Laxmana Vs Kanchikere Gonappa

THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.06.08.2019 PASSED IN MVC NO.491/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, JMFC, VI MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 873/2020

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BETWEEN:

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LAXMANA S/O. HANUMANTHAPPA AGED ABOUT 51 YEARS AGRICULTURIST, ANGODU VILLAGE TALUK AND DISTRICT DAVANAGERE.

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...APPELLANT

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(BY SRI MARUTHI G.B., ADVOCATE)

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AND:

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KANCHIKERE GONAPPA S/O. HANUMANTHAPPA OWNER OF TRACTOR BEARING NO.KA-17/TB3109 UCCHANGIDURGA VILLAGE TALUK HARAPANAHALLI.

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DIVISIONAL MANAGER IFFCO TOKIYO GENERAL INSURANCE CO. LTD., KUVEMPU NAGARA, LAYER ROAD DAVANAGERE - 577 002.

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...RESPONDENTS

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(BY SRI D. VIJAYAKUMAR., ADVOCATE FOR R2;

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V/O/D.21.08.2025, SERVICE OF 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 06.08.2019 PASSED IN MVC NO.492/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI and HON'BLE MS. JUSTICE TARA VITASTA GANJU

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ORAL JUDGMENT

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(PER: HON'BLE MS. JUSTICE TARA VITASTA GANJU)

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1. The two appeals filed before this Court being M.F.A No.862/2020 and M.F.A. No.873/2020 arise out of a common judgment and award dated 06.08.2019 in M.V.C.Nos.491/2018 and 492/2018 passed by the II Additional Senior Civil Judge and J.M.F.C., Davanagere (hereinafter referred to as the ‘Impugned Award’). M.V.C. No.491/2018 relates to M.F.A.No.862/2020 while M.V.C. No.492/2018 relates to M.F.A. No.873/2020. By the Impugned Award, the learned Tribunal in M.V.C. No.491/2018 awarded Rs.2,66,350/-, the award in

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M.V.C.No.492/2018 was Rs.1,90,140/-. Interest at the

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rate of 9% per annum from the date of petition till the

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date of deposit was awarded in both matters.

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2. Although these matters are listed for admission today, with the consent of the parties, these appeals are taken up for hearing and final disposal today itself.

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3. The brief facts are that the appellants / claimants in both cases were riding on a motorcycle on 05.01.2018 near Ucchangi Durga, when the driver of tractor bearing registration No.KA.17/TB-3109 stated to be driving in a rash and negligent manner hit the motorcycle. As a result of the accident, both claimants fell from the motorcycle sustained injuries and were required to be hospitalized.

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3.1. Two separate claim petitions were filed by the petitioners before the Tribunal. It was stated by petitioner in M.V.C. No.491/2018 (hereinafter referred to as petitioner No.1) that he was undertaking agricultural activities and earning Rs.20,000/- per month while the petitioner in M.V.C. No.492/2018 (hereinafter referred to

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as petitioner No.2) also stated that he was earning Rs.20,000/- per month by doing agricultural activities. The owner and driver of the tractor (respondent Nos.1 and 2) did not appear before the learned Tribunal and were

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proceeded ex-parte. The Respondent No.2/Insurance Company contested the matter before the learned Tribunal.

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3.2. Based on the pleadings of the parties, the following

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issues were framed:

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IN M.V.C No.491/2018

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“I. Whether the petitioner proves that on 05.01.2018 at about 6-00 while he was going in a Motor cycle near Masjid, Ucchangidurga village, the driver of Tractor bearing Reg.No.KA-17/TB.3109 came in a rash and negligent manner with hi-speed and hit against motor cycle as a result he sustained injuries?

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II. Whether the respondent No.3 proves that the driver of Tractor was not holding valid and effective D.L at the time of accident?

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III. Whether the petitioner is entitled for compensation? If so from whom and to what extent?

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IV. What order or award?

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IN M.V.C. NO.492/2018

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1. Whether petitioner proves that on 05.01.2018 at about 6-00 P.M. in the evening while he was proceeding in a motor bike as a pillion rider near Anaji Uchchangidurga Road, the driver of tractor bearing No.KA.17/TB.3109 came in a rash and

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negligent manner with high speed and hit against Motor vehicle, as a result he sustained injuries?

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2. Whether the petitioner is entitled for compensation? If so from whom and to what extent?

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4. What order or award?”

