Vinod Vs the Manager

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 23.1.2013 PASSED IN MVC NO.1427/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-1, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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HC-KAR

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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 23^rd January 2013, passed by the Addl.District Judge and M.A.C.T., and Fast Track Court-I, Hassan, (for short `Tribunal'), in MVC

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No.1427/2012, 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, on12.07.2012, at about 9.00 a.m., claimant was travelling as a pillion rider on a motorcycle bearing registration No.KA-02-EU-9944 and one Mayegowda was riding the motorcycle in rash and negligent manner. Due to the same, at HeraguDoddapura road cross, the motorcycle was capsized; as a result of which, claimant sustained injuries. He lost vision

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of his right eye and suffered other facial injuries. He spent

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HC-KAR

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substantial amount towards medical expenses.

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For these reasons, the claimant prayed for enhancement of the compensation.

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Before the Tribunal, respondent No.2- the insurer denied the contents of the claim petition and it also denied its liability to pay compensation. On these reasons, the insurer prayed to dismiss the claim 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, got himself examined as PW-1 and examined two witnesses as PWs.2 and 3 and marked 11 documents as per Exs.P-1 to P-11. Respondents have not led any evidence.

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The Tribunal after hearing both parties and appreciating the evidence on record, held that the accident had taken place due to rash and negligent riding of the motorcycle by its rider. It also held that claimant is entitled for compensation from respondents No.1 and 2

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HC-KAR

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and awarded compensation under different heads as

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below:

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Pain and suffering	Rs.75,000/-
Loss of income during laid of period	Rs.3,000/-
Attendant charges	Rs.5,000/-
Food and nourishment	Rs.12,000/-
Medical expenses	Rs.60,000/-
Loss of future earning capacity due to permanent disability	Rs.1,30,000/-
Total	Rs.2,85,000/-

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Being dissatisfied by the compensation awarded by

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the Tribunal, the claimant has preferred present appeal for enhancement of the same.

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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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9. Learned counsel for the appellant/claimant

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submits that Tribunal has not considered the income of the claimant properly. Although the claimant sustained three fractures and loss of vision in the right eye, in addition to

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HC-KAR

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other injuries, he was not adequately compensated by the Tribunal. The Tribunal has assessed the permanent disability of the claimant at 15% despite examining the doctor, who treated him. The amount of compensation awarded under other heads was also on the lower side. Hence, prayed for enhancement of the compensation.

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10. Learned counsel for respondent No.1-insurer submitted that Tribunal has properly appreciated the evidence and awarded a just and reasonable amount of compensation, which does not call for any interference by this Court. In the alternative he submitted that, at the most, this Court may consider the contention of the appellant in respect of loss of vision in right eye and to reconsider the extent of permanent disability suffered by the claimant. With these reasons, it is prayed to pass suitable orders.

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HC-KAR

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11. Following points arises 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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Point No.1 :

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12. The fact of accident and injuries sustained by the claimant are not in dispute. Therefore, there is no need to reconsider the same. Claimant had sustained following

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injuries :

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(1) Fracture of right zygomatic complex involving front zygomatic, zygomatic buttress and infraorbital region (multiple communited), zygomatic maxillary suture region

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(2) Fracture of mandible involving right coronoid process,

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(3) Laceration over the right supra orbital and infra orbital region,

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(4) Distorted right globe with loss of vision.

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13. He had taken treatment at S.S.M. Hospital,

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Hassan. It is also not in dispute that loss of vision in right

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eye was due to the injuries sustained by him in the

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HC-KAR

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accident. PW-3 – doctor in his evidence has stated that claimant has lost his vision in the right eye due to the injuries sustained by him in the accident. PW-2 – doctor corroborates the evidence of PW-1 in respect of fractures and facial injuries suffered by the claimant. He has stated that claimant has suffered permanent disability to an extent of 25% due to the said injuries.

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14. Claimant is an agriculturalist and milk vendor, as per his contention. Fractures of facial bones may not lead to functional disability. Due to the same, he might have lost some of amenities, which shall be considered while assessing compensation under the head `loss of amenities’; but not to be considered under the head

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`loss of future earning capacity due to disability’.

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15. Considering the materials available on record, the amount of compensation awarded by the Tribunal needs to be reconsidered.

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HC-KAR

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16. It is the contention of the claimant that he was earning Rs.8,000/- per month by working as a coolie. However, there are no materials on record to support this claim. The Tribunal has assessed the notional income of the claimant as Rs.4,000/- per month, which appears to be on the lower side. If we consider the chart prepared by the Karnataka State Legal Services Authority, the notional income of the victim of an accident of the year 2009; is Rs.7,000/- per month. Same could be applied to the facts of the present case.

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17. Considering the evidence of PW-1, as well as PW-3, the permanent disability suffered by the claimant has to be considered as 30% to the whole body since he has lost vision in the right eye. On that basis, loss of future earning capacity due to permanent disability is to be reconsidered.

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18. Undisputedly, the multiplier applicable in this case is `18’ as per the judgment of the Hon'ble Apex

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HC-KAR

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Court in the case of SarlaVerma -vs- Delhi Transport Corporation and others, reported in (2009) 6 SCC 121. On the basis of the same, loss of future earning capacity due to permanent disability is to be determined.

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19. Accordingly, following compensation is awarded:

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Particulars	Amount in Rs.
Pain and suffering	1,00,000/-
Loss of income during laid of period (Rs.7,000/- x 3)	21,000/-
Attendant charges and special diet	15,000/-
Medical expenses	60,000/-
Loss of future earning capacity due to permanent disability (Rs.7,000/- x 12x 18 x 30%)	4,53,600/-
Loss of amenities and future unhappiness	15,000/-
Total	6,64,600/-
Less: Compensation awarded by the Tribunal	2,85,000/-
Enhancement -	_________ 3,79,600/-
Rounded off to -	3,80,000/-

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Thus, the claimant is entitled for

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enhanced compensation of Rs.3,80,000/- alongwith

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HC-KAR

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interest at 6% p.a. on the enhanced amount from the date of petition till its realization. Accordingly, point No.1 is answered partly in the affirmative.

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Undisputedly, the respondent No.2 being the owner and respondent No.1 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 23^rd January 2013, passed in MVC.No.1427/2012, by the Addl.District Judge and M.A.C.T., and Fast Track Court-I, Hassan, stands modified.

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iii) The claimant is entitled for enhanced compensation of Rs.3,80,000/-, along 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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