Shesha Swaroop H S Vs Lomo Jovo Fernandis

Digitally D.B.ROAD, PANJI NORTH PIN-403 001, signed by MADHURI S GOA, GOA STATE. Location: High Court of 2. KRISHNANANDA S SALAGAVANKAR, Karnataka S/O SURESH SALAGAVANKAR, AGED ABOUT 36 YEARS, R/O THAMSVADA KODI BHAGA, SIDDAPURA TALUK PIN-581 329 KARVAR DISTRICT.

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THE UNITED INDIAN INSURANCE CO., HADSON CIRCLE, BANGALORE-560 001.

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NC: 2025:KHC:30068 MFA No. 8935 of 2018

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HC-KAR

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(POLICY NO.TUI/11078061, 27.06.2013 TO 20.06.2014)

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…RESPONDENTS

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(BY SRI. RAVISH BENNI., ADVOCATE FOR R3, V/O DTD:16.06.2025 NOTICE TO R1 & R2 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.05.2018 PASSED IN MVC NO.593/2014 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE, AMACT-8, SHIVAMOGGA, 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: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the appellant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 22.05.2018 in MVC No.593/2014 on the file of II Additional Senior Civil Judge, MACT-8, Shivamogga, for seeking enhancement of compensation.

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Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.3-

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NC: 2025:KHC:30068 MFA No. 8935 of 2018

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HC-KAR

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Insurance Company. Issuing notice to respondent Nos.1 and 2, is hereby dispensed with.

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Injured claimant filed claim application before the tribunal for compensation of Rs.6,34,570/-. The tribunal considering the entire evidence on record granted an amount of Rs.2,62,000/- with interest at the rate of 6 % p.a., from the date of order till realisation.

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Aggrieved by the said order, claimant preferred this appeal and mainly contended that the amount awarded by the tribunal is on lower side. Interest was not granted from the date of petition. The documents were not appreciated properly, the income of the appellant was not considered properly and the future income of the appellant was not considered, though he completed B.E. graduation during the time of accident. Thus requested for enhancement. The claimant examined PW2 doctor. He relied upon Ex.P5 and also Ex.P7. The Ex.P.7 is the treatment certificate which shows that the petitioner has sustained fracture of lower 1/3^rd fibula with posterior

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HC-KAR

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mallcolar fracture and he was admitted to the hospital on 27.10.2013, fracture fixation done on 28.10.2013 and discharged on 31.10.2013 and reviewed on 12.11.2013 and on 17.12.2013 with an advise to take follow up treatment. PW2 also stated that Petitioner was admitted

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to the hospital on 27.10.2013 and he has sustained fracture of lower 1/3^rd of fibula with posterior malleolar fracture and he was admitted on 27.10.2013 and fracture fixation done on 28.10.2013 and discharged on 31.10.2013 and reviewed on 12.11.2013 and 17.12.2013 and he has 20 degrees of dorsiflexion and plantar flexion movements in his left ankle joint and he had grade IV power in his left ankle dorsiflexiors and because of the above, he is unable to squat and he has also difficulty in running and carrying weight and walking and because of the injury, he has 23% disability in his left lower limb locomotor function permanently based on the formula as per the Central Government Gazette notification and further he needs implant removal surgery and the cost of

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HC-KAR

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which is Rs.25,000/-. He has produced Ex.C.1 OP records, Ex.C.2 IP records, Ex.C.3 x-ray and Ex.C.4 disability certificate and it is inconsonance with the evidence of CW.1.

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The petitioner also took treatment in KMC Hospital from 27.10.2013 to 31.10.2013 and he requires future treatment for removal of the implants fixed. The Tribunal has taken 1/3^rd of the said disability and calculated the compensation, but the counsel of the appellant requesting this court to to take the disability as 15% instead of 8%. Admittedly, PW2 assessed the disability as 23% and the tribunal rightly taken 1/3^rd of 23% as 8% and it needs no interference. The petitioner was a student studying in final year of B’Tech, and the accident occurred in 2013. Hence, the income was taken as Rs.6,000/- per month, but as per the guidelines of Karnataka State Legal Services Authority, as he met with an accident in the year 2013 and his income is to be taken as Rs.8,000/- per month. Therefore, the loss of future

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HC-KAR

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income would be Rs.8,000 x 12 x 18 x 8%, total compensation comes to Rs.1,38,240/-. This court also finds it reasonable to grant an amount of Rs.30,000/- under the head loss of amenities, apart from pain and suffering granted by the tribunal. The medical expenses were rightly granted and there is no need of interference. It is stated that the appellant also underwent another surgery for removal of the implants and thus loss of income is to be granted for a period of four months i.e., Rs.8000 x 4 = Rs.32000/- . Thus, loss of income during laid up period is enhanced from Rs.12,000/to Rs.32,000/-.

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Learned counsel for the appellant had filed transport bills to an extent of Rs.19,200/- and an amount of Rs.19,200/is granted for transportation and Rs.15,000/towards attendant charges, Rs.15,000/towards extra nourishment. Therefore, Rs.36,000/- which was granted towards food, nourishment, conveyance and miscellaneous charges has been enhance to Rs.49,200/- .

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HC-KAR

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The petitioner had also filed Ex.P59 to show the damage of vehicle to an extent of Rs.10,740/- and the said amount is hereby granted. Further, future medical expenses of removal of implants an amount offered Rs.25,000/- was stated by PW2, but the said amount was not granted. Therefore, this court finds it reasonable to grant Rs.25,000/- towards future medical expenses.

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Thus in all, compensation awarded by this court are as below,

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Particulars	Amount in Rs.
Loss of future income	1,38,240.00
Loss of amenities	30,000.00
Pain and suffering	30,000.00
loss of income during laid up period	32,000.00
Medical expenses	79,922.00
food, nourishment, conveyance and miscellaneous charges	49,200.00
Loss of damages	10,740.00
Future medical expenses	25,000.00
Total	3,95,102.00

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NC: 2025:KHC:30068 MFA No. 8935 of 2018

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HC-KAR

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Hence, the appellant-claimant is entitled for a total enhanced compensation of Rs.3,95,102/- along with interest at the rate of 6% p.a., from the date of petition till the date of realization.

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In the result, the following order is passed:

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ORDER

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i. Appeal is allowed in part. ii. The judgment and award dated 22.05.2018 in MVC No.593/2014 on the file of II Additional Senior Civil Judge, AMACT8, Shivamogga, is modified;

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iii. The claimant is entitled to a sum of Rs. 3,95,102 /- along with interest at 6% p.a as from the date of petition till the date of realization, instead of Rs.2,61,602/granted by the tribunal;

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