Chand Pasha Vs Jagadeesha K

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.4.2015 PASSED IN MVC NO.52/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGARA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 10.04.2015 passed in MVC No.52/2011 on the file of the Additional Senior Civil Judge, Ramanagara, seeking enhancement of the compensation.

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HC-KAR

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NC: 2026:KHC:36859 MFA No. 6881 of 2015

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CNR: KAHC010400942015

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Heard the arguments of learned counsel for both

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sides. The ranks of the parties are retained as per Tribunal for the sake of convenience.

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The petitioner/injured claimant met with an accident on 24.11.2010 and filed petition before the Tribunal for compensation of Rs.5,00,000/-. The Tribunal considering the entire evidence on record granted an amount of Rs.1,02,861/- with interest at the rate of 6% p.a., from the date of filing the petition till the date of realization.

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Aggrieved by the said order, this appeal is filed and mainly contended that PW.3-doctor assessed the disability of the petitioner/injured at 33% to the limb and 11% to the whole body. It is stated that the petitioner/injured was a scrap merchant by profession, had to travel long distances by using bicycle and it is difficult for him to travel by using his left ankle joint. But the Tribunal, instead of taking the disability as 33%, has erroneously taken only 8%. It is further stated that he was doing a scrap business and earning a sum of Rs.12,000/- per month. As per Ex.P.9, there is non-union of fracture. The Tribunal has taken his income as Rs.4,500/- per month, which

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HC-KAR

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CNR: KAHC010400942015

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is on the lower side. The petitioner incurred more than Rs.50,000/- towards medical expenses. The amount granted by the Tribunal under other heads is meagre. The interest is to be granted at the rate of 12% per annum. Therefore, requested for enhancement of the compensation.

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Learned counsel for the respondents stated that the doctor has assessed the disability as 33% and only 11% disability is to be considered by this Court.

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Though the petitioner stated that he was earning Rs.12,000/- per month, he has not filed any income proof. As he met with an accident in the year 2010, his notional income is to be taken as Rs.5,500/- per month, as per the chart prepared by the Karnataka State Legal Services Authority. The petitioner was aged 46 years and the relevant multiplier is '13'. The petitioner/injured has filed Ex.P.7-wound certificate, Ex.P.12-discharge summary and also examined the doctor as PW.3, who is an orthopedic surgeon. PW.3 stated that the petitioner sustained bimalleolar fracture of the left ankle joint and was treated at Government Hospital, Ramanagara. He was treated conservatively and referred to higher centre. PW.3

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HC-KAR

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NC: 2026:KHC:36859 MFA No. 6881 of 2015

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CNR: KAHC010400942015

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assessed the disability of the limb as 33% and whole body disability as 11%.

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Learned counsel for the appellant stated that in the cross-examination it was clearly mentioned that there is nonunion of fracture. Considering the medical evidence and also the fact that there is non-union fracture, this Court finds it reasonable to take one third of the disability as 11% (33x1/3). Accordingly, the loss of future earning capacity comes to Rs.94,380/- (5,500x12x13x11%). The petitioner/injured was admitted in the hospital for a period of four days. Considering the nature of injuries, period of hospitalization and other relevant factors, this Court finds that it is just and reasonable to grant an amount Rs.50,000/- towards pain and suffering,

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Rs.30,000/- towards loss of amenities and Rs.30,000/- towards transportation, extra nourishment and attendant charges. The petitioner might not have attended any other work at least for a period of four months. Therefore, a sum of Rs.22,000/- (5,500 × 4) is awarded under the head loss of income during the laid-up period. The Tribunal already granted

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HC-KAR

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CNR: KAHC010400942015

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a sum of Rs.5,201/- towards medical expenses and the said amount is confirmed.

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Thus in all, compensation awarded by this Court is

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as below:

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	50,000/-
2	Towards medical expenses	5,201/-
3	Towards transportation, extra nourishment and attendant charges	30,000/-
4.	Towards loss of amenities	30,000/-
5	Towards loss of income during the laid up period	22,000/-
6	Towards loss of future earning capacity	94,380/-
	Total	2,31,581/-

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Hence, the appellant-claimant is entitled for a total compensation of Rs.2,31,581/- along with interest at the rate of 6% p.a.

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In the result, the following order is passed:

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HC-KAR

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CNR: KAHC010400942015

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 10.04.2015 passed in MVC No.52/2011 on the file of the Additional Senior Civil Judge, Ramanagara, is modified.

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iii. The claimant is entitled to a sum of Rs.2,31,581/- along with interest at 6% p.a., from the date of petition till the date of realization, instead of Rs.1,02,861/- granted by the Tribunal.

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iv. Respondent No.2/Insurance Company has already deposited the award amount before the Tribunal. Therefore, respondent No.2/Insurance Company is directed to deposit enhanced compensation of Rs.1,28,720/- along with the interest at the rate of 6% within one month from the date of this order.

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HC-KAR

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