Yunus Khan @ Yunasa Khan Vs Ramappa v Munenakoppa

RAMAPPA V MUNENAKOPPA S/O VEERAPPA AGED ABOUT 62 YEARS Digitally signed RETD EMPLOYEE, R/O NWC 157/AB by PANKAJA S BHADRAVATHI, OWNER OF SANTRO GLS CAR Location: HIGH BEARING REG NO. KA-02/MG-0114 COURT OF KARNATAKA

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SHIVAKUMAR B M S/O BASAVARAJA AGED ABOUT 25 YEARS STUDENT, R/O NWC 157/AB NEW COLONY BHADRAVATHI, DRIVER OF SANTRO GSL CAR BEARING NO.KA-02-/MF-0114 D.L. NO. KA-14 20140009691 (VALID TILL 2.9.2034)

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UNITED INDIA INSURANCE CO. LTD B.H. ROAD, SHIVAMOGGA

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2 -

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NC: 2026:KHC:26665 MFA No. 4871 of 2020

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HC-KAR

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POLICY NO. 2404023115P111138681 VALID UPTO 23.12.2016

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…RESPONDENTS

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(BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R3, R1 - RAMAPPA V MUNENAKOPPA AND R2 - SHIVAKUMAR B.M ARE SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.10.2019 PASSED IN MVC NO.152/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITONAL M.A.C.T., VI, SHIVAMOGGA, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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The claimant, being dissatisfied with the compensation of Rs.2,80,000/- awarded by the Tribunal and challenging the

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contributory negligence attributed on him, is in appeal.

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The fact that the accident occurred and the further fact

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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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3 - NC: 2026:KHC:26665 MFA No. 4871 of 2020

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HC-KAR

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Sl. No.	Particulars	Amount in (Rs.)
1.	Pain and sufferings	40,000
2.	Loss of income	30,000
3.	Medical expenses	1,00,000
4.	Future medical expenses	40,000
5.	Loss of income during the laid up period	-
6.	Conveyance, food, nourishment, attendant charges	20,000
7.	Loss of amenities in life and permanent disability	50,000
	Total	2,80,000

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The primary contention of the learned counsel for the

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appellant is that the Tribunal has wrongly attributed negligence on the claimant for the accident. According to him, though the charge sheet has been filed against the driver of the offending vehicle, the Tribunal has erred in fixing 25% contributory negligence on the part of the claimant without any evidence. He has also contended that the amount awarded by the Tribunal under all the heads is meager and the same requires to be enhanced. Accordingly, he prays to allow the appeal.

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4 - NC: 2026:KHC:26665 MFA No. 4871 of 2020

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HC-KAR

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Per contra , learned counsel for the Insurer contended that the Tribunal has rightly held that the claimant has also contributed to the accident due to his negligence. According to him, the sketch - Ex.D1 and other documents clearly depict that the accident has occurred due to the negligence of the claimant and as such, the Tribunal has rightly attributed negligence at 25% on the part of the claimant. He further contended that the Tribunal based on the evidence has rightly awarded the sums under different heads and the same do not require any enhancement. Accordingly, he prays to dismiss the appeal.

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As could be gathered from the evidence on record and on careful perusal of Ex.D1, it is seen that the accident has occurred on the extreme right side of the road. Undisputedly, the offending vehicle was proceeding in Umblebyle main road, whereas, the claimant came from the opposite direction on the extreme left side of the road. In such circumstances, it could be gathered that the accident has caused solely due to the negligence of the offending vehicle. Even otherwise, the Police, after investigation, laid a charge sheet against the driver of the

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5 - NC: 2026:KHC:26665 MFA No. 4871 of 2020

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HC-KAR

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offending vehicle. The same was not challenged by the Insurance Company. In such circumstances, I am of the considered opinion that the Tribunal has erred in attributing the contributory negligence at 25% on the claimant. As such, it is held that the Insurer is liable to make good the entire compensation amount.

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As regards the quantum of compensation is concerned, the Tribunal, on an analysis of the medical evidence, has concluded that the claimant has suffered permanent disability to the extent of 6% to the whole body.

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I have perused the evidence of the Doctor - PW.2 and the wound certificate. The same depicts that the claimant has suffered following injuries:

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i) comminuted fracture of lower third of left femur, fracture of left clavicle.

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ii) cut lacerated wound over right heel and cut lacerated wound over the left ear;

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iii) cut and lacerated wound over left leg;

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iv) tenderness, deformity and restricted movements at left thigh and left shoulder.

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HC-KAR

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Since the Doctor has assessed the disability at 20%, it would be just and appropriate to assess the disability at 7%. Accordingly, the disability suffered by the claimant would be at 7%.

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The Tribunal has determined the monthly income, notionally at Rs.10,000/-. Since there is no credible documentary evidence to ascertain the actual monthly income, it would be appropriate and prudent to adopt the monthly income determined by Karnataka State Legal Services Authority, which, for the accident of the year 2016, would be Rs.9,500/-.

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As the claimant was aged 32 years, a multiplier of '16' would have to be applied. Consequently, the claimant would be entitled to a sum of Rs.1,27,680/- (9,500 x 12 x 16 x 7%) towards 'loss of future income'. However, the Tribunal without assessing the loss of future income, has awarded a sum of Rs.30,000/- as " loss of income "

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As a consequence, the claimant would be entitled to a sum of Rs.28,500/- (9,500 X 3 months) towards 'loss of income during the laid up period' .

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HC-KAR

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Having regard to the injuries suffered by the claimant, the claimant would be entitled to a sum of Rs.50,000/- towards 'pain and suffering' as against Rs.40,000/- awarded by the Tribunal.

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Having regard to the expenses incurred towards surgery for removal of implant, the claimant would be entitled to a sum of Rs.50,000/- towards future medical expenses, as against the sum of Rs.40,000/- awarded by the Tribunal.

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The sums awarded under other heads namely loss of amenities, medical expenses and food and conveyance charges by the Tribunal being just and proper, do not require any enhancement.

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Consequently, the award of the Tribunal is modified and

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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	40,000	50,000
2.	Loss of future income	30,000	1,27,680

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HC-KAR

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3.	Medical expenses	1,00,000	1,00,000
4.	Future medical expenses	40,000	50,000
5.	Loss of income during the laid up period	-	28,500
6.	Conveyance, food, nourishment, attendant charges	20,000	20,000
7.	Loss of amenities in life	50,000	50,000
	Total	2,80,000	4,26,180

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Thus, the claimant is held entitled to the total compensation of Rs.4,26,180/- as against Rs.2,80,000/-, along with interest at the rate of 6% per annum from the date of petition till its realization.

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The Insurance Company is liable to make good the entire compensation. Accordingly, it is directed to deposit the entire amount of compensation awarded within six weeks from the date of receipt of a certified copy of this judgment.

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The appeal is accordingly allowed in part .

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SD/(RAJESH RAI K) JUDGE

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PKS/List No.: 1 Sl No.: 74

Yunus Khan @ Yunasa Khan v. Ramappa v Munenakoppa

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Yunus Khan @ Yunasa Khan v. Ramappa v Munenakoppa

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