Santhosh K Vs the Oriental Insurance Company Ltd.

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.02.04.2019 PASSED IN MVC NO.3717/2017 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU (SCCH-15), 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 MR. JUSTICE VIJAYKUMAR A. PATIL

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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 02.04.2019 passed in MVC.No.3717/2017, by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'Tribunal') for enhancing the compensation.

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Heard the arguments of the learned counsel

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Sri.Pramod Gowda T.P, appearing for the appellant and learned counsel Smt.Nayanashree for Sri.Ashok.N.Nayak appearing for respondent No.1.

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Learned counsel appearing for the appellant

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submits that the Tribunal has committed grave error in

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HC-KAR

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assessing the income of the injured at Rs.7,000/- per month. It is submitted that the appellant sustained grievous injuries and fracture. However, the Tribunal assessed the disability at 6%, which is required to be enhanced appropriately. It is submitted that the award of compensation on all other heads is also on the lower side. Hence he seeks to reassess the same by allowing the appeal.

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Per contra , learned counsel appearing for

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respondent No.1 submits that the appellant has not produced any evidence before the Tribunal with regard to the income. It is submitted that PW.2 is not a treated doctor. Hence, the Tribunal is fully justified in assessing the disability at 6%. He submits that award of compensation of Tribunal on all other heads is just and proper, does not call for any enhancement. Hence he seeks to dismiss the appeal of the injured-claimant.

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HC-KAR

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I have heard the arguments of learned counsel

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for appellant and learned counsel for respondent No.1 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 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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The appellant met with a road accident on 14.11.2016, filed a claim petition under Section 166 of the Motor Vehicles Act seeking for compensation of Rs.25,00,000/-. The claimant examined himself as PW.1 and one Dr.Arun H.S examined as PW.2 and got mark Ex.P1 to Ex.P15. The respondent did not adduce any evidence. The Tribunal considering the evidence on record has awarded compensation of Rs.2,01,000/- with interest

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HC-KAR

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at the rate of 8% p.a. from the date of petition till the date

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of realization of the amount.

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It is to be noticed that the petitioner was aged about 20 years at the time of the accident and he was an agriculturist and was earning of Rs.20,000/p.m. However, no evidence is placed before the Tribunal with regard to the income. In the absence of proof of income, it is notionally reassessed at Rs.9,500/- per month, placing reliance on the notional income chart prepared by Karnataka State Legal Services Authority.

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The oral evidence of PW.2 and documentary

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evidence at Ex.P9 to Ex.P15 indicates that the appellant has sustained the following injuries:

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pain, deformity and swelling in right wrist.

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Restriction of movement of right wrist.

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Closed dorsal barton (intra articular extension) right wrist.

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It is not in dispute that considering the oral testimony of PW.2 and medical evidence on record, the

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HC-KAR

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Tribunal assessed the disability at 6%. In my considered view, the same is in accordance with law and does not call for any modification.

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It is also to be noticed that the appellant was inpatient from 16.11.2016 to 30.11.2016 and underwent surgery. Considering the aforesaid aspects and only evidence of PW.2 the compensation is reassessed as under:

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Particulars	Amount in Rs.
Pain and Sufferings	40,000.00
Loss of income during the laid up period (9,500x3)	28,500.00
Medical Expenditure	23,000.00
Future Medical Expenditure	10,000.00
Loss of Future Income (9,500x12x18x6%)	1,23,120.00
Towards diet and conveyance	20,000.00
Loss of amenities	30,000.00
Total	2,74,620.00

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Hence, the compensation is enhanced from

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Rs.2,01,000/- to Rs.2,74,620/-.

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HC-KAR

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In view of the aforesaid reasons, I pass the

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following:-

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ORDER

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(i) The Appeal is partly allowed ;

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(ii) The impugned judgment and award dated 02.04.2019 passed in MVC.No.3717/2017 by the Court of Motor Accident Claims Tribunal, Bengaluru is modified;

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(iii) The claimant is entitled to a sum of Rs. 2,74,620 /- as against Rs.2,01,000/- along with an interest at 6% per annum from the date of petition till the date of realization;

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