Sri. Vinaykumar Vs Lakshminarayana

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.02.2014 PASSED IN MVC NO.472/2012 ON THE FILE OF THE FAST TRACK COURT AND MACT, TUMKUR, PARTLY 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:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This is claimant's appeal against judgment and award dated 25.02.2014 passed by the Fast Track and MACT, Tumkur (hereinafter referred to as ‘the Tribunal’ for short) in MVC No.472/2012 for enhancement of compensation.

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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Brief facts of the case are that on 29.11.2011 at about 05.00 p.m., claimant met with an accident at Halanoor-Mallasandra road, due to rash and negligent driving of a motorcycle bearing Reg.No.KA-06-EC-5849, by

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HC-KAR

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its rider. As a result, he sustained fracture of both bones of left leg and other injuries. He took treatment in Adithya Orthopedic and Trauma Centre as inpatient for 15 days; he under went surgery and spent more than Rs.40,000/towards medical expenses. He was aged about 16 years at the time of accident and was studying in 10^th standard. He was also vending vegetables and earning Rs.5,000/- p.m. With these reasons, he prayed to award compensation.

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Respondent No.2-insurer filed written statement denying the contentions of the claimant. It also disowns its liability to pay the compensation on the ground of violation of terms and conditions of the policy of insurance by the owner of the vehicle. With these reasons, prayed to dismiss the claim petition.

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

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The claimant’s to prove his case examined two witnesses as PW.1 and PW.2 and marked 16 documents as

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HC-KAR

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per Exs.P.1 to P.16. Respondents have not led any

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evidence.

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The Tribunal heard the arguments of both the

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sides and held that the accident occurred due to rash and negligent riding of the motorcycle by its rider. The Tribunal considering the contention of the parties awarded the following amount of compensation:

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Sl.No	Heads	Amount
1.	Pain and sufferings	Rs.40,000/-
2.	Medical Expenditure	Rs.76,925/-
3.	Loss of enjoyment in life and amenities	Rs.5,000/-
4.	Transportation charges	Rs.3,000/-
5.	Attendant's charges	Rs.3,500/-
6.	Loss of educational prospects	Rs.15,000/-
	Total	Rs.1,43,425/-

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Being dissatisfied with the award passed by the

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

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HC-KAR

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I have heard the arguments of learned counsel

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for the appellant as well as respondent No.2-insurer.

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Learned counsel for appellant submits that claimant was aged about 16 years at the time of accident. He lost his father prior to accident and therefore, helplessly he had to earn to maintain the family. He used to vend vegetables beyond school hours and earn a sum of Rs.5,000/- p.m. He further contends that compensation awarded by the Tribunal is on the lower side. The claimant proved that he has been suffering from permanent disability to an extent of 10% to the whole body, but no amount of compensation was awarded by the Tribunal towards the heading 'loss of future earning capacity due to permanent disability'. Therefore, he prayed to enhance the compensation.

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Learned counsel for respondent No.2 submits that the Tribunal has awarded just and reasonable amount of compensation and it does not call for any interference of this Court.

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HC-KAR

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The fact of the accident and injury sustained by the claimant are not in dispute. Therefore, there is no need to re-appreciate the evidence in this regard. According to the claimant, his age was 16 years at the time of accident and it is not seriously disputed. He contends that he was earning Rs.5,000/- p.m., by vending the vegetables. He also assigns reasons that due to the death of his father, to maintain the family, he was forced to earn the income. Such possibility cannot be ruled out.

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According to the evidence of PW.2, the claimant has suffered permanent disability to an extent of 30% to the left lower limb, compare to whole body it may be 10%. Multiplier applicable to case in hand is Re-appreciating materials on record, the amount of compensation awarded by the Tribunal in respect of loss of amenities, attendant charges etc., are on the lower side and that requires enhancement. Accordingly, the following compensation is awarded.

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HC-KAR

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Sl.No	Heads	Amount
1.	Pain and sufferings	Rs.40,000/-
2.	Medical Expenditure	Rs.76,925/-
3.	Loss of future earning capacity due to permanent disability (5,000X12X18X10%)	Rs.1,08,000/-
4.	Attendants charges, conveyance charges and special diet etc.,	Rs.25,000/-
5.	Loss of amenities	Rs.25,000/-
6.	Loss of educational prospects	Rs.15,000/-
7.	Loss of income during laid up period (5,000X3)	Rs.15,000/-
	Total	Rs.3,04,925/-
	Amount awarded by the Tribunal	Rs.1,43,425/-
	Enhancement-	Rs.1,61,500/-
	Rounded off-	*Rs.1,62,000/-*

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The claimant is entitled for the interest @ 6% per annum on the enhanced amount of compensation from the date of petition till its realisation.

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Undisputedly, respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle; both are jointly and severally liable to pay the said amount. Accordingly, I pass the following:

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HC-KAR

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ORDER

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i. The appeal is allowed in part.

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ii. The impugned judgment and award dated 25.02.2014 passed by the Fast Track and MACT, Tumkur, in MVC.No.472/2012 is modified;

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(a) Claimant is entitled to enhancement of compensation of Rs.1,62,000/- with interest at the rate of 6% p.a. on the enhanced amount of compensation from the date of petition till realization.

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iii. Respondent No.2 – insurance company shall deposit the said amount within a period of six weeks from the date of award.

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iv. At the time of passing of the award, the claimant was minor; now he has attend majority. Therefore, from the enhanced amount 50% shall be released in favour of the claimant and 50% shall be kept in

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