Mr Shiva Kumar B Vs Iffco Tokio General Insurance Co. Ltd.

IFFCO TOKIO GENERAL INSURANCE CO LTD., SHANTHI TOWERS, 5TH FLOOR, NO.141, 3RD MAIN, EAST OF NGEF LAYOUT, KASTURINAGAR, BENGALURU-560 043 BY ITS MANAGER

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MR DEVARAJU S D S/O DEVEGOWDA, (AGE NOT KNOWN TO THE APPELLANT) R/OF NO.63, SAGYA VILLAGE, HALASALLI POST, HALAGURU HOBLI,

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NC: 2025:KHC:30613 MFA No. 6970 of 2017

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HC-KAR

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MALAVALLI TALUK, MANDYA DISTRICT 571 401

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…RESPONDENTS

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(BY SRI.D VIJAYAKUMAR, ADVOCATE FOR R1,

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NOTICE TO R2 IS DISPENSED WITH V/O DATED 14.11.2017)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.02.2017 PASSED IN MVC NO.3602/2016 ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU CITY, SCCH-14, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND 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 P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 16^th February 2017, passed by the XVI Additional Judge and M.A.C.T., Court of Small Causes, Bengaluru, (for short `the Tribunal' ), in MVC No.3602/2016, seeking enhancement of compensation.

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HC-KAR

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For the sake of convenience, the parties are referred

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to as per their ranking before the Tribunal.

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Brief facts of the case are that, on 13.05.2016, at about 1.30 p.m., the claimant was going on his Motor Cycle bearing No.KA-05-HE-2416 near Sathanuru Police Station at Sathanuru Town, at that time, another Motor Cycle bearing Registration No.KA-11-EC-9351 came from behind and dashed against the petitioner's motor cycle, due to the impact, the petitioner fell down and sustained severe injuries to his left leg. Immediately he was shifted to Sathanuru Government Hospital for first aid and then shifted to Sanjay Gandhi Hospital, Bengaluru, for further treatment.

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The injured claimant filed claim application claiming compensation of Rs.20,00,000/- for the injuries sustained by him.

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HC-KAR

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From the rival contentions of the parties, the Tribunal

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framed necessary issues, for its determination.

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The claimant to prove his case examined three witnesses as PWs-1 to 3 and marked 11 documents, as per Exs.P-1 to P-11. Respondents did not examine any witness so also did not mark any documents.

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The Tribunal considering the evidence on record granted compensation of a sum of Rs.3,46,000/- with interest @ 9% from the date of petition till the date of payment, which is as follows :-

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Particulars	Amount in Rs.
Pain and sufferings	30,000/-
Medical expenses	25,000/-
Nourishment, conveyance and attendant charges	25,000/-
Loss of future income	1,64,000/-
Loss of amenities	25,000/-
Future medical expenses	12,000/-
Loss of income during laid up period	40,000/-

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HC-KAR

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Permanent disability	25,000/-
*Total*	*3,46,000/-*

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Being aggrieved by the said award passed by the Tribunal, the claimant has filed the present appeal for enhancement of compensation.

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8. Heard the arguments of the learned counsel appearing for the claimant as well as the respondent No.1/Insurer.

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9. Learned counsel for the appellant/claimant submits that the claimant had sustained fracture, implants were fixed, he was discharged on 27.05.2016 with an advise to follow up treatment for six months. The Doctor Assessed the disability at 19% to the whole body, movement of leg was restricted and there is shortening of leg by one Inch. It is further contended that the Tribunal has not granted sufficient amount under the head 'Pain and suffering and also under the head Nourishment, Conveyance and Attendant Charges.' He was under rest for more than six

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HC-KAR

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months. Therefore, loss of income during laid up period is to be enhanced. The amount granted under the head 'loss of amenities and future medical expenses' is also on the lower side, and therefore, requested for enhancement of compensation to Rs.14,50,000/-.

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10. Heard the arguments of learned counsel for both the parties.

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11. As per the evidence of PW.2 petitioner sustained fracture of shaft of left tibia in the accident. He underwent surgery with implant i.e., CRIF with IMIL Nailing in Sanjay Gandhi Hospital, Bangalore. He was an inpatient in the said hospital for 15 days from 13.05.2016 to 27.05.2026. Petitioner also produced Ex.P.6 and as per the said records, he was advised to take follow up treatment and rest till September 2016, and thus he was under follow-up treatment for four to five months. The Tribunal observed

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the total laid up period of the claimant/inured was five months, Medical bills are produced under Ex.P7 and P8 for

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HC-KAR

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an amount of Rs.24,260/-. Ex.P10 is the case sheet. Petitioner paid Rs.17,000/- towards hospital charges and the remaining amount was paid through Chief Minister's Relief Fund and thus he spent and amount of Rs.7,216/towards medical expenses. The whole body disability was assessed at 19%. The Tribunal has considered 30% disability to the left lower limb and has considered 1/3^rd of the same for assessment of the compensation.

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12. Learned counsel for the appellant mainly contended that the disability be taken at 19% instead of 10%, which is opposed by the learned counsel for the Insurance Company.

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13. Considering the nature of injuries sustained by the petitioner, this Court finds that the Tribunal has rightly considered 10% of the disability and it needs no interference. The injured was aged 28 years, he was working as a Plumber. As there is no evidence, regarding his income, the Tribunal has taken the notional income of

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HC-KAR

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the injured at Rs.8,000/- per month. But as per the guidelines of the Karnataka State Legal Services Authority, for the accidents that took place in the year 2016 the notional income is to be taken at Rs.9,500/- per month for the purpose of calculation. Thus the loss of future income

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comes to Rs.9,500 x 12 x 17 x 10% = 1,93,800/-. Conveyance and Attendant Charges needs to be enhanced to Rs.30,000/- instead of Rs.25,000/-. Loss of income during laid up period comes to Rs.47,500/- (Rs.9,500 x 5). This Court finds no reason to interfere with the amounts awarded under other heads.

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14. Learned counsel for the respondent/Insurance Company submits that amount of Rs.25,000/- was granted towards permanent disability and it is to be deleted. Therefore, the said amount of Rs.25,000/- be deleted.

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15. Accordingly, following amount of compensation is awarded:

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HC-KAR

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Particulars	Amount in Rs.
Pain and sufferings	30,000/-
Medical expenses	25,000/-
Special diet, conveyance and attendant charges	30,000/-
Loss of income during laid up period	47,500/-
(Rs.9,500/- x 5)
Loss of future earning capacity due to disability	1,93,800/-
(Rs.9,500/- x 12 x 17x 10%)
Loss of amenities and unhappiness	25,000/-
Future medical expenses	12,000/-
Total	3,63,300/-
Amount awarded by the Tribunal Enhancement	3,46,000/- 17,300/-

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In the result, I proceed to pass the following:

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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 16.02.2017 , passed in MVC.No.3602/2016, by the XVI Additional Judge and M.A.C.T., Court of Small Causes, Bengaluru, stands modified.

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iii) The claimant is entitled for enhanced compensation of Rs.17,300/-, with interest at the rate of 9% p.a. on the enhanced amount, from the date of petition till its realization.

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