Mr Praviraj Shetty Vs Mr Darshan

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.07.2013 PASSED IN MVC NO.100/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, 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 MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 29^th July 2013, passed by the Senior Civil Judge and Addl.M.A.C.T., Kundapura, (for short `Tribunal'), in MVC No.100/2012, seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

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Brief facts of the case are that, on 12.09.2011, at about 1.30 p.m., the claimant was proceeding on the motorcycle bearing registration No.KA-20-X-6153 as a pillion rider. When they reached near the bridge at Koni village, Kundapura Taluk, the rider of the motorcycle rode the same in a rash and negligent manner and dashed

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HC-KAR

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against another motorcycle, as a result of which, claimant fell down and sustained fracture of right proximal humerous. He was a student at the time of the accident and was aged about 19 years. He had taken treatment at Chinmayi Hospital, Kundapura, wherein he had undergone surgery. He has been suffering from permanent disability affecting his earning capacity. With these reasons, the claimant has prayed for awarding of compensation.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the offending motorcycle. Respondent No.2 denied the contentions of the claimant. It also denied its liability to pay compensation and prayed

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to dismiss the claim petition.

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From the rival contentions of the parties, the

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Tribunal framed necessary issues, for its determination.

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The claimant to prove his case examined PW-1 and PW-2 and marked 20 documents, as per Exs.P-1 to P-20. Respondents have not led any evidence.

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4 -

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NC: 2025:KHC:20424 MFA No. 7377 of 2014

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HC-KAR

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The Tribunal after hearing both parties and

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appreciating the evidence on record, held that the accident had taken place due to rash and negligent riding of the motor cycle by its rider. It also held that claimant is entitled for following compensation from respondents No.1

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and 2.

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Particulars	Amount in Rs.
Pain and sufferings	35,000/-
Medical expenses	11,710/-
For disability	40,000/-
Loss of happiness and amenities	30,000/-
Total	1,16,710/-

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

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8. Heard the arguments of the learned counsel appearing for the claimant as well as the insurer.

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HC-KAR

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9. Learned counsel for the appellant/claimant

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submits that the claimant had sustained fractures and has

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spent substantial amount towards medical expenses. He has been suffering from permanent disability. The Tribunal has not awarded a just and reasonable amount of compensation on all the heads. It has not awarded compensation under the head `loss of future earning capacity due to permanent disability'. Therefore, prayed for enhancement of the compensation.

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10. Learned counsel for respondent No.2-insurer submitted that the Tribunal has properly considered the case of the claimant and awarded a just and reasonable compensation, which does not call for any interference by this Court and prayed for dismissal of the appeal.

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11. Following points arise for consideration :

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(ii) Whether the claimant is entitled for enhancement of compensation?

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(ii) What order?

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HC-KAR

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Point No.1 :

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12. Accident and injuries sustained by the claimant are not in dispute. The medical records produced by the claimant at Exs.P-4, P-18 and P-19 and the evidence of PW-2 doctor reveals that claimant sustained fracture of proximal humerous of right hand.

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13. PW-2 in his evidence stated that the claimant has suffered disability to an extent of 10% in right upper limb. The Tribunal though considered these facts in the impugned judgment and also assessed the permanent disability of the claimant to the whole body as 5%, but, did not award any amount as compensation under the head `loss of total earning capacity due to permanent disability'.

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14. The claimant was aged about 20 years at the time of accident. He was a student studying in II year B.E. His notional income has to be assessed, following the chart prepared by the Karnataka State Legal Services Authority, his notional income is taken as Rs.6,500/- per

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HC-KAR

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month. Suitable multiplier applicable is '18' as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma -vs- Delhi Transport Corporation and others, reported in (2009) 6 SCC 121. The Tribunal has assessed the permanent disability to the whole body as 5%. On the basis of the same, the amount of compensation towards loss of future earning capacity due to permanent disability is assessed.

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15. Considering the materials available on record,

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following compensation is awarded:

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Particulars	Amount in Rs.
Pain and sufferings	40,000/-
Medical expenses and incidental charges	17,000/-
Loss of future earning capacity due to disability	70,200/-
(Rs.6,500/- x 12 x 18x 5%)
Loss of amenities and unhappiness	40,000/-
Total	1,67,200/-
Amount awarded by the Tribunal	1,16,710/-
Enhancement-	50,490/-
Rounded off-	*51,000/-*

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HC-KAR

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Thus, the claimant is entitled for interest at 6% p.a. on the enhanced amount from the date of petition till

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its realization. Accordingly, point No.1 is answered partly in the affirmative.

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Undisputedly, the respondent No.1 being the

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owner and respondent No.2 being the insurer are liable to pay the said amount.

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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 29^th July 2013, passed in MVC.No.100/2012, by the Senior Civil Judge and Addl.M.A.C.T., Kundapura, stands modified.

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iii) The claimant is entitled for enhanced compensation of Rs.51,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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HC-KAR

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iv) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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v) The enhanced amount of compensation is meager, therefore, entire amount is ordered to be released in favour of the claimant on proper identification.

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vi) No order as to costs.

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vii) Draw award accordingly.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.

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Sd/(UMESH M ADIGA) JUDGE

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bk/

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List No.: 1 Sl No.: 28

Mr Praviraj Shetty v. Mr Darshan

Case brief

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Mr Praviraj Shetty v. Mr Darshan

Case brief

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