Sri Kishore T Vs the Tata Aig General Insurance Co. Ltd.

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 18.11.2019 PASSED IN MVC NO.3433/2018 ON THE FILE OF THE MEMBER, MACT, C/c XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU CITY, 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:

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

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ORAL JUDGMENT

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This appeal is filed by the injured-claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 18.11.2019 passed in MVC.No.3433/2018 by the Member, MACT, XIII Additional Judge, Court of Small Causes, Bengaluru, (for short, ‘Tribunal’).

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HC-KAR

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Though this appeal is listed for admission, with

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

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Sri.Yogesha G.K., learned counsel for the appellant submits that the Tribunal has committed a grave error in recording the finding with regard to the contributory negligence of the appellant by ignoring the charge sheet material and without assigning any reasons. Hence, he seeks to reverse the said finding. It is submitted that the Tribunal has not awarded any compensation under the head of loss of income due to disability by ignoring the evidence of Doctor-PW3 and other medical evidence on record. It is further submitted that the Tribunal has awarded meager compensation on all other heads, hence he seeks to enhance the compensation appropriately by allowing this appeal.

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Per contra, Sri.Janardhan Reddy, learned

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counsel for the respondent No.1 supports the impugned

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HC-KAR

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judgment and award of the Tribunal and submits that the accident in question is a head on collision and considering the said aspect, the Tribunal has recorded a clear finding and held that the appellant has contributed to the accident to an extent of 15%. The said finding is based on the evidence available on record and the same does not call for any interference. It is submitted that insofar as the award of compensation under the head of loss of future income due to disability is concerned, the same would not arise as the petitioner-claimant himself has admitted in his evidence that he continued with the same job even after the accident and in view of the said evidence, there cannot be any compensation under the aforesaid head. Hence, he seeks to dismiss the appeal.

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I have heard the arguments of the learned counsel appearing on both the sides and meticulously perused the material available on record including the Tribunal records.

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HC-KAR

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It is not in dispute that the appellant-claimant

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met with a road accident on 06.06.2018 and suffered a fracture of laceration shaft right femur and lacerated wound over knee, which is evident from the discharge summary as per Ex.P10 issued by Shekhar Hospital, Bengaluru, as well as wound certificate Ex.P5. The Doctor has assessed the disability of the claimant-injured at 14% to the whole body. The Tribunal declined to grant any compensation under the head of loss of income due to disability on the ground that the appellant-claimant has failed to prove before the Tribunal that he has lost the employment due to disability suffered in the aforesaid road accident. The Tribunal recorded the finding in detail at para No.17 to decline the compensation towards loss of future income due to disability, I do not find any error in the said finding.

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Insofar as the contributory negligence is concerned, the Tribunal has recorded the finding at para No.12 that the appellant was negligent and contributed to

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HC-KAR

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the accident to an extent of 15%. The perusal of the said reasoning at para No.12 of the impugned judgment are not satisfactory, the said reasoning by the Tribunal is without any basis and contrary to the evidence on record. It is not in dispute that the Police, after investigation, filed

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a charge sheet against the driver of the autorikshaw, which was insured with the respondent-insurance company. Without any evidence of contributory negligence by the appellant-claimant, the Tribunal jumped to a conclusion that the appellant was negligent and contributed to the accident to an extent of 15%, but the same is without any basis and the same is required to be interfered in this appeal and accordingly the said finding on contributory negligence of the appellant-claimant is set aside.

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It is to be noticed that the appellant was aged

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about 19 years at the time of accident. The doctor has assessed the disability of the claimant at 14% and he was in-patient for a period of 3 days, considering the said

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HC-KAR

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aspects, I am of the considered view that the compensation is required to be re-assessed appropriately. Hence, the appellant would be entitled to compensation of Rs.40,000/- towards pain & suffering; Rs.15,000/- towards food, nourishment, conveyance and attendant charges; Rs.37,500/- (Rs.12,500 X 3) towards loss of income during the laid up period. The compensation awarded by the Tribunal towards medical expenses, loss of amenities and future medical expenses remain unaltered. Thus, the appellant would be entitled to the modified compensation as under:

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HEADS	AMOUNT (in Rs.)
Pain & suffering	40,000
Food, nourishment, conveyance and attendant charges	15,000
Medical expenses	1,03,000
Loss of income during laid up period	37,500
Loss of amenities	75,000
Future medical expenses	10,000
Total	2,80,500

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HC-KAR

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Thus, the appellant-claimant shall be entitled to a total compensation of Rs.2,80,500/- as against Rs.2,48,000/- awarded by the Tribunal.

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In the result, this Court proceeds to pass the following:

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ORDER

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a) Appeal is allowed in part .

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b) The impugned judgment and award of the

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Tribunal is modified to an extent that the appellant-claimant would be entitled to a total compensation of Rs.2,80,500/- as against Rs.2,48,000/- awarded by the Tribunal.

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