Sri. Venkatesh Vs the Managing Director

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.11.2017 PASSED IN MVC NO.3882/2016 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND XXXIII ACMM, MEMBER - MACT, BENGALURU (SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2026:KHC:14158 MFA No. 2720 of 2018

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HC-KAR

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THIS APPEAL, COMING ON FOR ORDERS, 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 by the injured/claimant seeking

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for higher compensation challenging the judgment and award dated 18.11.2017 passed in MVC.No.3882/2016 by VIII Addl. Small Causes Judge and the Motor Accident Claims Tribunal (SCCH-5) at Bengaluru (hereinafter referred to as the 'Tribunal' for short).

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Though, this appeal is listed for orders, with the

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

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3. Sri K.L.Sreenivas, learned counsel appearing for

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the appellant submits that the Tribunal has committed a grave error in ignoring the evidence of P.W.3, the treating doctor and failed to award any compensation under the head loss of income due to disability despite there being sufficient evidence before it. It is submitted that the

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HC-KAR

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Tribunal has erred in disbelieving the evidence of the claimant and on its own assumption awarded global compensation of Rs.1,50,000/-, which was grave injustice to the appellant/claimant. Hence, he seeks to reassess the compensation after appreciating the evidence available on record.

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Per contra, Sri F.S.Dabali, learned counsel appearing for the respondent-Corporation vehemently opposed the appeal and submitted that the question of assessing the disability of the appellant would not arise. The MRI report clearly indicates that the fracture suffered by the appellant is aligned and there is no disability. It is submitted that the appellant was only inpatient for a period of two days and taking treatment for such injuries cannot be termed as a disablement. Hence, he seeks to sustain the award of compensation by the Tribunal and dismiss the appeal.

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I have heard the arguments from both sides and meticulously perused the material available on record.

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HC-KAR

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

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The above point is answered in the “affirmative”

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for the following reasons:

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The appellant as well as the respondent-Corporation

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do not dispute that the appellant met with a road accident on 03.05.2016 and sustained lacerated wound and tibial spine fracture. The said injury and fracture is evident from Ex.P6-wound certificate and Ex.P7-discharge summary issued by Blossom Hospital. The records indicate that the appellant was inpatient for two days i.e., on 03.05.2016 and 04.05.2016. In order to prove the claim, the appellant examined himself as P.W.1 and examined other two witnesses as P.W.2 and P.W.3 and got marked documents as Ex.P.1 to Ex.P.24. The respondent-Corporation examined the driver as R.W.1 and got marked the documents as Ex.R.1 and Ex.R.2. The Tribunal assessed

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HC-KAR

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the compensation at Rs.1,50,000/- with interest at 9%

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p.a.

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It is to be noticed that the appellant claimed that he was working as a loader and unloader in TVS Company and was earning Rs.12,000/- per month and in support of his income, he has produced Ex.P.16-salary certificate. However, the employer has not been examined nor any corroborative evidence is placed to believe the income. In the absence of acceptable evidence, this Court notionally assess the income of the injured at Rs.9,500/p.m.

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It is to be noticed that the Tribunal disbelieved

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the oral testimony of P.W.3 solely on the ground that P.W.3 without assigning any proper reasons has assessed the disability to the extent of 30% to a particular limit. It is to be noticed that P.W.3 has assessed the disability on the higher side. However, it is not a case where the entire disability is required to be ignored. Taking note of the fractures suffered, nature of treatment provided and post

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HC-KAR

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treatment records, I am of the view that the interest of justice would be met if the disability is assessed at 5% to the whole body for the purpose of determination of compensation.

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The contention of learned counsel for respondent is that the radiology report indicates that there is alignment of fracture. But, it cannot be the sole basis to ignore the disability of the claimant. In view of the other evidence available on record, the said contention is rejected.

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Having reassessed the income and disability stated supra, the compensation is required to be worked out as under:

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Sl. No.	Description		Amount
1	Loss of income due disability	to	Rs.91,200/-
	Rs.9,500/-x12x16x5%
2	Pain and suffering		Rs.40,000/-
3	Loss of amenities		Rs.40,000/-

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NC: 2026:KHC:14158 MFA No. 2720 of 2018

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HC-KAR

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4 Attendant charges, food,
extra nourishment, Rs.15,000/-
conveyance charges etc.,
5 Loss of income during laid
up period
Rs.19,000/-
Rs.9,500/-x2 months
6 Medical expenses Rs.38,261/-
Total Rs.2,43,461/-

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In the result, the Court proceeds to pass the

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following:

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ORDER

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(i) Appeal is allowed in part .

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(ii) The impugned judgment and award of the Tribunal is modified to an extent that the claimant would be entitled to a total compensation of Rs.2,43,461/- as against Rs.1,50,000/- awarded by the Tribunal.

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

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HC-KAR

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(iv) Respondent-Corporation is directed to deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of 6(six) weeks from the date of receipt of certified copy of this judgment.

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(v) The disbursement of the compensation and deposit shall be as per the Tribunal.

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(vi) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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PB

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List No.: 1 Sl No.: 5

Sri. Venkatesh v. the Managing Director

Case brief

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Sri. Venkatesh v. the Managing Director

Case brief

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