Sri Srinivasa Vs the Managing Director

THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.14.01.2022 PASSED IN MVC NO.3056/2019 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU, (SCCH-11), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2026:KHC:22397 MFA No. 8352 of 2024

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HC-KAR

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THIS APPEAL, COMING ON FOR ORDERS, 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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Heard the arguments of both sides.

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This appeal is filed by the appellant under

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Section 173(1) of Motor Vehicles Act, 1988, challenging the judgment and award dated 14.01.2022 passed in MVC No.3056/2019 by the I Additional Small Causes Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-11) (for short, 'the Tribunal') seeking enhancement of compensation.

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The injured claimant met with an accident on 18.02.2018 and filed a claim petition claiming compensation of Rs.25,00,000/-. The Tribunal, after considering the entire evidence on record granted an amount of Rs.9,12,855/- with interest at 9% per annum from the date of petition till realisation.

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HC-KAR

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Aggrieved by the said order, the claimant

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preferred this appeal and mainly contended that he sustained fracture injuries which are grievous in nature and was admitted in the hospital for a total period of 59 days in a span of one and half year. He examined the doctor, who assessed the permanent physical disability at 60% to the right lower limb and 30% to the whole body. It is further stated that the appellant was aged 27 years, engaged in labour and electrical work and earning Rs.15,000/- per month. The Tribunal did not grant any addition towards future prospects and awarded meager amounts under the other heads. Therefore, requested for enhancement of compensation.

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Though the appellant stated that he was earning Rs.15,000/- per month, no documentary proof has been produced. As the accident occured in the year 2018, the Tribunal has rightly considered his notional income as Rs.12,500/- per month, as per the chart prepared by the Karnataka State Legal Services Authority and the same is

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HC-KAR

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confirmed. The appellant was aged 29 years and the relevant multiplier is '17'.

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The appellant produced Ex.P-5-wound

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certificate and also three discharge summaries marked as Ex.P7 to Ex.P9, along with prescriptions and medical bills

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and examined a doctor as PW-2, who is an orthopaedic surgeon. He stated that the appellant sustained following injuries:

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i. Right femur supracondylar fracture (open type 3B)

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ii. Right leg both bone fracture (open type 3B)

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The appellant underwent external fixation, debridement, and fasciocutaneous flap cover.

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Subsequently, he underwent removal of the external fixator, LRS application, Ilizarov external fixator application, corticotomy, and later removal of LRS and Ilizarov fixators.

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The appellant complained of pain in the right lower limb, inability to squat on the floor, difficulty in climbing

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HC-KAR

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stairs, walking on slopes, kneeling, and sitting crosslegged, along with deformity of the right lower limb with multiple scars. Radiological examination showed malunited fractures of the right supracondylar femur and both bones of the right leg. The doctor assessed permanent physical

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disability at 60% to the right lower limb, which corresponds to 30% of the whole body.

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In the cross-examination, he admitted that he was not the treated doctor and that he had not given any estimation of future medical expenses.

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Learned counsel for the respondent contended that one-fourth disability should be taken instead of onethird and that the disability assessed by the Tribunal is on the higher side.

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Admittedly, this is a case of malunion. The Tribunal has rightly considered one-third disability, and no

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appeal has been filed by the Insurance Company challenging the same. Therefore, this Court finds it appropriate to confirm the disability taken by the Tribunal.

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HC-KAR

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As the functional disability is taken at 20%, the appellant is entitled to future prospects in terms of MFA No. 103807/2016 c/w 103835/2016 (New India Assurance Co. Ltd. vs. Abdul S/o Mehaboob Tahasildar and Others) . The appellant was aged 29 years and is entitled for 40% towards future prospects. Accordingly, the loss of future earning capacity comes to Rs.12,500/- + 40% × 12 × 17 × 20% = Rs.7,14,000/-.

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The Tribunal awarded Rs.3,02,255/- towards medical expenses based on the records, and the same is confirmed.

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The appellant was admitted in the hospital for a period of 59 i.e., nearly two months. Considering the nature of injuries, period of hospitalisation, his occupation and other relevant factors, this Court finds it reasonable to grant an amount of Rs.60,000/- towards pain and suffering, Rs.30,000/- towards loss of amenities and Rs.30,000/- towards transportation, extra nourishment and attended charges. The appellant might not have

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HC-KAR

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attended any other work at least for a period of 4 months Rs.50,000/-(12,500 x 4) is awarded towards loss of income during the laid-up period.

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Thus, the compensation awarded by this Court

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is as follows:

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Particulars	Amount in Rs.
Loss of future earning capacity	7,14,000.00
Medical expenses	3,02,255.00
Pain and suffering	60,000.00
Loss of amenities	30,000.00
Transportation, extra nourishment and attendant charges	30,000.00
Loss of income during laid- up period	50,000.00
Total	11,86,255.00

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In summary, the appellant/claimant is entitled to a total compensation of Rs.11,86,255/- as against Rs.9,12,855/- awarded by the Tribunal. The enhanced compensation works out to Rs.2,73,400/-. To this extent,

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the award passed by the Tribunal is modified.

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In the result, pass the following:

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HC-KAR

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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 14.01.2022 passed in MVC No.3056/2019 by the I Additional Small Causes Judge and Motor Accident Claims Tribunal, Bangalore (SCCH-11), is hereby modified;

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iii. The appellant-claimant is entitled to enhanced compensation of Rs.2,73,400/with interest at the rate of 6% per annum from the date of petition till its realization.

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iv. Respondent/Insurance Company has already deposited the awarded amount before the Tribunal. Therefore, Insurance Company is directed to deposit enhanced compensation of Rs.2,73,400/with interest rate of 6% within one month from the date of this order.

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