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3.3. The petitioners examined themselves as PW.1 and

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PW.2 respectively. They examined their doctor as PW.3.

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Several documents were marked by the petitioners including Ex.P1 - FIR, Ex.P2 - complaint, Ex.P4 – vehicle seizure mahazar, Ex.P5 - IMV report. In addition, in respect of their medical expenses, Exs.P6/14 - wound certificates, Ex.P7 - discharge bills and Exs.P8/15 – medical bills, Exs.P9/16 - discharge summary and Exs.P10/17 - disability certificate.

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3.4. After examining the evidence, the learned Tribunal

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found that rash and negligent driving by the driver of the offending vehicle was proved. It also found that both petitioner No.1 and petitioner No.2 had sustained injuries. Since no proof of income was filed, learned Tribunal took the income at Rs.9,000/- per month for the purposes of

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calculating loss of future earnings. The petitioner No.1 was

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aged 45 years at the time of the accident and suffered

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injuries. The Doctor calculated his whole body disability at 10%. Thus, the award for loss of future earning was calculated in the following manner:

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[Rs.9,000/- x 12 x ’14’ x10%= Rs.1,51,200/-]

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3.5. In addition, learned Tribunal awarded amounts for

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pain and suffering, food, nourishment and conveyance and for loss of amenities and medical expenses as is set out

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below:

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Petitioner No.1 – (M.V.C.No.491/2018):

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Sl.No.	Head of compensation	Amount in (Rs.)
1)	Loss of future earning capacity	Rs.1,51,200/-
2)	Pain and sufferings	Rs.30,000/-
3)	Food, nourishment and conveyance	Rs.5,000/-
4)	Loss of amenities	Rs.5,000/-
5)	Loss of laid of period	Rs.9,000/-
6)	Medical expenses	Rs.66,150/-
	Total	Rs.2,66,350/-

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3.6. The petitioner No.2 was aged 50 years at the time of

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the accident and suffered injuries. The Doctor calculated

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his whole body disability at 7%. Thus, the award for loss

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of future earning was calculated in the following manner:

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[Rs.9,000/- x 12 x ’13’ x7%= Rs.98,280/-]

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3.7. In addition, learned Tribunal awarded amounts for

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pain and suffering, food nourishment and loss of amenities

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and medical expenses as is set out below:

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Petitioner No.2 – (M.V.C.No.492/2018) :

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Sl.No.	Head of compensation	Amount in (Rs.)
1)	Loss of future earning capacity	Rs.98,280/-
2)	Pain and sufferings	Rs.30,000/-
3)	Food, nourishment and conveyance	Rs.5,000/-
4)	Loss of amenities	Rs.5,000/-
5)	Loss of laid of period	Rs.9,000/-
6)	Medical expenses	Rs.42,860/-
	Total	Rs.1,90,140/-

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3.8. Thus, an amount of Rs.2,66,350/- to petitioner No.1

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and an amount of Rs.1,90,140/- to petitioner No.2 along

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with interest at the rate of 9% per annum was awarded by

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the learned Tribunal.

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4. As stated above, the challenge in the present appeals

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is by appellants/claimants before the learned Tribunal. Learned counsel for the appellants/claimants states that the Impugned Award suffers from the following infirmities:

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i) The notional income could have been taken at Rs.12,500/- instead of Rs.9,000/- per month, since the accident was in the year 2018;

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ii) The award for pain and suffering, loss of amenities, food and nourishment was also wrongly awarded.

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5. The learned counsel for respondent No.2/Insurance Company on the other hand while fairly submits that the notional income for the year 2018 was Rs.12,500/- per month and submits that the award on other remaining non-pecuniary heads does not require to be disturbed.

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6. Based on the contention of the parties, the following

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issue arises for determination:

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“Whether the petitioner Nos.1 and 2 were entitled to any amount of enhanced compensation?”

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7. It is undisputed fact that the notional income for the year 2018 was Rs.12,500/- per month. Petitioner No.1 was 45 years old, the applicable multiplier is 14, and suffered disability of 10% to the whole body. Thus, loss of earning capacity would be required to be calculated as follows:

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[Rs.12,500 x 12 x ‘14’ x 10% = Rs.2,10,000/-]

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8. The examination of the record reflects that petitioner No.1 sustained both simple and grievous injuries. Petitioner No.1 sustained a fracture of the right femur bone and a fracture of the right shoulder. He was treated as an inpatient for 15 days and the doctor who was examined also affirmed this aspect. It was stated by PW3, the examining Doctor that the petitioner had difficulty in climbing stairs, squatting and unable to work. Accordingly, considering the nature of the injuries, the doctor awarded disability of 10%.

