Mallesh R B Vs the Manager

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.9.2013 PASSED IN MVC NO.5823/2011 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, 26^TH ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2025:KHC:10468 MFA No. 946 of 2014

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL JUDGMENT

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Aggrieved by the award passed in M.V.C.No.5823/2011 dated 28.09.2013 by the Judge, Court of Small Causes & XXVI ACMM, Bangalore and Motor Accident Claims Tribunal, Bangalore, the appellant/claimant is before this Court seeking enhancement of the compensation.

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The claim petition is filed seeking compensation of an amount of Rs.6,00,000/- for the injuries sustained by the claimant in the accident. The facts of the case are that on 14.06.2011 at about 7.00 p.m. on Bangalore-Kanakapura main road when the claimant was riding the motor cycle, the driver of APE Auto drove the same in a rash and negligent manner from opposite side and dashed against the motor cycle and the claimant had sustained injuries and thereafter the said auto proceeded and dashed against another motor cycle. According to the claimant, after the accident he was shifted to Sai Ram Hospital and he took treatment in the said hospital as inpatient and underwent surgery and discharged

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from the hospital. As per the evidence of the doctor, the claimant had sustained 42% disability to the limb and 14% to the whole body. According to the claimant he is an agriculturalist and earning an amount of Rs.12,000/-per month.

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The Court had considered the aspect that the driver of the auto rickshaw was not having a valid driving license to drive the vehicle and basing on Ex.R.1 MLC register extract, the Court has come to the conclusion there is a contributory negligence on the part of the claimant and it assessed the negligence at 30%. When it comes to the liability, the Court has held that the insurance company is liable to pay the compensation and recover the same from the owner of the vehicle.

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Coming to the compensation, the court had taken the disability at 10%, whereas, as per the evidence of the doctor it is 14% to the whole body. There is no explanation forthcoming on what basis the Court has come to the conclusion that disability of 14% as per the doctor, the trial Court has taken at 10%. When it comes to the salary, Court

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had taken the salary at Rs.4,500/- and 50% future prospects i.e., Rs.4,500/- + 50% future prospects = Rs.6,750/- as income. Towards Loss of income, Court had granted an amount of Rs. Rs.129,600/- (Rs.6750/-x12 x 16 x 10/100 = Rs.1,29,600/-). Considering the fact that he had taken treatment as an inpatient, Court had granted an amount of Rs.10,000/towards attendant, nourishment charges. Towards the loss of income during the laid up period for two months Court had granted an amount of Rs.16,500/- and under the head of loss of amenities an amount of Rs.30,000/is granted and an amount of Rs.25,000/- towards pain and suffering. For discomfort and mental stress an amount of Rs.6,000/- is granted and for the future medical expenses an amount of Rs.25,000/- is granted. Towards medical expenses incurred an amount of Rs.1,84,778/- is granted. Altogether a compensation of an amount of Rs.4,26,878/- is awarded by

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the tribunal as per the table below:

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Sl.	Heads		Compensation
No.			Awarded
1	Loss of future earning capacity	Rs.	1,29,600/-
2	Diet, conveyance and attendant charges	Rs.	10,000/-
3	Loss of income during	Rs.	16,500/-

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	the laid up period
4	Pain and suffering	Rs.	25,000/-
5	Loss of amenities and unhappiness in life	Rs.	30,000/-
6	Discomfort and mental stress in life	Rs.	6,000/-
7	For future Medical Expenses	Rs.	25,000/-
8	For Medical Expenses	Rs.	1,84,778/-
	TOTAL	Rs.	4,26,878/-

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Further, the Court has considered the contributory negligence at 30% and the Court has held that the claimant is entitled for an amount of Rs.2,98,830/-. Aggrieved thereby, the claimant is before this Court.

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Learned counsel appearing for the claimant submits that the contributory negligence fixed at 30% on the claimant is without any basis. He submits that all the medical reports support the case of the claimant that the accident had taken place because of the rash and negligent driving of the driver of the offending auto. It is submitted that even as per Ex.P-3 i.e., IMV report also supports the case of the claimant that there is lot of damage to the auto, shows that the offending auto is at fault. He submits that basing on Ex.R.1 the Court had fixed the liability at 30%. It is submitted that when the

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Insurance Company is stating that there is contributory negligence, the burden lies on them to prove that there is contributory negligence and the same was not proved by the Insurance Company. In that case trial Court ought not to have fixed the contributory negligence at 30%. It is further submitted that no one is examined by the Insurance Company in support of the same. It is submitted that the Court had taken the disability at 10% and the evidence on record shows that the disability as per the doctor is 14% to the whole body. Learned counsel further submits that under the head of pain and suffering and attendant, nourishment and the amount that is granted by the tribunal is on the lower side and the same needs to be enhanced.

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7.Learned counsel appearing for the respondent/ Insurance Company submits that the Court in fact should have fixed the contribute negligence at 50%, instead of that, Court has fixed only 30% as contributory negligence and that requires no interference from this Court. It is submitted that Ex.R-1 clearly shows that while he was overtaking the other vehicle, the accident had taken place and the contributory negligence ought to have been at 50%. He further submits

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that there is no evidence on record to show what is the income of the claimant is. For the loss of income, Court had considered the future prospects at 50% when the disability even as per the doctor is 14%. There is no evidence to show that it will not impact his future earning, the Court ought not to have granted the future prospects. It is submitted that the compensation awarded by the tribunal is already on the higher side and no interference is called for.

