Santhosh H P Vs Prakash

NO.1397/2017, ON THE FILE OF THE I-ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, 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 16^th April 2019, passed by the I Additional Senior Civil Judge and Chief Judicial Magistrate, Mandya, (for short `Tribunal'), in MVC No.1397/2017, 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 02.08.2017, at around 2.30 p.m., the claimant was traveling as a pillion rider on a motorcycle bearing registration No.KA-11/ED-9085 and his friend Sri. Ravishankar was riding the said vehicle. Both were going towards Bengaluru on Mysuru-Bengaluru road. When they were in front of Government Boys Collage Mandya, the driver of the offending car bearing registration No.KA-02/N-

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HC-KAR

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9467 drove his vehicle in a rash and negligent manner and hit the motorcycle. As a result, the claimant sustained grievous injuries. With these reasons, the claimant has prayed to award compensation.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the car bearing registration No.KA-02/N9467.

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Respondent No.2-insurer of the car (hereinafter referred to as the ‘offending vehicle’) contended that the accident occurred due to the negligence of the rider of the motorcycle. It denied the other averments made in the petition and prayed for dismissal of the petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant to prove his case examined one witness as PW-1 and marked 30 documents, as per Exs.P-1 to P-30. He also examined the doctor as CW-1 and marked Exs.C-1 to C-4. Respondents have not led any oral and documentary evidence.

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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 contributory negligence of rider of the motorcycle as well as driver of the car and apportioned the negligence in the ratio of 30:70 and accordingly awarded the following amount of compensation:

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Particulars	Amount in Rs.
Loss of disability	3,07,200/-
Medical expenses	5,238/-
Future medical expenses	20,000/-
Pain and suffering	20,000/-
Food and nourishment, traveling etc.,	20,000/-
Total	3,72,438/-

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9. Being aggrieved by the said award passed by the

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Tribunal, the claimant has filed the present appeal for enhancement of compensation.

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10. Heard the arguments of the learned counsel for the

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appellant as well as respondent No.2.

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11. Undisputedly, the owner and insurer of the

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motorcycle were not parties before the Tribunal. In the absence

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HC-KAR

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of necessary parties, the Tribunal considered negligence of rider of the motorcycle. However, in view of the law laid down by the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Company Limited and Others¹ , in the absence of necessary parties, the Court cannot assess the negligence of driver of the vehicle involved in the accident. Moreover, the victim of an accident is entitled to claim compensation from either of the joint tortfeasors. Therefore, the finding of the Tribunal that the accident took place due to negligence of rider of the motorcycle to an extent of 30% is erroneous and needs interference.

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Learned counsel for the appellant vehemently contends that the Tribunal has not considered the income of the claimant properly. According to petition averments, he was earning Rs.17,500/- per month by working as an office boy in HDFC life insurance, as well as agriculturist. Even if he was unable to prove his income, the Tribunal ought to have taken the notional income of the claimant on the basis of chart prepared by the Karnataka State Legal Services Authority. It is

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1 (2015) 9 SCC 273

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HC-KAR

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further contended that the compensation awarded under the head of pain and suffering is on the lower side and prayed to enhance the same.

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Learned counsel for respondent no. 2 seriously

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opposes the same.

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The Tribunal has taken the income of the claimant at Rs.8,000/- per month, assessed the disability at 20% to the whole body, applied multiplier of '16' and awarded a sum of Rs.3,07,200/- under the head loss of future earning capacity due to permanent disability. The notional income of the claimant, assessed by the Tribunal is on the lower side and hence requires enhancement. Since the accident occurred in the year 2017, the notional income as per the chart prepared by the Karnataka State Legal Services Authority can be taken as Rs.11,000/- per month. On the basis of the same, the compensation under the head loss of future earning capacity due to permanent disability requires recalculation. The compensation awarded under the heads 'pain and suffering' and 'food, nourishment and traveling charges' are on the lower side. Moreover, no compensation was awarded towards 'loss of

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HC-KAR

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income during laid up period'. Considering the same, the

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following amount of compensation is recalculated.

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Particulars	Amount in Rs.
Loss of future earning capacity due to permanent disability (11,000 X 12 X 16 X 20%)	4,22,400/-
Medical expenses	5,238/-
Future medical expenses	20,000/-
Pain and sufferings	40,000/-
Food, nourishment and traveling etc	30,000/-
Loss of income during laid up period (11,000 X 3)	33,000/-
Total	5,50,638/-
Amount awarded by the Tribunal	3,72,438/-
Enhancement-	*1,78,200/-*

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The claimant is entitled to interest at the rate of 6%

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per annum on the enhanced amount, from the date of petition till its realisation. Respondents are liable to pay the same.

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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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HC-KAR

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ii) The judgment and award dated 16^th April 2019, passed in MVC.No.1397/2017, by the I Additional Senior Civil Judge and Chief Judicial Magistrate, Mandya, stands modified.

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iii) The claimant is entitled to enhanced compensation of Rs.1,78,200/-, 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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iv) The remaining portion of the order is not disturbed.

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v) Draw award accordingly.

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Registry is directed to send back the records along with a

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copy of this judgment to the concerned Tribunal.

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Sd/(UMESH M ADIGA) JUDGE

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AMA