Gurumurthy. G. R. Vs Vijaykumar a. Gajkosh

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.02.2023 PASSED IN MVC No.565/2021 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, SHIVAMOGGA, SIT AT SAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION 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 SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the appellant/claimant seeking enhancement of compensation awarded in judgment and award dated 17.02.2023 passed in MVC No.565/2021 by the V

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Additional District and Sessions Judge and Additional MACT, Shivamogga, sitting at Sagar.

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3 - NC: 2026:KHC:37504 MFA No. 8416 of 2023

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HC-KAR

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CNR: KAHC010670042023

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Even though the appeal is listed today for admission,

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it is taken up for disposal with the consent of learned counsel for appellant and learned AGA for respondent Nos.2 and 3.

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The appellant made a claim petition praying to award compensation for the injuries sustained by her in a road traffic accident occurred on 02.02.2021 contending that the accident occurred due to rash and negligent driving of the driver of 108 ambulance bus bearing Regn.No.KA-15-G-5459. The Tribunal after recording the evidence, appreciated the evidence and assessed the compensation and awarded compensation under various heads as under:

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Sl.No.	Heads	Amount in (Rs.)
01.	Towards loss of future income	1,80,000/-
02.	Towards pain and suffering	45,000/-
03.	Towards medical bills	71,966/-
04.	Towards hospital bills	3,540/-
05.	Final medical bill	1,22,000/-
06.	Towards blood bank bill	3,600/-
07.	Towards food, nutrition, special diet, attendant charges and other charges	35,000/-
08.	Towards ambulance bill	18,000/-
09.	Loss of income during laid off period	30,000/-

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4 - NC: 2026:KHC:37504 MFA No. 8416 of 2023

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HC-KAR

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CNR: KAHC010670042023

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10.	Towards future medical expenses	35,000/-
11.	Towards loss of amenities	30,000/-
	Total	5,02,110/-

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The Tribunal also awarded interest @ 6% p.a. from

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the date of petition till realization and directed respondent No.3 to deposit the award amount with interest. The claimant seeking enhancement of compensation has filed the present appeal.

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Heard learned counsel for the appellant and learned AGA for respondent Nos.2 and 3.

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Learned counsel for appellant would contend that

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Doctor who examined the claimant has stated that claimant is having 10% functional disability but the Tribunal erred in taking the disability at 4%. The claimant is an agriculturist and he has sustained injuries namely injury to right leg, right shoulder and chest and on x-ray found bones of right leg were fractured and clavicle bone of shoulder portion was cut and chest bones were also got cut. Considering the said injuries the compensation awarded for pain and suffering, loss of

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HC-KAR

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CNR: KAHC010670042023

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amenities, loss of income during laid up period are on lower side. The claimant has been admitted in the hospital for 37 days. With this he prayed to allow the appeal.

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Learned AGA for respondent Nos.2 and 3 would contend that the Tribunal by considering the evidence on record has rightly taken the disability at 4% and compensation awarded on all heads is just and proper and there are no grounds for enhancement. With this she prayed to dismiss the appeal.

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Having heard the learned counsels, the Court has perused the judgment, award and copies of Ex.P7 – wound certificate, Ex.P15 – disability certificate and deposition of PW.2.

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The appellant/claimant was doing agriculture as per Ex.P7 – wound certificate. He has sustained following injuries:

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(i) fracture of right tibia

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(ii) fracture of right clavicle

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HC-KAR

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CNR: KAHC010670042023

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(iii) multiple abrasions over face and extremities

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As per Ex.P15-disability certificate, the claimant has sustained Type 1 open fracture of right tibia at proximal 1/3^rd and middle 1/3^rd junction and closed fracture of clavicle at the junction of middle 1/3^rd and lateral 1/3^rd . He underwent surgery for the tibial injury. PW.2 is the Doctor who has examined the claimant and assessed the disability and gave opinion that claimant has sustained 10% permanent functional disability. The Tribunal has taken 1/3^rd of the same i.e. 4%. Considering the avocation of the claimant i.e. agriculturist and the injuries/fractures sustained by him, the functional disability as stated by the Doctor – PW.2 has to be taken into consideration. Therefore, the functional disability of the claimant is taken at 10%. The Tribunal has rightly taken the income of the claimant at Rs.15,000/- and applied multiplier ‘15’. In view of the above, the loss of future income is calculated as under:

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Rs.15,000 x 12 x 15 x 10% = 2,70,000/-

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HC-KAR

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CNR: KAHC010670042023

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The claimant has been admitted in the hospital for 37 days and considering the injuries sustained by the claimant, he is entitled to loss of income during laid up period for three months in a sum of Rs.45,000/- (Rs.15,000 x 3 months) as against Rs.30,000/- awarded by the Tribunal.

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Considering the injuries sustained by the claimant noted supra, the compensation awarded by the Tribunal for pain and suffering in a sum of Rs.45,000/- requires to be enhanced to Rs.1,00,000/- and loss of amenities awarded by the Tribunal in a sum of Rs.30,000/- requires to be enhanced to Rs.60,000/-. The claimant has been admitted in the hospital for 37 days and therefore, he is entitled to attendant charges, food and conveyance charges etc in a sum of Rs.37,000/- (Rs.1000 x 37 days). The Tribunal has rightly awarded medical expenses, ambulance bill and future medical expenses.

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In view of the above, the claimant is entitled to compensation under various heads as under:

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HC-KAR

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CNR: KAHC010670042023

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Sl.No.	Heads	Amount in (Rs.)
01.	Towards loss of future income	2,70,000/-
02.	Towards pain and suffering	1,00,000/-
03.	Towards medical bills	71,966/-
04.	Towards hospital bills	3,540/-
05.	Final medical bill	1,22,000/-
06.	Towards blood bank bill	3,600/-
07.	Towards food, nutrition, special diet, attendant charges and other charges	37,000/-
08.	Towards ambulance bill	18,000/-
09.	Loss of income during laid up period	45,000/-
10.	Towards future medical expenses	35,000/-
11.	Towards loss of amenities	60,000/-
	Total	7,66,106/-

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Considering the above aspects, the claimant is entitled to total compensation of Rs.7,66,106/- as against Rs.5,02,110/- with interest @ 6% p.a. from the date of petition till realization. Consequently, the claimant is entitled to enhanced compensation of Rs.2,63,996/- with interest @ 6% p.a. from the date of petition till realization. Respondent No.3 is liable to pay the said enhanced compensation with interest.

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In view of the above, the following:

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HC-KAR

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CNR: KAHC010670042023

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ORDER

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i) The appeal is allowed in part .

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ii) The appellant/claimant is entitled to enhanced compensation of Rs.2,63,996/- with interest @ 6% p.a. from the date of petition till realization.

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iii) Respondent No.3 shall deposit the enhanced amount with interest within a period of six weeks from this day, failing which, it is liable to pay interest @ 9% p.a. from this day till payment of enhanced compensation amount.

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iv) Appellant is entitled to release of entire enhanced compensation.

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v) Appellant is not entitled to interest for the delay period of 210 days in filing the appeal.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DKB,LRS

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List No.: 1 Sl No.: 45

Gurumurthy. G. R. v. Vijaykumar a. Gajkosh

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Gurumurthy. G. R. v. Vijaykumar a. Gajkosh

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