H Krishna Vs Sathish Kumar Hegde

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05/07/2016 PASSED IN MVC NO.524/2014 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND

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MACT, UDUPI (SITTING AT KUNDAPURA) PARTLY ALLOWING THE CLAIM PETITION SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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“Whether the compensation awarded to the claimant under the impugned award is just?” is the question involved in this case.

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Appellant was claimant, respondent Nos.1 and 2 were respondent Nos.1 and 2 in MVC No.524/2014 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 18.06.2014 at 10:45 a.m when claimant was riding motorcycle bearing registration No.K.A-20-R-2996 near Haladi bypass Koteshwar village (NH-66) within the limits of Kundapura Traffic Police Station, tipper lorry bearing registration No.KA-20-B-7229 hit the motorcycle of the claimant from the hind side and caused the accident. In the

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accident claimant suffered grievous injuries. He was treated in N.R Acharya Memorial hospital, Koteshwar.

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At the time of accident, respondent Nos.1 and 2 were the registered owner and Insurer of tipper lorry bearing registration No.KA-20-B-7229 respectively. On the basis of the complaint filed by claimant, Kundapura Traffic Police registered FIR in Crime No.79/2014 of their police station against the driver of the lorry. On investigation, chargesheet was filed against the driver of the said lorry.

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Claimant filed MVC No.524/2014 against the respondents claiming compensation of Rs.20,00,000/- alleging that accident and consequential injuries to him occurred due to actionable negligence on the part of the driver of tipper lorry bearing registration No.KA-20-B-7229. He further contended that due to accidental injuries, he has suffered permanent physical disability and loss of his future earnings. He claimed that he was earning Rs.20,000/- per month as fisher man and coolie. He further claimed that he has incurred huge medical expenses and loss of amenities. Therefore, respondents are liable to compensate the said damages.

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Respondent No.1 did not contest the petition before the Tribunal. Respondent No.2 contested the petition denying occurrence of accident, actionable negligence on the part of the driver of tipper lorry, permanent physical disability of the claimant, his age, avocation and income. It further contended that its liability, if any is subject to the terms and condition of policy.

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In support of his claim, the claimant was examined as PW.1, Doctor who treated him was examined as PW.2 and Exs.P1 to P13 were marked. Respondents did not lead any oral evidence. However, on behalf of respondent No.2 copy of Election I.D card was marked at Ex.R.1.

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The Tribunal on hearing the parties by the impugned award held that accident occurred due to actionable negligence on the part of driver of tipper lorry bearing registration No.K.A-20-B-7229. PW.2-doctor deposed that permanent physical disability of claimant to his left lower limb is 42% and the Tribunal considered his permanent physical disability at 10% to the whole body. The Tribunal notionally assessed his income at Rs.6,000/- per month, applied 11 multiplier and awarded compensation of Rs.79,200/- towards

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loss of future earnings. The Tribunal in all awarded

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compensation of Rs.2,00,300/- on different heads as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Pain and suffering	40,000/-
2.	Loss of income during treatment period	15,000/-
3.	Medical expenses	46,100/-
4.	Loss of future earning capacity	79,200/-
5.	Loss of future amenities	10,000/-
6.	Attendant, nourishment and diet charges	10,000/-
	Total	2,00,300/-

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The Tribunal directed respondent No.2/Insurer to

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deposit the said amount with interest at 8% per annum from the date of petition till its realization. The respondents have not challenged the award on any grounds. Claimant has preferred the above appeal questioning adequacy of compensation awarded to him.

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Smt. Payal Dechamma C.V, learned Counsel appearing for Sri H Pavana Chandra Shetty, learned Counsel on record for appellant submits that permanent physical disability considered by the Tribunal is contrary to the medical evidence

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and notional income considered is also on the lower side. She further submits that the Tribunal ought to have awarded compensation for loss of income during the laid up period. She further submits that compensation awarded on the other heads is also on the lower side and the tribunal committed error in not awarding any compensation towards future medical expenses.

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Sri O Mahesh, learned Counsel for respondent No.2/insurer justifies the impugned award. He submits that 1/3^rd of disability spoken to particular limb has to be taken as permanent physical disability for the whole body. He submits that compensation awarded on the other heads is just one.

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Analysis:

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So far as age of the claimant, learned Counsel for claimant fairly concedes that claimant was aged 52 years as on the date of accident. As per the evidence of PW.2 and wound certificate-Ex.P3, claimant had suffered Compound fracture Type II left Tibia and left Fibula.

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The evidence of PWs.1 and 2 further shows that claimant was treated as inpatient in N.R Acharya Memorial Hospital, Koteshwar, Kundapura between 18.06.2014 to

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26.06.2014 and 10.10.2015 to 17.10.2015, totally for a period of 17 days. The evidence of PW.2 and discharge summary/Exs.P7 and P8 show that during claimant’s first time hospitalization, a surgery was conducted on him and an interlocking nail was fixed in his left lower limb. During his second time hospitalization, he was admitted with swelling and sepsis in his injured leg and was treated for the same. The evidence of PW.2 and Ex.P9/disability certificate show that there was 1 cm shortening of his left limb, therefore PW.2 assessed permanent disability of claimant to his left lower limb at 42%.

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The finding of the Tribunal that the claimant was working as fisher man is not challenged. Nature of injuries suffered by him, certainly would cause some difficulties for him in performing his work. Therefore, the Tribunal should have considered his permanent physical disability as 1/3^rd of 42%, which comes to 14% as against 10% assessed by the Tribunal. Considering the nature of work of the claimant and prevailing wage rates during 2014, notional income considered by the Tribunal is on the lower side. Reasonably that should have been considered at 8,500/- per month and applicable multiplier is 11.

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Therefore, compensation payable on the head of loss of future earnings would be (8500x12x11x14/100) =Rs.1,57,080/-.

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Considering the nature of injuries and period of hospitalization, the Tribunal should have awarded compensation towards loss of income during laid up period at least for four months. Having regard to the nature of injuries and other evidence on record, compensation awarded on the head of pain and suffering is also on the lower side. Reasonably that should have been awarded at Rs.55,000/-. Medical expenses was awarded based on the records produced. Therefore, that needs to be maintained. Compensation awarded on the head of diet, attendant charges and conveyance charges need to be enhanced to Rs.20,000/-.

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Considering the nature of injuries, period of treatment and evidence of PW.2, it can be concluded that claimant was not able to enjoy amenities like any other normal person at least for about four months. Therefore, awarding Rs.20,000/- on that head meets the ends of justice. Though PW.2 deposed that claimant requires Rs.25,000/- for removal of nail from left lower limb, the Tribunal has not considered the

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same. The same has to be awarded. Therefore, the just

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compensation payable is as follows:

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Particulars	Amount (Rs.)
Loss of future earnings	1,57,080/-
Loss of earning during laid	34,000/-
up period (8,500x4)
Pain and suffering	55,000/-
Medical expenses	46,100/-
Loss of amenities	20,000/-
Diet, attendant charges and	20,000/-
conveyance
Future medical expenses	25,000/-
Total	3,57,180/-
Awarded by Tribunal	2,00,300/-
Enhanced compensation	1,56,880/-
Rounded to	1,57,000/-