Padmashree Vs the Managing Director

NEW INDIA ASSURANCE CO LTD DIVISIONAL OFFICE, 4^TH FLOOR FORTUNE OPP. ATHENE HOSPITAL AVERY JUNCTION, FALNIR, MANGALORE DAKSHINA KANNADA DISTRICT-575001.

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…RESPONDENTS

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(BY SMT. GEETHA RAJ, ADVOCATE FOR R1: NOTICE TO R1 IS DISPENSED WITH V/O DATED: 01.02.2023)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 21.09.2019 PASSED IN MVC NO.658/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER AMACT, XI D.K.MANGALURU, SITTING AT PUTTUR, PARTLY

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2 - NC: 2026:KHC:33971 MFA No. 2479 of 2020

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HC-KAR

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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 RAJESH RAI K

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ORAL JUDGMENT

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The claimant, being dissatisfied with the

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compensation of Rs.1,23,126/- awarded by the Tribunal, is in appeal.

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The fact that the accident occurred and the further fact that the offending vehicle was insured, is not in dispute.

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The Tribunal, on assessment of evidence, has awarded the following sums as compensation:

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Sl. No.	Particulars	Amount in (Rs.)
1	Pain and sufferings	25,000
2	Medical expenses	25,126
3	Loss of income during laid up period	25,000
4	Special diet nutrition and attendants charges	8,000

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HC-KAR

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5	Traveling expenses	10,000
6	Future medical expenses	20,000
7	Loss of amenities in life	10,000
	Total	1,23,126

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It is the primary contention of the learned counsel

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appearing for the appellant-claimant that the Tribunal has erred in not granting any compensation on the head of ‘future loss of income’ for the reason that the claimant failed to place any records to show that due to the injuries and disability, her earning capacity was reduced. By placing reliance on the evidence of PW2, the doctor, and Ex.P14, the Disability Certificate, he submits that the claimant has sustained 15% permanent disability and the same was stated in the testimony of PW2. He also contends that in the other heads, the Tribunal has awarded a meager compensation. As such, he prays to allow the appeal by enhancing the compensation on all the heads.

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HC-KAR

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Per contra , learned counsel appearing for the respondent No.2-Insurance Company by supporting the impugned award, submitted that the Tribunal upon appreciation of the entire evidence on record has awarded just and reasonable compensation. According to her, since the claimant is engaged in the work of counseling, she failed to demonstrate that due to the accident or the disability, she lost the earning capacity or the same was reduced. In such circumstances, as per the disability certificate and the wound certificate, the nature of injuries will not come in the way of continuing her work. As such, the Tribunal is justified in not awarding any compensation on the account of ‘future loss of income’. Further, the compensation awarded by the Tribunal under other heads are just compensation. Hence, she prays to dismiss the appeal.

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Heard the learned counsel for the claimant and

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learned counsel for the Insurance Company.

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HC-KAR

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Having given my anxious consideration both on the

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submission and on perusal of the entire materials on record, the accident in question and the coverage of the insurance policy to the offending vehicle, are not in dispute. The only point for consideration in this appeal is with regard to enhancement of the compensation.

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PW2, the doctor, in his evidence has stated that the petitioner has sustained 15% disability to a particular limb. No doubt, the said doctor is not a treated doctor. The Tribunal has opined that due to the injuries, the earning capacity of the claimant was not reduced. However, the evidence of the claimant, PW1, clearly depicts that due to the injuries, she is unable to carry weight and to perform her daily routine activities. As such, the same has caused adverse effect on her earning capacity. The said evidence of the claimant was not discarded by the Insurance Company by placing any relevant evidence or material before the Tribunal. In such circumstances, the evidence of PW1 remains unchallenged. In my considered view, the

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HC-KAR

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Tribunal has erred in not awarding any compensation on the account of 'future loss of income'.

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The accident is of the year 2015. Since the petitioner has failed to place any authenticated or reliable documents to prove the income, it is appropriate to take the notional income as per the Karnataka State Legal Services Authority i.e. Rs.9,000/- per month. The injured was aged 41 years. The appropriate multiplier would be ‘14’. PW2's evidence depicts that the claimant sustained 15% permanent disability and one-third of the same has to be considered as whole body disability for the purpose of determining compensation under the head of 'future loss of income’, which comes to 5%. Thus, on the head of 'future loss of income', the petitioner is entitled for a sum of Rs.75,600/- (Rs.9,000 x14x12x5%).

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The Tribunal has awarded compensation of Rs.25,000/- on the head of ‘pain and sufferings’. Considering the nature of injuries sustained and long

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NC: 2026:KHC:33971 MFA No. 2479 of 2020

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HC-KAR

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standing effect of the injuries, the same has to be enhanced to Rs.40,000/- .

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The Tribunal has awarded Rs.25,126/- towards ‘medical expenses’, which is based on the medical bills produced by the claimant. Hence, the same has to be retained.

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The Tribunal has awarded Rs.25,000/- under the head of ‘loss of income during the laid-up period’. The nature of injuries suggests that claimant must have been under rest and treatment for a period of 3 months. Thus, the claimant is entitled to a sum of Rs.27,000/- (Rs.9,000 x3 months) under the said head.

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The compensation of Rs.8,000/- awarded by the Tribunal under head of ‘special diet, nutrition and attainment charges’ and Rs.10,000/- under the head of ‘traveling expenses’ remain unaltered as the same are proper and adequate.

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HC-KAR

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Under the head of ‘future medical expenses’, the

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Tribunal has awarded Rs.20,000/-. By considering the evidence of doctor, the same has to be enhanced to another Rs.10,000/- i.e., Rs.30,000/- .

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The compensation under the head of 'loss of amenities' is concerned, the Tribunal has awarded Rs.10,000/-. Considering the nature and injuries and other aspects, the same has to be enhanced to another Rs.15,000/- i.e., Rs.25,000/-.

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Thus, the claimant would be entitled to the following compensation:

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Sl. No.	Compensation under different Heads	As awarded by the Tribunal	As awarded by this Court
		(Rs.)	(Rs.)
1	Pain and sufferings	25,000	40,000
2	Medical expenses	25,126	25,126
3	Loss of income during laid up period	25,000	27,000
4	Special diet nutrition	8,000	8,000

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HC-KAR

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	and attendants charges
5	Traveling expenses	10,000	10,000
6	Future medical expenses	20,000	30,000
7	Loss of amenities in life	10,000	25,000
8	Future loss of income	0	75,600
	Total	1,23,126	2,40,726

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In the result, the following order is passed:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment and award of the Tribunal is modified. c) The claimant is entitled to a total compensation of Rs.2,40,726/- as against Rs.1,23,126/- awarded by the Tribunal.

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d) In view of judgment of the Division Bench of this Court in the case of Ms.Joyeeta Bose and others –

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v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on

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HC-KAR

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24.8.2020), the enhanced compensation shall carry

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interest at 6% per annum.

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e) The Insurance Company is directed to deposit the compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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Sd/(RAJESH RAI K) JUDGE

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HA

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LIST NO.: 1 SL NO.: 35

Padmashree v. the Managing Director

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Padmashree v. the Managing Director

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