Kiruba N Vs Channappa Musalmari

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2022 PASSED IN MVC NO.1467/2020 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU (SCCH-11), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE S.G.PANDIT

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and

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HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K.V. ARAVIND)

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Heard Sri A. Sreenivasaiah, learned counsel for the appellant-claimant and Sri C. Shankar Reddy, learned counsel for respondent No.2-Insurer.

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This appeal is filed by the claimant, being dissatisfied with the award dated 26.09.2022 passed in MVC No.1467/2020 by the Motor Accident Claims Tribunal, Bengaluru (for short, “the Tribunal”).

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The appellant-claimant filed a claim petition seeking compensation for the grievous injuries sustained in a road traffic accident that occurred on 26.12.2019 at about 5.30 p.m., involving his motorcycle bearing registration No.KA-03-

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HC-KAR

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KA-2351 and a car bearing registration No.KA-22-C-8939. It is stated that, at the time of the accident, the claimant was working as a Customer Service Associate at Teleperformance Global Services Pvt. Ltd., Bengaluru, and was earning a salary of Rs.20,000/- per month.

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3.1 Upon service of notice, respondent Nos.1 and 2 entered appearance and filed their respective written statements. Respondent No.1 denied the averments made in the claim petition, apart from disputing the age, occupation, and income of the injured, and further contended that the accident occurred due to the negligence of the claimant.

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3.2 Respondent No.2–insurer filed its written statement contending that there was a delay of one day in lodging the complaint. It was further contended that the accident occurred due to the negligence of the rider of the motorcycle.

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3.3 The claimant examined himself as PW1 and also examined two other witnesses as PW2 and PW3, and got marked Exs.P1 to P22. On behalf of the respondents, RW1 was examined and Exs.R1 to R4 were marked.

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HC-KAR

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3.4 The Tribunal held that the accident occurred due to the negligence of the driver of the offending car and awarded a total compensation of Rs.32,11,166/- by considering the age of the appellant-claimant as 21 years, applying the multiplier of 18, and assessing the functional disability at 85%.

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Sri A. Sreenivasaiah, learned counsel appearing for the appellant, submits that the compensation awarded by the Tribunal is on the lower side. It is contended that, having regard to the avocation of the appellant and the nature of the injuries suffered, the Tribunal ought to have assessed the functional disability at 100%. It is further submitted that the Tribunal has failed to award 40% of the assessed income towards future prospects.

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4.1 It is also submitted that, despite noticing that the appellant is unmarried, the Tribunal has not awarded any compensation towards loss of marriage prospects. Learned counsel further contends that the appellant was an inpatient for 39 days and continued to undergo treatment thereafter. Therefore, the Tribunal committed an error in awarding loss of

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HC-KAR

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income during the laid-up period only to the extent of two months’ income.

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4.2 It is further submitted that the compensation awarded under various other heads, such as food and nourishment, medical attendant charges, transportation, pain and suffering, and loss of future amenities, is on the lower side.

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Sri C. Shankar Reddy, learned counsel appearing for respondent No.2–insurer, submits that the compensation awarded by the Tribunal is just and proper. It is contended that, having regard to the nature of the injuries sustained, the functional disability assessed at 85% is itself on the higher side. It is further submitted that the compensation awarded under the other heads is just and reasonable, and therefore, no interference is warranted.

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Considered the submissions made by learned counsel for the parties and perused the records.

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The Tribunal, while assessing the functional disability at 85%, has referred to the evidence of PW3-Doctor. Though PW3-Doctor assessed the whole-body disability at 85%, the

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HC-KAR

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Tribunal, having regard to the nature of the fractures and injuries sustained, assessed the functional disability at 85%.

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7.1 The avocation of the appellant prior to the accident has

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not been satisfactorily established. In the absence of such evidence, the contention of the appellant that the functional disability ought to have been assessed at 100% cannot be accepted. Functional disability has to be assessed with reference to the avocation of the injured as on the date of the accident and his ability to perform the same or similar work, or engage in such other activities. The photographs produced as Ex.P13, depict the nature and extent of the injuries suffered by

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the appellant. Upon perusal of the photographs at Ex.P13 and medical records, we find no reason to interfere with the Tribunal’s assessment of functional disability at 85%.

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7.2 It is a settled position of law that 40% of the assessed monthly income is liable to be added towards future prospects. In the present case, the appellant was aged 21 years as on the date of the accident. However, the permanent nature or otherwise of his employment has not been established. In the absence of evidence to prove that the appellant was in

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HC-KAR

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permanent employment, the appellant would be entitled to addition of 40% towards future prospects, having regard to his age. Accordingly, we add 40% towards future prospects to the assessed monthly income. The loss of future earnings is reassessed as under;

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25,70,400 + (40% of 25,70,400) = Rs.35,98,560/-

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7.3 The appellant was an inpatient for treatment for 39 days on two occasions. The Tribunal has awarded a sum of Rs.15,600/- towards food, nourishment, medical, and attendant charges. In our considered view, the compensation so awarded is on the lower side. Having regard to the nature of the injuries sustained and the period of hospitalization, the appellant would be entitled to Rs.500/- per day for 39 days, which works out to Rs.19,500/-. Accordingly, we award a sum of Rs.19,500/towards food and extra nourishment.

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7.4 Having regard to the period of hospitalization of 39 days,

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the appellant would be entitled to a sum of Rs.39,000/towards attendant charges.

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HC-KAR

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7.5 The Tribunal assessed the monthly income of the appellant at Rs.14,000/- and, on that basis, awarded a sum of Rs.28,000/- towards loss of income during the laid-up period. The appellant was an inpatient for 39 days. However, having regard to the nature of the injuries sustained, a further period of four months would reasonably be required for recovery. The Tribunal has not taken into consideration the post-discharge recuperation period during which the appellant was deprived of earning. Accordingly, we consider six months as the appropriate laid-up period and award a sum of Rs.84,000/(Rs.14,000/- X 6 months) towards loss of income during the laid-up period.

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7.6 The Tribunal, despite noticing that the claimant was aged 21 years and was a bachelor, has not awarded any compensation under the head of loss of marriage prospects. The functional disability has been assessed at 85%, and the photographs produced as Ex.P13 reflect the physical condition of the appellant, which would undoubtedly have adverse effects on his marriage prospects and, therefore, requires to be

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HC-KAR

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compensated. Accordingly, we award a sum of Rs.2,50,000/-

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towards loss of marriage prospects.

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7.7 Hence, the compensation is re-computed as under:

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Sl No.	Particulars	Compensation by the Tribunal in Rs.	Compensation by this Court in Rs.
1.	Towards injury, pain and suffering	50,000/-	50,000/-
2.	Towards medical expenses	4,87,166/-	4,87,166/-
3.	Towards food and extra nourishment and medical attendant	15,600/-	58,500/- (19,500 + 39,000)
4.	Towards conveyance	10,000/-	10,000/-
5.	Towards loss of income during treatment	28,000/-	84,000/-
6.	Towards loss of future future earning	25,70,400/-	Rs.35,98,560/-
7.	Deprivation of future amenities	50,000/-	50,000/-
8.	Towards loss of marriage prospects	–	2,50,000/-
	Total	32,11,166/-	45,88,226/-
Enha	nced Compensation	13,77,	060/-