Sri B Nandeesh Vs Sri B Byresh

SRI .B BYRESH S/O LATE BASAVARAJAPPA, AGED ABOUT 37 YEARS RESIDING OF HULLURU VILLAGE, CHITRADURGA TALUK, OWNER OF THE MOTOR CYCLE BEARING REG. NO. KA-16/S-323

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M/S. THE NEW INDIA ASSURANCE COMPANY LTD., REPRSENTED BY ITS BRANCH MANAGER, CHITRADURGA BRANCH OFFICE, VIJAYASHREE, DAVANAGERE ROAD, CHITRADURGA - 577 501.

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…RESPONDENTS (BY SRI.M.G. KANTHARAJAPPA, ADVOCATE FOR R1; SRI. RAVISHANKAR A, ADVOCATE FOR R2)

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2 - NC: 2025:KHC:37288-DB MFA No. 6904 of 2018

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF THE M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 08/05/2018, PASSED IN MVC NO.476/2016, ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT-IV, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE D K SINGH and

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HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T) Heard the learned counsel for the appellant and the respondent.

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The appeal is filed by the appellant-claimant seeking enhancement of compensation on the award passed by I Addl. Senior Civil Judge and Addl. MACT-IV, Chitradurga.

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For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

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HC-KAR

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The brief facts of the case of the claimant and the respondents are as under:

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The petitioner, a salesman working at Chitradurga town, on 09.12.2015 at about 5.30 p.m. was proceeding towards his village from Chitradurga as a pillion rider in motor cycle bearing No.KA-16/S-323 belonging to Respondent No.1. When the vehicle reached Siddapura village, near Jalekatte Sulekere water junction due to rash and negligent high speed riding the vehicle got skid and caused accident. Immediately the petitioner was shifted to hospital and was treated as inpatient and had undergone surgery and had spent Rs.15,00,000/- towards medical and other expenses. Due to the accident the petitioner is unable to do the work of salesman and also the agricultural work. He is permanently disabled due to fractures sustained by him in the said accident.

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Learned counsel for the appellant-claimant vehemently contended that the Tribunal granted inadequate compensation. The claimant suffered three fractures and

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HC-KAR

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permanent physical disability of 37% in his left lower limb, 28% for his right lower limb, but the Tribunal considered permanent disability of 40% which is on lower side. The Tribunal awarded meager compensation under conventional heads and therefore the counsel prays to enhance the same.

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Learned counsel for Insurance Company supports the judgment passed by the Tribunal and contended that the Tribunal considering oral & documentary evidence on record has awarded just & reasonable compensation and no interference is called for by this court and prays for dismissal of the appeal filed by the claimant.

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Having heard the learned counsel for the parties and on perusal of the appeal papers including original records of the Tribunal, the following point would arise for our consideration in this appeal:

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Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?

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HC-KAR

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In order to prove the claim of the appellant, the appellant himself examined as PW1 and relied upon 16 documents and got marked as Ex.P1 to P16. As per Ex.P4-Wound Certificate, the claimant suffered injuries ie., (i) both legs were fractured and suggestive of fracture shaft femur and distal neurovascular defects of his right leg, (ii) sustained left leg deformity and lacerated wound 8X2 cm over left leg shin contamination present, (iii) left lacerated wound 10X2 cms. 2X2 cms over lateral aspect of left leg bone exposed, and (iv) fracture both bones distal 1/3^rd left leg, etc.

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As per Ex.P8-Disability Certificate and the opinion of PW-2 Dr.Ambarish and PW-3 Dr. Gowri Shankar, they have assessed the disability at 37% to his left lower limb and 28% to his right lower limb. The Tribunal considered the disability at 20%. It is fair and reasonable and the same is uncalled for.

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The Tribunal has granted a sum of Rs.15,000/- towards pain and suffering which is unreasonable and it calls for interference by this court. Considering the injuries sustained by the petitioner-claimant and the fact that the claimant sustained two

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HC-KAR

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fractures, he is entitled to Rs.60,000/- under the head 'Pain and suffering'.

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The Tribunal awarded a sum of Rs.6,91,966/- under the head 'Medical Expenses' which is fair and reasonable and no interference is called for.

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The Tribunal awarded a sum of Rs.30,000/- under the head 'Nourishment and Miscellaneous Expenses' and Rs.1,00,000/- under the head 'Loss of amenities, enjoyment of life and discomforts'. No interference is called for in this regard.

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The Tribunal has not awarded any compensation under the head 'Loss of income during laid up period'. The accident is of the year 2015. As per the chart issued by the Karnataka State Legal Services Authority, the notional income to be considered is at Rs.9,000/- per month for the year 2015. Hence considering the nature of injuries sustained by the claimant and considering the fact that he must have taken treatment and rest for a period of three months, we award a sum of Rs.27,000/- (ie.,Rs.9000X3) under the head 'Loss of income during laid up period'.

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HC-KAR

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So far as loss of future earnings is concerned, the Tribunal considered the notional income of the claimant at Rs.7,500/- and has awarded a sum of Rs.2,52,000/-, which is on lower side. Hence, the loss of future income is reassessed as under:

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Rs.9,000/- +25% future prospects X 12X14X20% disability = Rs.3,78,000/- as against Rs.2,52,000/- awarded by the Tribunal .

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Thus the claimant is entitled for the following modified

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compensation:

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HEADS	Rs.
Loss of future earnings	3,78,000.00
Medical expenses	6,91,966.00
Nourishment and Miscellaneous expenses	30,000.00
Pain,injuries and suffering	60,000.00
Loss of amenities, enjoyment of life and discomforts	1,00,000.00
Loss of income duringlaid up period	27,000.00
TOTAL	12,86,966.00
Less :Compensation awarded by the Tribunal	10,88,966.00
ENHANCED COMPENSATION	1,98,000.00

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HC-KAR

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Accordingly, we pass the following

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O R D E R

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i. M.F.A. No.6904 of 2018 is partly allowed .

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ii. The judgment and award dated 08.05.2018 passed in MVC No.476 of 2016 on the file of the I Additional Senior Civil Judge and Addl. MACTIV, Chitradurga, is modified to the extent stated hereinabove.

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iii. The claimant is entitled for enhanced compensation of Rs.1,98,000/- (Rupees * one lakh ninety eight thousand only).

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iv. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till its realization.

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v. The respondent shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of the judgment.

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