Mr. Venkatesha. D. K. Vs Mr. Fayaz Pasha

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.08.2019 PASSED IN MVC NO. 1371/2018 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND MACT, MYSURU, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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This appeal is by the appellant/claimant seeking enhancement of the compensation awarded vide judgment and award dated 19.08.2019, in MVC No.1371/2018, passed by the II Additional District Judge and MACT, Mysuru, (for short, 'the Tribunal').

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HC-KAR

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The date of accident, involvement of the

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vehicle, injuries sustained by the appellant and the liability to pay the compensation are not in dispute. The only dispute is about inadequate compensation.

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Heard Smt.B.N.Manjula, learned counsel for Sri Nagaraju R.C, learned counsel appearing for the appellant and Sri D.Vijaya Kumar, learned counsel appearing for respondent No.3-Insurance Company.

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Smt.B.N.Manjula, learned counsel appearing for the appellant taking this Court through the impugned judgment and award vehemently submitted that the Tribunal has committed serious error in taking the income of the appellant at Rs.9,000/- p.m., whereas the accident occurred in the year 2018 and submits that as per the chart prepared by the Karnataka State Legal Services Authority (for short 'KSLSA'), the income for the year 2018 is Rs.12,500/- p.m., in the absence of any proof of income for 'unskilled labourer'. In the present case, the appellant is a Mason and he has suffered fracture of malleolus of left

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HC-KAR

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leg. The Mason has to stand constantly while discharging

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his duty, hence the disability taken is on the lower side,

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and seeks for considering atleast 50% of the disability to the whole-body. As stated by PW2-Doctor, the disability

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to the particular limb is at 40% and seeks to award suitable compensation under the head 'loss of future earnings'. Further, the Tribunal has not awarded any compensation under the head 'loss of amenities' and sought to award, compensation under the said head and allow the appeal.

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Refuting the submission of learned counsel for

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the appellant, learned counsel appearing for respondent No.3-Insurance Company submitted that in the absence of any income proof, the Tribunal has properly considered

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the income at Rs.9,000/- p.m. and awarded appropriate compensation. Though the compensation under the head 'loss of amenities' is not awarded, the Tribunal has considered the same while awarding Rs.36,000/-, towards loss of earnings for the laid-up period, and awarded

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HC-KAR

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Rs.30,000/- towards pain and suffering and Rs.30,000/towards 'future medical expenses'. As such, the judgment and award passed by the Tribunal is proper and justified and it does not call for any interference of this Court and accordingly, sought to dismiss the appeal.

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Having heard the learned counsel appearing for

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the parties, perused the entire appeal papers as well as the trial Court record, the only point that arises for consideration is:

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“Whether the appellant has made out a case

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for enhancement?”

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My answer to the above point for consideration

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is ‘partly in the affirmative’ for the following reason:

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Admittedly, the accident has occurred on 08.05.2018 and as per the chart prepared by the KSLSA, the notional income fixed is at Rs.12,500/- p.m. Since the appellant was working as a Mason undisputedly, the disability suffered due to the fracture of injuries comes in his way of discharging his work, which requires constant standing.

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HC-KAR

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The injured was aged 42 years at the time of the accident

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and the appropriate multiplier as per the judgment of the Hon’ble Apex Court in the case of SARALA VERMA AND

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OTHERS VS. DELHI TRANSPORT CORPORATION AND

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ANOTHER¹ is ‘14’. Though, as per the contention, the disability could not be taken at the rate of 50% of the disability stated by PW2-Doctor to the particular limb to the whole-body, however, considering the facts and circumstances, if the disability is taken at the rate of 15% of the whole body, it would be appropriate and meet the ends of justice. In view of the income stated supra and on redetermination ‘ loss of future income’ works out to

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Rs.3,15,000/-(Rs.12,500 x 12 x 14 x 15%). Accordingly, the same is awarded.

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The appellant was an inpatient from 08.05.2018 to 10.05.2018 in view of the accidental injuries, he would

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have taken rest atleast a period of 3 months. Therefore, taking the income at Rs.12,500/- per month and

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1 2009 ACJ 1298

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HC-KAR

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calculating the laid up period for 3 months, the claimant is

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entitled for a sum of Rs.37,500/- (Rs.12,500 x 3 months), under the head ‘Loss of Earning During Laid Up Period’.

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9. Towards pain and sufferings Rs . 30,000 /- is

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awarded by the Tribunal is just and proper which is does not require any interference.

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Towards medical expenses Rs . 90,305/- is

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awarded by the Tribunal which is as per the medical bills is just and proper which is does not require any interference.

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Towards special diet, attendant charges, travelling and miscellaneous expenses Rs . 15,000/-

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is awarded by the Tribunal is also just and proper which is does not require any interference.

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Towards future medical expenses

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Rs . 30,000/- is awarded by the Tribunal which is just and

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proper which is does not require any interference.

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HC-KAR

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The Tribunal has not awarded compensation

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under the head ‘Loss of Amenities’. Hence, a sum of

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Rs.30,000/- is awarded under the said head.

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In summary, the total compensation redetermined by this Court under various heads is as follows:

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Sl.No.	Particulars	Amount in Rs.
1	Loss of future income (Rs.12,500 x 12 x 14 x 15%)	3,15,000-00
2	Loss of earnings / loss of income during laid up period (Rs.12,500 x 3)	37,500-00
3	Pain and sufferings	30,000-00
4	Medical expenses	90,305-00
5	Special diet, attendant charges, travelling and miscellaneous expenses	15,000-00
6	Future medical expenses	30,000-00
7	Loss of amenities	30,000-00
	Total	5,47,805-00

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HC-KAR

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The total compensation re-determined by this

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Court works out to Rs.5,47,805/- as against Rs.3,97,865/- awarded by the Tribunal. Hence, the appellant-claimant is entitled for an additional compensation of Rs.1,49,940/(Rs.5,47,805 – Rs.3,97,865) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. Respondent No.3-Insurance Company is directed to deposit the amount of total compensation within Six Weeks from the date of receipt of the certified copy of this judgment.

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For the following reasons, 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 passed by the II Additional District Judge and MACT, Mysuru dated 19.08.2019 in MVC.No.1371/2018 is hereby modified;

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HC-KAR

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iii. The appellant-claimant is entitled for an additional compensation of Rs.1,49,940/(Rs.5,47,805 – Rs.3,97,865) along with interest at 6% per annum from the date of filing of the petition till realization.

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iv. The enhanced compensation amount shall be deposited by the respondent No.3-Insurance Company, before the concerned Tribunal, within a period of Six Weeks from the date of receipt of a copy of this order.

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v. On deposit, entire compensation shall be released in favour of appellant on proper identification.

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vi. In the facts and circumstances, no order as to cost.

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Sd/(T.M.NADAF) JUDGE

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CH

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List No.: 1 Sl No.: 8 CT: BHK

Mr. Venkatesha. D. K. v. Mr. Fayaz Pasha

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Mr. Venkatesha. D. K. v. Mr. Fayaz Pasha

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