Rathnakara Kulal Vs Shekar Kulal

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.06.2016 PASSED IN MVC NO.435/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the appellant/claimant under

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Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 18.06.2016 passed in MVC No.435/2014, by the Additional Senior Civil Judge and Additional M.A.C.T. at Udupi, for enhancing the compensation.

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Heard the arguments of the learned counsel for

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the appellant and learned counsel for respondentInsurance Company is absent. Notice to respondent No.1 is dispensed with.

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HC-KAR

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The petitioner/injured claimant had filed petition

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before the Tribunal for compensation of Rs.9,00,000/- for the injuries sustained by him. The Trial Court considering the entire evidence on record, granted an amount of Rs.2,30,619/- with interest at the rate of 8% p.a., from the date of petition till the date of realization. Aggrieved by the said order, this appeal is filed.

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Learned counsel for the appellant contended that the petitioner/injured had sustained three grievous injuries. The doctor has assessed the disability at 10% and the petitioner is still suffering from pain. On account of disability, the amount granted under the other heads is also on the lower side. Further, no amount has been granted towards future medical expenses, hence requested for enhancement of compensation.

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Learned counsel for the appellant further contended that the petitioner was aged 43 years at the time of accident and working as a Cooli, earning Rs.450/-

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NC: 2025:KHC:36968 MFA No. 6042 of 2016

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HC-KAR

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per day i.e., Rs.13,500/- per month (450 X 30). But he has not produced any income proof. The petitioner/injured sustained the following injuries as per Ex.P.6, which are grievous in nature:

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1. Fracture 6^th , 7^th , 8^th , 9^th , 10^th , 11^th , 12^th ribs (R) with haemothorax;

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2. Open fracture base of (L) thumb;

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3. Liver contusion .

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The petitioner/claimant has produced medical

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bills to an extent of Rs.1,00,619/-. The petitioner/claimant examined the doctor as PW.2 and filed the disability certificate under Ex.P.13. Ex.P.14 is the case sheet and Exs.P.10 and 11 are the medical certificates. PW.2, on examination, stated that the petitioner has weakness in the right shoulder abductors with painful limitation of external rotation. On overall assessment is having 10% of the partial disability in right upper limb. The disability certificate at Ex.P.13 marked through PW.2 in which the disability is assessed as 10%.

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HC-KAR

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Admittedly, the petitioner/injured was working as

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a coolie and had sustained several fractures to all the ribs, open fracture of the thumb and liver contusion. As he could not prove his income and he met with an accident on 13.02.2014, this Court finds it reasonable to take his notional income as Rs.8,500/- per month, as per the guidelines issued by the Karnataka State Legal Services Authority. He was aged 43 years at the time of accident and the multiplier is to be taken as '14'. Therefore, the loss of future income comes to Rs.1,42,800/- (Rs.8,500 x 12 x 14 x 10 %). The amount granted under the head 'medical expenses' of Rs.1,00,619/- is not disputed. This Court finds it reasonable to enhance the compensation under the head 'pain and suffering' to Rs.75,000/- and under the head 'loss of amenities' to Rs.40,000/-. The claimant might not have attended any work for at least a period of six months. Therefore, the 'loss of income during the laid-up period' comes to Rs.51,000/- (Rs.8,500 x 6). This Court also finds it reasonable to grant a sum of

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HC-KAR

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Rs.30,000/- towards 'extra nourishment, transport and attendant charges'.

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Thus in all, components awarded by this court

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are as below,

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Particulars	Amount in Rs.
Loss of future income	1,42,80.00
Medical bills	1,00,619.00
Pain and suffering	75,000.00
Loss of amenities	40,000.00
Loss of income during laid up period	51,000.00
Extra nourishment,	30,000.00
transport and attendant charges
Total	4,39,419.00

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It is stated that there was no transport

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endorsement and accordingly, the Tribunal fixed the liability against the owner of the vehicle by exonerating the insurance company, as per the citation referred in the

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HC-KAR

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case of ' Mukund Dewangan vs Oriental Ins.Co.Ltd¹ .

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This court, however, finds it reasonable to fix the liability against the insurance company. The insurance company is directed to deposit a sum of Rs. Rs.4,39,419

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Hence, the appellant-claimant is entitled for a total enhanced compensation of Rs.4,39,419/- along with interest at the rate of 8% p.a.

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In the result, the following order is passed:

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 18.06.2016 passed in MVC No.435/2014, by Additional Senior Civil Judge and Additional M.A.C.T. at Udupi, is modified;

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iii. The claimant is entitled to a sum of Rs. 4,39,419 /- along with interest at 8%

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1 2016 (4) SCC 298

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