Sri. Basavaraj.G Vs Sri. Gangadharappa M

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 04.09.2019 PASSED IN MVC NO.1881/2017 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.

¶20

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

¶21

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

¶22

ORAL JUDGMENT

¶23

This appeal is filed by the injured/claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 04.09.2019 passed in MVC.No.1881/2017 by the I Additional Small Causes Judge & MACT, Bengaluru, (for short, ‘Tribunal’).

¶24

Though this appeal is listed for admission, with

¶25

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

¶26

Sri.Suresh M.Latur, learned counsel for the appellant submits that the Tribunal has committed a grave error in assessing the income of the appellant-injured at Rs.8,000/- per month by ignoring the fact that he was an

¶27

3 - NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶28

HC-KAR

¶29

agriculturist and because of the accident he has lost his earning capacity. It is submitted that the disability assessed by the Tribunal is on the lower side as PW2 - the treated doctor, has assessed the disability at 31.91%, taking into account the nature of injury suffered by the appellant and the treatment provided to him, he seeks to re-assess the same. It is also submitted that the Tribunal has awarded meager compensation on all other heads. Hence, he seeks to re-assess the same by taking note of the fact that the appellant was inpatient for a period of 13 days and thereafter he has taken follow up treatment on numerous days and being an agriculturalist, he is unable to do his regular activities. Hence, he seeks to allow the appeal.

¶30

Per contra, Sri.H.S.Lingaraj, learned counsel appearing for the respondent No.2-Insurance Company supports the impugned judgment and award of the Tribunal and submits that the appellant has not produced any evidence with regard to his income. The Tribunal,

¶31

4 - NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶32

HC-KAR

¶33

considering the assessment of the disability by PW2, rightly assessed the disability at 10% by considering the fracture suffered by the appellant. The appellant has failed to prove before the Tribunal that due to the disability suffered by him in the road accident there is a reduction in his income. In the absence of such evidence, there cannot be any modification of the income assessed by the Tribunal. He submits that award of compensation by the Tribunal on all other heads is just and proper and does not call for any interference. Hence, he seeks to dismiss the appeal.

¶34

I have heard the arguments of the learned

¶35

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

¶36

The only point that would arise for

¶37

consideration in this appeal is :

¶38

5 - NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶39

HC-KAR

¶40

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

¶41

The records indicate that the appellant-claimant

¶42

met with a road accident on 30.01.2017 and he was initially provided first aid treatment at Magadi Government Hospital and later he was shifted to Victoria Hospital, Bengaluru. The records also indicate that the appellant was in-patient for a period of 13 days. In order to substantiate the claim, the appellant examined himself as PW1; got examined Dr.S.Ramachandra as PW2, a doctor from Victoria Hospital, Bangalore and one Sri.Theertha Kumar N.L. as PW3 and got marked Exs.P1 to P9. The respondent examined RW1 and RW2 and got marked Exs.R1 to R6. The Tribunal, on appreciation of the evidence, awarded the total compensation of Rs.1,44,260/- with interest at the rate of 9% per annum.

¶43

The records indicate that the appellant has

¶44

sustained fracture of II open (Compound) fracture

¶45

6 - NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶46

HC-KAR

¶47

comminuted, distal radius, right forearm. PW2, an Orthopedic surgeon at Victoria Hospital, who has treated the appellant, has been examined and he has deposed before the Tribunal that the appellant was in-patient in the Victoria Hospital from 30.01.2017 to 11.02.2017 and he was diagnosed II open (Compound) fracture comminuted, distal radius, right forearm and he was operated of wound debridement closed reduction and fixation with ex-fix and 'K' wires for distal radius. Based on the treatment provided and the fracture suffered by the appellant-claimant, PW2 has opined that the petitioner has suffered permanent physical disability to an extent of 31.91% to the upper limb. Considering the same, the Tribunal assessed the disability at 10% to the whole body. In my considered view the said disability is required to be reassessed in view of the experts evidence on record. Hence, the disability is re-assessed at 13% to the whole body for the purpose of determination of compensation. Admittedly, the appellant has not produced any evidence with regard to the income.

¶48

7 -

¶49

NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶50

HC-KAR

¶51

Hence, his income is notionally assessed at Rs.11,000/-

¶52

per month placing reliance on the national income chart prepared by the KSLSA. The appellant was aged about 56 years as on the date of accident, hence, the appropriate multiplier would be 9, which has been rightly considered

¶53

by the Tribunal. Hence, the appellant is entitled to compensation under the head of loss of future income due to disability as under:

¶54

Rs.11,000 X 12 X 9 X 13% = Rs.1,54,440/-.

¶55

Having reassessed the income and disability and taking note of the fact that the appellant-claimant has undergone surgery and was in-patient for a period of 13 days in Victoria Hospital, Bangalore, 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 a compensation of Rs.45,000/- towards pain & suffering; Rs.20,000/- towards food, attendant, conveyance, nourishment and

¶56

8 - NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶57

HC-KAR

¶58

other incidental charges; Rs.33,000/- (Rs.11,000 X 3) towards the loss of income during laid-up period and Rs.40,000/- towards loss of amenities in life. The compensation awarded by the Tribunal towards medical expenses is unaltered. Thus, the appellant would be entitled to the modified compensation as under:

¶59

HEADS	AMOUNT (in Rs.)
Pain & suffering	45,000
Medical expenses	10,960
Food, attendant, conveyance, nourishment and other incidental charges	20,000
Loss of income during laid up period	33,000
Loss of future earning capacity due to disability	1,54,440
Loss of amenities in life	40,000
Total	3,03,400

¶60

Thus, the appellant-claimant shall be entitled to a

¶61

total compensation of Rs.3,03,400/- as against Rs.1,44,260/- awarded by the Tribunal.

¶62

In the result, this Court proceeds to pass the

¶63

following:

¶64

9 -

¶65

NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶66

HC-KAR

¶67

ORDER

¶68

a) Appeal is allowed in part .

¶69

b) The impugned judgment and award of the

¶70

Tribunal is modified to an extent that the appellant-claimant would be entitled to a total compensation of Rs.3,03,400/- as against Rs.1,44,260/- awarded by the Tribunal.

¶71

c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

¶72

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.

¶73

NC: 2026:KHC:14396 M.F.A. No.1556/2020

¶74