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8.1. It is undisputed that the petitioner No.1 was hospitalized for 15 days. Given the nature of injuries and

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the period of hospitalization, petitioner No.1 would not be in a position to attend to his normal work at least for three months. In addition, the award on food and nourishment and loss of amenities would also require to be enhanced.

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Accordingly, the loss of laid up period would also be recalculated. Since the compensation awarded towards medical expenses is based on bills and prescriptions the same does not call for any interference by this Court.

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8.2. Accordingly, the compensation for petitioner No.1 is

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re-calculated as follows:

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Sl.	Head of compensation	Amount in (Rs.)
No.
1)	Loss of future earning capacity	Rs.2,10,000/-
2)	Pain and sufferings	Rs.40,000/-
3)	Food, nourishment and conveyance	Rs.15,000/-
4)	Loss of amenities	Rs.30,000/-
5)	Loss of laid of period (Rs.12,500 X 3)	Rs.37,500/-
6)	Medical expenses	Rs.66,150/-
	Total	Rs.3,98,650/-
	Awarded by the Tribunal	Rs.2,66,350/-
	Enhanced Compensation	Rs.1,32,300/-

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9. The record reflects that petitioner No.2 has also sustained fractures to his 3^rd to 8^th ribs of right side and

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also the right scapular bone. There was restriction in his

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movement and loss of muscle power on his right shoulder. The doctor/PW.3 has assessed disability at 35%. The doctor has taken the disability of petitioner No.2 as 7% to the whole body. Petitioner No.2 was aged 50 years, the applicable multiplier is 13. On perusal of the evidence of doctor/PW.3 and Ex.P17, which reflects that petitioner No.2 sustained fracture of ribs and scapular bone and considering the nature of injuries, the disability assessed by the learned Tribunal at 7% is erroneous and it is reassessed at 12%. Thus the loss of future earnings would require to be calculated as follows:

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[Rs.12,500 X 12 X ‘13’ X 12% = 2,34,000/-]

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9.1. The amounts of pain and suffering and loss of amenities also required to be enhanced. Since petitioner No.2 does not appear to have been hospitalized for an extended period of time, the loss of laid up period should

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be calculated for two months time. Accordingly, the compensation for petitioner No.2 is enhanced in the following terms:

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Sl.	Head of compensation	Amount in (Rs.)
No.
1)	Loss of future earning capacity	Rs.2,34,000/-
2)	Pain and sufferings	Rs.40,000/-
3)	Food, nourishment and conveyance	Rs.15,000/-
4)	Loss of amenities	Rs.25,000/-
5)	Loss of laid of period (Rs.12,500X2)	Rs.25,000/-
6)	Medical expenses	Rs.42,860/-
	Total	Rs.3,81,860/-
	Awarded by the Tribunal	Rs.1,90,140/-
	Enhanced Compensation	Rs.1,91,720/-

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Hence, the appellant/claimant – petitioner No.1 is entitled to enhanced compensation of Rs.1,32,300/- and the appellant/claimant – petitioner No.2 is entitled to enhanced compensation of Rs.1,91,720/- along with interest at the rate of 9% per annum as awarded by the learned Tribunal from the date of petition till the date of realization.

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Accordingly, the Court proceeds to pass the

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following:

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ORDER

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(i) The appeals are allowed in part ;

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(ii) The Impugned Judgment and Award dated

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06.08.2019 in M.V.C.Nos.491/2018 and 492/2018

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passed by the II Additional Senior Civil Judge and J.M.F.C., Davanagere, is modified, to the extent that the petitioner No.1 is entitled to enhanced compensation of Rs.1,32,300/- and petitioner

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No.2 is entitled to enhanced compensation of Rs.1,91,720/- along with interest at the rate of 9% per annum in addition to what has been awarded by the learned Tribunal.

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(iii) The remaining portion of the Impugned Award of the learned Tribunal remains

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undisturbed.

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(iv) The respondent – Insurance Company shall deposit the enhanced compensation with interest applicable thereon, as awarded by the learned Tribunal, within a period of eight weeks from the

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date of receipt of a copy of this judgment;

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(v) On such deposit of compensation, the same shall be released in favour of the claimants/ appellants, on filing of an appropriate application

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by the claimants/appellants for withdrawal of the