Sri M a Madhusudana Vs Sri Krishnappa

THE MANAGER, UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE NO.18, 5TH FLOOR, KRISHI BHAVAN, OPP HUDSON CIRCLE, NRUPATHUNGA ROAD, BANGALORE - 560 001.

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…RESPONDENTS

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(BY SRI. K NAGARAJAIAH., ADVOCATE FOR R2; V/O/D 11.09.2024 NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2019 PASSED IN MVC NO.5852/2018 ON THE FILE OF THE MEMBER, MACT, XVI

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HC-KAR

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ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU SCCH-14, 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 appellant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 03.12.2019 passed in MVC.No.5852/2018, by the Motor Vehicles Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'Tribunal') for enhancing the compensation.

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Heard the arguments of the learned counsel Sri.Kailash Shankar.P.B, appearing for the appellant and learned counsel K.Nagarajaiah, appearing for respondent No.2. Notice to respondent No.1 is dispensed with vide order dated 11.09.2024.

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Learned counsel appearing for the appellant submits that the Tribunal has erred in fastening 15%

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HC-KAR

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liability on the injured by recording the finding that the injured-claimant has contributed to the accident by ignoring the cross-examination of the RW.1, who was the driver of the offending vehicle. Hence, he seeks to saddle the entire negligence and liability on the TATA Ace goods vehicle which was involved in the accident and consequently direct the insurer to indemnify such negligence by paying the compensation. It is submitted that the income assessed by the Tribunal is on a lower side and award of compensation under all other heads including the assessment of disability is required to be reassessed by considering the oral evidence of PW.2 and other documentary evidence on record. Hence, he seeks to allow the appeal.

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Per contra, learned counsel appearing for respondent No.2 supports the impugned judgment and the award of the Tribunal and submits that the claimant has failed to produce the spot sketch before the Tribunal. Hence, the Tribunal has clearly recorded the finding with

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HC-KAR

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regard to negligence, which does not call for any interference. It is submitted that the appellant has not produced any evidence with regard to his income and disability. Therefore, the same assessed by the Tribunal is

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just and proper which also does not call for any interference. He further submits that the award of compensation on all other heads is also fair and proper and does not call for any enhancement. Hence he seeks to dismiss the appeal.

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I have heard the arguments of learned counsel for the appellant and learned counsel for respondent No.2 and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced.

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The only point that arises for consideration in this appeal is :

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"whether the impugned judgment and award of the Tribunal calls for any interference?"

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HC-KAR

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The aforesaid point is answered in the affirmative

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for the following reasons:

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The material on record would indicate that the petitioner on 11.09.2018 was proceeding on Motor cycle bearing registered No.KA-08-W-4423. At that time, driver of a Tata Ace vehicle bearing registration No.KA-07-A-4423 drove the same in a rash and negligent manner, dashed Motor cycle, which resulted in grievous injuries to the appellant. The Tribunal considering the oral and documentary evidence has recorded a clear finding with regard to the negligence that the rider of the Motor cycle has contributed to the accident to the extent of 15%. The Tribunal from paragraph Nos.16 to 20 has recorded detailed findings with regard to the aspect of negligence. It is to be noticed that, though RW.1 has deposed before the Tribunal that to avoid a pitch, he took his Tata Ace vehicle slightly towards the right side, that itself cannot be a basis to come to conclusion that the driver of Tata Ace vehicle was solely responsible for the accident in question.

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HC-KAR

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The material on record clearly indicates that the appellant was riding a Motor cycle and overtook the bus without proper care and proceeded further and dashed the Tata Ace vehicle which resulted in the accident. Taking note of the material available on record, the Tribunal recorded the finding on negligence, which is just and proper and does not call for any interference.

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Insofar as the quantum of compensation is concerned, the Tribunal assessed the income of the injured at Rs.8,000/-. It is not in dispute that the injured-claimant has made averment in the claim petition

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that he is a mason by vocation and was earning Rs.15,000/- prior to the accident. However, no evidence to that effect was placed before the Tribunal. In the absence of proof of income this Court notionally assessed the income of the injured at Rs.12,500/- per month. It is to be noticed that PW.2 is not a treating doctor. However, based on examination of the claimant document and medical records, this Court is of the opinion that the claimant has

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HC-KAR

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suffered 33% disability to the particular limb and 11% disability to the whole body. Considering the oral evidence of PW.2 and other medical records and taking note of the injuries suffered by the claimant and the treatment provided to him, I am of the considered view that the interest of justice would be met, if the disability is reassessed at 10% to the whole body for the purpose of determination of the compensation.

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Having reassessed the income and disability

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supra , the compensation is required to be reassessed and the same is reassessed as under:

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Particulars	Amount in Rs.
Pain and Sufferings	40,000.00
Food, nourishment, conveyance and attendant charges	15,000.00
Medical Expenses	68,000.00
Loss of Future earning due to permanent disability (12,500x12x18x10%)	2,70,000.00
Loss of amenities	30,000.00
Loss of income during the laid up period (12,500x3)	37,500.00
Total	4,60,500.00

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HC-KAR

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Hence, the compensation is enhanced from

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Rs.2,90,240/- to Rs.4,60,500/-.

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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 03.12.2019 passed in MVC.No.5852/2018

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by the Court of Motor Vehicles Accident Claims Tribunal, Bengaluru is modified;

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iii. The claimant is entitled to a sum of Rs. 4,60,50 0/- as against Rs.2,90,240/along with an interest at 6% per annum from the date of petition till the date of realization;

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iv. The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within

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HC-KAR

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a period of six weeks from the date of receipt of certified copy of this judgment;

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v. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay;

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vi. Draw award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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KVR

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List No.: 1 Sl No.: 38

Sri M a Madhusudana v. Sri Krishnappa

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Sri M a Madhusudana v. Sri Krishnappa

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