Smt. Gowramma Vs the Bharathi Axa General Insurance Co. Ltd.

THE BHARATHI AXA GENERAL INSURANCE CO LTD SY. NO. 28, I FLOOR, THE FERNS ICON, NEXT TO AKME BALLET, OFF OUTER RING ROAD, BENGALURU 560037. REP BY ITS MANAGER

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SRI. B S MANJUNATH S/O. SHIVANNA, THYAMAGONDLU, KALAGHATTA POST, NELAMANGALA TALUK PIN- 562123

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…RESPONDENTS

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(BY SRI. B C SHIVANNE GOWDA, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH)

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 21.01.2019 PASSED IN MVC NO.600/2014 ON THE FILE OF THE MEMBER, MACT, AND SENIOR CIVIL JUDGE, NELAMANGALA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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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 C.M. POONACHA

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ORAL JUDGMENT

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The above appeal is filed by the claimant challenging the judgment and award dated 21.01.2019 passed in MVC No.600/2014 by the Member, MACT and Senior Civil Judge, Nelamangala¹ seeking for enhancement of compensation.

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The Tribunal by its judgment and award dated 21.1.2019, partly allowed the claim petition and awarded a total compensation of `55,040/- together with interest 9% per annum. Being aggrieved, the claimant has filed the above appeal seeking for enhancement of compensation.

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1 Hereinafter referred to as the ‘Tribunal’

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HC-KAR

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The findings of the Tribunal on negligence and liability are not under challenge and have attained finality. The only question to be adjudicated in the above appeal is with regard to the adequacy of compensation awarded by the Tribunal.

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Heard the submissions of learned counsel Sri Raghu R. appearing for learned counsel Sri Supreeth B.P. for the appellant and learned counsel Sri B.C. Shivanne Gowda appearing for the respondent No.1/insurer. Perused the records, including the records of the Tribunal.

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It is forthcoming that the claimant was aged 50 years as on the date of the accident i.e., on 26.08.2014. Hence, the Tribunal has applied the appropriate multiplier of ‘13’ which is just and proper. It was averred that the claimant was stated to be a coolie and was earning 7,000/- per month. However, no documents have been produced to prove his income. Hence, the income of the claimant is assessed as 7,000/- per month.

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The claimant has sustained fracture of right upper arm and clavical. The Doctor (PW2) has deposed with regard to the treatment that the claimant underwent a surgery and the fractures are united. The Doctor assessed the disability to the

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HC-KAR

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upper limb at 30% and 10% to the whole body. However, the Tribunal has assessed the whole body disability at 4%. The disability assessed by the Tribunal is erroneous and liable to be interfered with. Having regard to nature of injuries, more particularly, since the claimant is a coolie and has sustained fracture to the right upper arm and clavical, it is just and proper that the disability be re-assessed as 10%. The claimant had taken treatment as an inpatient for a total period of 3 days.

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In view of the aforementioned, the compensation is reassessed as follows:

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7.1 The Tribunal has awarded 3,000/- towards medical expenses as well as nourishment. Having regard to the nature of injuries sustained and the period of treatment, it is just and proper that compensation towards medical expenses be awarded in a sum of 3,000/- and compensation towards food, nourishment and attendant charges be awarded in a sum of `10,000/-.

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7.2 Having regard to the nature of injuries sustained as also keeping in mind the avocation of the claimant, the loss of

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HC-KAR

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income during laid up period is re-assessed as three months and accordingly, a sum of (7,000 x 3) 21,000/- is awarded as against `4,600/- awarded by the Tribunal.

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7.3 Having regard to the nature of injuries sustained, the compensation towards pain and suffering is re-assessed as

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35,000/- as against 5,000/- awarded by the Tribunal.

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7.4 Keeping in mind the nature of injuries and the resultant disability, the loss of amenities is re-assessed as 25,000/- as against 5,000/- awarded by the Tribunal.

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7.5 The Loss of future earning capacity/disability is reassessed as (7,000 x 12 x 13 x 10%) 1,09,200/- as against `37,440/- awarded by the Tribunal.

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Taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as re-assessed by this Court.

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In view of the aforementioned, the compensation is reassessed as follows:

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HC-KAR

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Sl. No.	Compensation Head	Amount Awarded by the Tribunal(`)	Amount awarded by this Court (`)
1	Towards medical expenses and nourishment	3,000.00	`3,000.00
2	Food, nourishment and attendant charges		10,000.00
3	Towards loss of income during laid up period and rest	4,600.00	21,000.00
4	Towards injury pain and sufferings	5,000.00	35,000.00
5	Loss of future income	37,440.00	1,09,200.00
6	Towards loss of amenities of life	5,000.00	25,000.00
	Total	55,040.00	2,03,200.00

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Accordingly, the claimant is entitled to enhanced

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compensation of (2,03,200/- - 55,040/-) `1,48,160/-.

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In view of the aforementioned, 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 21.01.2019 passed in MVC No.600/2014 by the Member, MACT and Senior Civil Judge, Nelamangala is modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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