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Having heard the learned counsels on either side, perused the material on record. The claimant is before this Court on two grounds, one is for enhancement of the compensation and the other is for the contributory negligence. First coming to the aspect of contributory negligence, all the police records show that because of the rash and negligent driving of the driver of the auto the accident had taken place. The insurance company is relying on Ex.R.1/medico legal register extract. As per the same the accident had occurred while the insured was trying to overtake the other vehicle he met with an accident basing on that the Court had fixed the contributory negligence at 30%. Admittedly in this case when the insurance company is holding the contributory negligence

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except filing Ex.P.1 no other person is examined in support of the case, who has given the said statement to the hospital authorities is also not forthcoming from Ex.R.1. The insurance company had not examined anyone on their behalf. When all the police records clearly shows that except the officer of the insurance company, no other person is examined from the hospital side with regard to Ex.R.1. When all the police records clearly shows that there is negligence on the part of the driver of the auto and the crime is registered against the driver of the vehicle and when the insurance company is alleging contributory negligence, they should have adduced cogent evidence to put forth their claim in this case. Basing on Ex.R.1 alone, the trial Court cannot come to such a conclusion that there is contributory negligence. Hence, this Court is of the view that the said finding of the Court fixing the contributory negligence at 30% on the claimant needs to be set aside. Then coming to the injuries as per the Ex.P.5 discharge summary, the claimant had sustained following injuries:

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1. Head Injury

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2. Laceration over right knee and partial tear of quadriceps muscle

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3. Right pneumothorax

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4. Multiple hemorrhagic contusion in bilateral temporoparietal lobes with oedma.

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5. Right clavicle communited fracture

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6. Minimal displaced fracture of bilateral temporal bones with ossicular disruption on left.

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Considering the multiple injuries that the claimant has sustained under the head of pain and suffering , this Court is granting an amount of Rs.80,000/-. Then coming to the income, considering that this is an accident of the year 2011 and considering the nature of injury for four months (Rs.6,500 x 4 = Rs.26,000/-) this Court is granting an amount of Rs.26,000/- towards loss of income during the laid up period . Considering the hospitalization of 50 days towards transport, nourishment and attending charges an amount to Rs.30,000/- is granted. Towards loss of amenities, the trial Court has granted an amount to Rs.30,000/- which requires no interference. Then coming to the future medical expenses an amount of Rs.25,000/- is

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granted and towards medical expenses an amount of Rs.1,84,778/- is granted, which needs no interference. Coming to the loss of future earning capacity, the trial

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Court has considered 50% future loss of earnings. Considering the medical evidence and the disability, this Court is not inclined to grant the same and the this Court has taken the income at Rs.6,500/-. As per the evidence of the doctor the claimant had sustained 14% disability to the whole body. Coming to the disability, considering the evidence of the doctor and the condition of the claimant, the trial Court had rightly taken 10% as a disability and this Court is not interfering with the same. Hence, taking the income at Rs.6,500/- (Rs.6,500/- x 12 x 16 x 10/100 = Rs.1,24,800/-) this Court is granting an amount of Rs.1,24,800/- towards loss of future earning capacity .

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V. MEKALA Vs. M. MALATHI AND ANOTHER¹ , the claimant is entitled for an amount of Rs.10,000/- towards legal expenses . Altogether the claimant is entitled for an amount Rs.5,16,578/- at 6% interest.

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1 (2014) 11 SCC 178

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The claimant is therefore, entitled to the

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compensation under the following heads:

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Sl. No.	Heads	Co Awar	mpensation ded by Tribunal	Compensation Awarded by this Court
1	Loss of future earning capacity	Rs.	1,29,600/-	1,24,800/-
2	Diet, conveyance and attendant charges	Rs.	10,000/-	30,000/-
3	Loss of income during the laid up period	Rs.	16,500/-	26,000/-
4	Pain and suffering	Rs.	25,000/-	80,000/-
5	Loss of amenities and unhappiness in life	Rs.	30,000/-	30,000/-
6	For discomfort and mental stress in life	Rs.	6,000/-	00
7	For Future Medical expenses	Rs.	25,000/-	25,000/-
8	For Medical expenses	Rs.	1,84,778/-	1,84,778/-
9	Legal Expenses	Rs.	00/-	10,000/-
	TOTAL	Rs.	4,26,878/- after deducting contributory negligence, Rs.2,98,830/- was granted.	5,10,578/-

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Accordingly the appeal filed by the claimant is

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Allowed-in-part by enhancing the compensation amount from an amount of Rs.2,98,830/- to Rs.5,10,578/-.

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i. The compensation amount shall be paid by the insurance company and recover the same from the owner of the vehicle.

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ii. The enhanced amount shall carry interest @ 6% per annum from the date of petition, till the date of realization.

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iii. Respondent No.1-Insurance Company shall deposit the said compensation amount with accrued interest eight weeks. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.

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iv. The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this Court forthwith without any delay.

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v. No Costs.

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Pending miscellaneous petitions, if any, shall stands

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closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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TS List No.: 1 Sl No.: 8

Mallesh R B v. the Manager

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Mallesh R B v. the Manager

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