Anand Vs Chandan

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.06.09.2017 PASSED IN MVC NO.614/2015 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC,.

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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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NC: 2026:KHC:15713 MFA No. 1473 of 2020

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 06.09.2017 passed in MVC.No.614/2015 by the Principal District Judge and MMACT, Chikkamagaluru, (for short, ‘Tribunal’).

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Though this appeal is listed for admission, with the

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

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Sri. N.R. Ravikumar, learned counsel appearing for the appellant submits that the Tribunal has committed a grave error in assessing the income, disability and awarded a meager compensation to the injured. It is submitted that the appellant was treated as an inpatient for 16 days in Tejasvini Hospital, Mangalore. As per the medical treatment, he suffered amputation of a toe. Ignoring the oral evidence of CW1 and other medical records the Tribunal has assessed the disability at 9% which is on the lower side. It is further submitted that, the award of compensation by the Tribunal on other heads also requires enhancement and no compensation is awarded on the

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HC-KAR

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head of loss of income during laid up period. Hence, he seeks to allow the appeal.

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Though the notice is served on the respondent, there is no representation.

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I have heard the arguments of learned counsel for

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the appellant and meticulously perused the material available on record.

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The only point that would arise for consideration in this appeal is :

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" Whether the impugned judgment and award passed by the Tribunal calls for any interference?"

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The above point is answered in the affirmative for the following reasons:

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a. The material on record indicates that the appellant was proceeding from Sakarayapatana and Chikmagalur on 16.03.2015 at the time he met with a road accident and sustained fracture and grievous injuries. He was provided treatment initially at MG Hospital Chikmagalur and thereafter at Tejasvini Hospital, Mangalore.

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b. The appellant filed the claim petition under Section 166 of the Motor Vehicle Act, 1988. In order to prove the claim,

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HC-KAR

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the appellant examined himself as PW1, got examined treated doctor Dr. Shantharam Shetty as CW1, got marked documents as Exs.P1 to 65 and CW1 to CW3. The respondent examined himself as RW1. The Tribunal on appreciation of the evidence on record awarded total compensation of Rs.2,42,700/- and directed the respondent driver cum owner of the vehicle to pay the compensation along with the interest rate of 6% per annum.

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c. The records further indicate that the appellant in the said road accident sustained fracture of left neck of femur and crush injury on right foot with great toe amputation, right 2, 3, 4 and 5^th metatarsal bone.

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d. The aforesaid injuries can be noticed from Ex.P7the wound certificate and oral evidence of CW1. The medical records indicate that the appellant was inpatient for 16 days suffered fracture to his neck of femur, crushed injuries on the right foot, and amputation to a toe. Considering the said injuries, CW1 has assessed the disability at 22% and to the particular limb, by assessing 6% disability to the amputation of toe. The Tribunal, ignoring the said evidence, assessed the disability at 9%. In my considered view, taking note of the oral

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HC-KAR

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evidence of CW2, injuries referred in wound certificate Ex.P.7, I am of the view that interest and justice would be met if the disability is assessed at 12% to the whole body for the purpose of determination of compensation.

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e. The appellant claimed that he was carrying out coolie work and also a business and used to earn Rs.15,000/per month. However, no evidence is placed on record to the said effect. In the absence of cogent and legally acceptable evidence before the Tribunal, I am of the view that the income of the appellant is required to be assessed notionally at Rs.9,000/- placing reliance on the chart prepared by Karnataka State Legal Services Authority. The appellant was aged about 30 years at the time of the accident, hence the appropriate multiplier is '16'. Taking note of the oral evidence of the injured by PW1, CW1 treated doctor and other medical evidence on record, I am of the considered view that the compensation is required to be re-assessed on other heads also and accordingly the same is re-assessed as under:

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f. The loss of income due to disability would amount to (9,000 X 12 X 16 X 12% =2,07,360/-).

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HC-KAR

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g. The Tribunal has erred in not awarding

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compensation under the head of loss of income during laid up period which is required to be awarded for a period of 3 months i.e., Rs.9,000 X 3 =27,000/-

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h. Thus, the appellant-claimant would be entitled to

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modified compensation as under:

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HEADS	AMOUNT (in Rs.)
Pain and suffering	50,000/-
Attendant, food and nourishment charges	25,000/-
Medical expenses	78,000/-
Loss of income due to disability	2,07,360/-
Transportation	5,000/-
Loss of income during laid up period	27,000/-
Total	3,92,360/-

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Thus, the appellant-claimant shall be entitled to a

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total compensation of Rs.3,92,360/- as against Rs.2,42,680/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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NC: 2026:KHC:15713 MFA No. 1473 of 2020

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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 06.09.2017 passed in MVC.No.614/2015 by the Principal District Judge and MMACT, Chikkamagaluru is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs.3,92,360/- as against Rs.2,42,680/- awarded by the Tribunal.

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iii) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

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iv) The respondent - owner cum driver is directed to deposit the compensation amount before the Tribunal within a period of two months from the date of receipt of certified copy of this judgment.

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v) The rest of the judgment and award of the Tribunal with respect to apportionment, deposit and release shall remain unaltered.

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vi) Registry shall transmit the records to the Tribunal forthwith.

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vii) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL)

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JUDGE

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PNV - List No.: 1 Sl No.: 13

Anand v. Chandan

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Anand v. Chandan

Case brief

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