is further stated that the appellant has sustained

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paraparesis and bladder disturbances and needs an attendant 24/7 for the rest of his life. In addition, learned counsel submits that appellant even needs assistance to walk. Learned counsel submits that the award for the loss of income has been taken on the lower side as well as no award has been made for at least two attendants which are required by the appellant for his day-to-day living.

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Learned counsel for the respondent No.1-Insurance Company on the other hand has contended that the Impugned Award does not suffer from any infirmity and that the appellant has been awarded amounts for pain and sufferings, medical expenses as well as for loss of income during treatment period.

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The record reflects that the learned Tribunal has assessed the functional disability of the appellant at 45% and calculated loss of future income at Rs.7,000/- x 45%

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HC-KAR

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disability at Rs.3,150/per month. Thus, the

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compensation was calculated by the learned Tribunal at Rs.4,91,400/- (Rs.3,150/-x12x13) towards loss of future earnings. The learned Tribunal has awarded compensation

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under the following heads:

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Sl.No	Particulars	Amount (Rs.)
01	Pain and suffering	1,00,000/-
02	Food & Nourishment, conveyance & attendant charges during the treatment period and future treatment	1,00,000/-
03	Medical Expenses	11,106/-
04	Loss of income during the treatment period (Rs.7,000 x 6 months)	42,000/-
05	Loss of future earnings (Rs.3,150/-x12x13)	4,91,400/-
	Total	7,44,506/-

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It is not disputed that the appellant remained hospitalized for several months and is suffering from severe bladder disturbances as well as paraparesis resulting in 60% permanent disability as certified by the doctor.

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Concededly, the appellant is unable to control his bladder movement, and thus, it will be practically

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HC-KAR

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impossible for him to hold a job, much less go back to working as Security Supervisor. Given the condition of the appellant which is not disputed by the respondents and is borne from the record, the Impugned Award on functional disability cannot be sustained. The functional disability would thus be more accurately calculated as 100% functional disability.

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In these circumstances, it is thus apposite to modify the award and assess the loss of future earnings in the

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following terms:

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Functional Disability	100%
Income	Rs.7,000/-x 100%
	Rs.7,000/-x 12 x 13=
	Rs.10,92,000/-

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10.1. Thus, the compensation awarded by the learned

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Tribunal is re-assessed in the following manner:

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Sl.No.	Particulars	Amount (Rs.)
01	Pain and suffering	1,00,000/-
02	Loss of amenities	1,00,000/-
03	Food & Nourishment, conveyance & attendant charges during the treatment period and future treatment	1,00,000/-
04	Medical Expenses	11,106/-

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HC-KAR

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05	Loss of income during the treatment period (Rs.7,000/-x 6 months)	42,000/-
06	Loss of Future earnings (Rs.7,000/-x12x13)	10,92,000/-
	Total	14,45,106/-

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Hence, the appellant/claimant is entitled to total compensation of Rs.14,45,106/- along with interest at

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the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, the Court proceeds to pass the following directions:

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ORDER

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(i) The appeal is allowed-in-part .

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(ii) The impugned Judgment and Award dated 31.08.2018 in MVC No.4184/2017 passed by the

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XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate and Member, MACT, Bengaluru, is modified to the extent that the appellant/claimant is entitled to

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HC-KAR

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enhanced compensation of Rs.7,00,600/- along

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with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to Rs.7,44,506/- that has been awarded by the Tribunal.

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(iii) The remaining portion of the Impugned Award of the Tribunal remains undisturbed.

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(iv) The Insurance Company shall deposit the enhanced compensation with interest at 6% p.a. within a period of six weeks from the date of receipt of the judgment.

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