Sri Sheik Mubarak Vs Sri Niranjan

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 02/06/2018, PASSED IN MVC NO.280/2017, ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & VII ADDITIONAL MACT, DAVANAGERE, 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:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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This appeal is filed by the injured/claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 02.06.2018 passed in MVC.No.280/2017 by the III Additional Senior Civil Judge & VII Additional MACT, Davangere, (for short, ‘Tribunal’).

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Though this appeal is listed for admission, with

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the consent of learned counsel for the parties, it is taken up for final disposal.

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HC-KAR

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Heard Sri.Raju H., learned counsel for

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Sri.Maruthi G.B., learned counsel for the appellant-injured and Sri.K.Nagarajaiah, learned counsel for the respondent No.3-insurance company.

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Learned counsel for the appellant submits that the Tribunal has committed an error in assessing the income and disability of the appellant-injured by ignoring the oral and documentary evidence on record. It is submitted that the appellant was admitted as an in-patient on two occasions for 6 days each. It is further submitted that the award of compensation under the head of pain and suffering, loss of amenities and other heads is also on the lower side and the same is required to be re-assessed appropriately. Hence, he seeks to allow the appeal.

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Per contra, learned counsel for the respondent No.3 - insurance company supports the impugned judgment and award of the Tribunal and submits that the claimant has not produced proof of income before the

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HC-KAR

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Tribunal. It is submitted that the claimant has suffered

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only one fracture and other injuries are minor in nature. Hence, the disability assessed at 8% is just and proper and does not call for any modification. It is further submitted that the award of compensation by the Tribunal is just and proper and needs no enhancement. Hence, he seeks to dismiss the appeal.

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I have heard the arguments of the learned

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counsel appearing on both sides and meticulously perused the material available on record.

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The only point that would arise for

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consideration in this appeal is :

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" Whether the judgment and award passed by the

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Tribunal calls for any interference?"

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The records indicate that the appellant met with

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a road accident on 25.01.2017. It is averred that the appellant was working as a mason and was earning Rs.500/- per day and he was provided treatment initially

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HC-KAR

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at Navodaya Hospital and thereafter he was shifted to Bapuji Hospital, Davangere, and provided treatment for more than 12 days. It is not in dispute that the appellant has not produced any cogent evidence with regard to the income. Hence, this Court re-assesses the income of the appellant at Rs.11,000/- per month placing reliance on the notional income chart prepared by the KSLSA. The appellant was aged about 19 years as on the date of accident, the appropriate multiplier would be 18, which has been rightly considered by the Tribunal.

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Insofar as disability is concerned, the appellant has examined the Doctor as PW-2 and got marked discharge card as Ex.P8, disability certificate as Ex.P9 and other medical records. The aforesaid documentary evidence and oral testimony of PW-2 indicate that the appellant has sustained the following injuries:

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"Disability of the petitioner :

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According to Ex.P5 petitioner sustained injuries in road traffic accident same is as follows:

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HC-KAR

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1. Abression over right pivotal area of 2x2 cm size

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2. Abression over right maxilla of 5x3 cm

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3. Abression over right Jaw of 10x3 cm

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4. Laceration wound over right little finger 3x3 cm

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5. Laceration wound over right elbow 4x3 cm

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6. Lacerated wound over lower 1/3^rd of right leg 6x4 cm

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7. Lacerated wound over dorsem of foot of 6x4 cm"

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PW-2 has clearly deposed that the appellant has

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sustained fracture of right tibia and opined that disability is 30% to the whole body. In my considered view, the said disability cannot be accepted, as PW-2 is not a treated doctor and based on the medical records placed before him and on examining the appellant, he assessed the disability. Considering the fact that the appellant has sustained one fracture and other injuries are minor injuries, it would be appropriate to assess the disability at 10% to the whole body for the purpose of compensation. Hence, the appellant is entitled to compensation under the head of loss of future income due to disability as under:

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HC-KAR

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Rs.11,000 X 12 X 18 X 10% = Rs.2,37,600/-.

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Having re-assessed the income and disability

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and considering the fact that the appellant was in-patient from 26.01.2017 to 01.02.2017 in Navodaya Hospital and thereafter from 24.12.2017 to 29.12.2017 in Bapuji Hospital, Davangere, and taking note of the treatment provided to him, I am of the considered view that the compensation awarded under other heads is also required to be enhanced appropriately. Hence, the appellant would be entitled to compensation of Rs.40,000/- towards pain & suffering; Rs.30,000/- towards loss of amenities in life,

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etc. The appellant would be entitled to Rs.33,000/- (Rs.11,000 X 3 months) towards the loss of income during laid-up period. The compensation awarded by the Tribunal towards medical expenses is unaltered. Thus, the appellant would be entitled to modified compensation as under:

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HEADS	AMOUNT
	(in Rs.)

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HC-KAR

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Loss of future income due to disability	2,37,600
Pain & suffering	40,000
Loss of amenities in life	30,000
Medical bills	23,867
Loss of income during laid up period	33,000
Total	3,64,467

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Thus, the appellant-claimant shall be entitled to total compensation of Rs.3,64,467/- as against Rs.1,89,000/awarded by the Tribunal.

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In the result, this Court proceeds to pass the

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following:

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ORDER

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a) Appeal is allowed in part .

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b) The impugned judgment and award of the

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Tribunal is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs.3,64,467/- as

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against Rs.1,89,000/- awarded by the Tribunal.

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c) The enhanced compensation amount shall

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carry interest at the rate of 6% per

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HC-KAR

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annum from the date of petition till the date of payment.

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d) The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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e) The entire compensation amount shall be released in favour of the appellantclaimant.

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f) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR/List No.: 1 Sl No.: 24

Sri Sheik Mubarak v. Sri Niranjan

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Sri Sheik Mubarak v. Sri Niranjan

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