Mr Jabeer @ Mahammad Jabir Vs United India Insurance Company Ltd.

AGED 21 YEARS R/AT D NO 2-67 SUJEER KODANGE HOUSE, SUJEER KODANGE ROAD, PUDU POST, AND VILLAGE BANTWAL TQ - 574143 PRESENTLY R/AT ZOHARA MANZIL KATIPALLA SURATHKAL, MANGALURU

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Digitally signed by (BY SRI. GURUPRASAD B R., ADVOCATE) SHARADAVANI B

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AND:

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Location: HIGH COURT OF KARNATAKA

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…APPELLANT

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UNITED INDIA INSURANCE COMPANY LTD VARANASHI TOWERS MISSION STREET BUNDER, MANGALURU - 575001 REPRESENTED BY ITS MANAGER

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HC-KAR

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2. MOHAMMED ASHRAF

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S/O IBRAHIM AGED 33 YEARS R/AT D NO 5-51/3 AMMEMMAR HOUSE, FARANGIPETE POST

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BANTWAL TQ - 574143

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…RESPONDENTS

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(BY SRI. M.ARUN PONNAPPA., ADVOCATE FOR R1;

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V/O DTD 9/12/22 NOTICE TO R3 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED12.12.2017 PASSED IN MVC NO.488/2015 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, MACT, D.K., MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND 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 VIJAYKUMAR A. PATIL

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the injured/claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 12.12.2017 passed in MVC No.488/2015 by the Principal District Judge, MACT, Dakshina Kannada, Mangaluru (hereinafter be referred to as 'Tribunal' for short).

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Sri.Guruprasad B.R., learned counsel appearing for the appellant submits that the Tribunal has committed grave error in not awarding any compensation under the head of loss of income due to disability, solely on the ground that the disability certificate at Ex.P-2 is 2 years after the accident. It is submitted that PW-2 who has been examined before the Tribunal has clearly deposed that the appellant/injured has suffered disability to the extent of 25% which ought to have been considered. It is submitted that no compensation is awarded under the head of loss of amenities, loss of income during the laid up period. Hence, he seeks to reassess the same appropriately.

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HC-KAR

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Per contra , Sri.M.Arun Ponnappa, learned counsel appearing for respondent No.1, supports the impugned judgment and award of the Tribunal and submits that the Tribunal has rightly appreciated the conduct of the claimant that the accident is of the year 2014 and the disability certificate is obtained 2 years later. It is submitted that PW-2 is not a treating doctor and nothing has prevented the claimant to examine Dr.Jalaludhin and Rizwan who were available and who have treated the appellant/claimant. It is also submitted that the PW-2 in cross-examination clearly admitted that he is not an orthopedic surgeon and therefore has not treated the injured. Hence, his evidence is suspicious and cannot be relied on to award any compensation under the head of loss of income due to disability. He submits that award of compensation by the Tribunal under the head of pain and suffering is on a higher side which can be adjusted under the head loss of amenities. Hence, he seeks to dismiss the appeal.

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I have heard the arguments of learned counsel for the appellant, learned counsel for the respondent and meticulously perused the material available on record.

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HC-KAR

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The appellant as well as the Insurance Company do not dispute that the appellant met with a road accident on 21.02.2014 and the accident is caused due to the negligence on the part of a rider of the motorcycle which was insured with the respondent/Insurance Company. In order to prove the claim, the claimant examined himself as PW-1. He has examined Dr. Suresh K.Mankar as PW-2 and one Sri.Ganesh as PW-3 and got marked Ex.P-1 to Ex.P-40. The respondent did not adduce oral evidence and got marked insurance policies as Ex.R-1 and Ex.R-2. The Tribunal considering the oral and documentary evidence awarded total compensation of Rs.1,62,650/- along with interest at the rate of 6%. It is to be noticed that the appellant sustained following injuries:

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Fracture medial mallealus right avaulsion and fracture capitulum.

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Fracture neck of 3^rd and 4^th metatarsal right and fracture base of 4^th metatarsal right.

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Avulsing fracture left lateral Epicondyle and lacerating left elbow posterior aspect.

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Fracture nasal bones.

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HC-KAR

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Contusion chest.

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It is not in dispute that in order to prove the injuries suffered by the appellant he has produced documentary evidence like Wound Certificate at Ex.P-1 and other medical records like bills of Highland Hospital. It is also not in dispute that the appellant obtained the disability certificate in the year 2016 which was produced before the Tribunal which is marked as Ex. P-2. The records indicates that the PW-2 has deposed before the Tribunal that the appellant has sustained disability to the extent of 25%. Learned counsel for the Insurance Company has raised objection with regard to the assessment of the disability as to whether the disability is to the whole body or to the particular limb is not forthcoming either from the disability certificate at Ex.P-2 or from the deposition of PW-2. However, the said contention is required to be rejected for the reason that the injuries suffered by the appellant are evident from Ex.P-1 Wound Certificate. Considering the said document as a

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basis to compare the evidence of PW-2 and Ex.P-2, I am of the considered view that interest of justice would be met if the

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HC-KAR

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disability of the injured is assessed at 9% for the purpose of determination of compensation.

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Having assessed the disability, the appellant/claimant is entitled to compensation under the head of loss of income due to physical disablement. The income of the injured is considered as Rs.8,500/- placing reliance on the notional income chart prepared by the Karnataka State Legal Services Authority. The appellant/claimant was aged about 17 years. Hence, the appropriate multiplier would be '18'. Hence, the appellant is entitled to compensation under the head of ' loss of income due to disability ' as under:

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Rs.8,500 x12x18x9% = Rs. 1,65,240/- .

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The learned counsel for the Insurance Company is right in submitting that the award of compensation under the head of pain and suffering is on the higher side. Hence, considering the said aspect and in the absence of any appeal of the Insurance Company, I am of the view that the said compensation is required to be retained as it is by adjusting the same under the head of loss of amenities. Medical expenses

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HC-KAR

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awarded by the Tribunal is as per the bills which is unaltered. Award of compensation under the head of attendant charges, food and nourishment and conveyance is reassessed at Rs.10,000/-. Taking note of the fact that the injured was inpatient for a period of 8 days in the hospital and thereafter he was required to undergo treatment. Having assessed the income at Rs.8,500/- this Court awards the compensation under the ' head of loss of income during the laid up period' at Rs.25,500/- (Rs.8,500 x 3).

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Hence, the appellant would be entitled to the following compensation.

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HEADS	AMOUNT (in Rs.)
Loss of income due to disability	1,65,240.00
Towards pain and suffering and loss of amenities	1,05,000.00
Towards attendant, nourishment and conveyance charges	10,000.00
Towards medical expenses	53,026.30
Towards the loss of income during the laid up period	25,500.00
Total	3,58,766.3
Rounded off to	3,58,766.00

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HC-KAR

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Thus, the appellant/claimant shall be entitled to total compensation of Rs.3,58,766/- as against Rs.1,62,650/awarded by the Tribunal.

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In the result, this Court proceeds to pass the

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following:-

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ORDER

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i) Appeal is allowed in part .

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ii) The impugned judgment and award of the Tribunal is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs.3,58,766/- as against Rs.1,62,650/- awarded by the Tribunal.

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iii) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

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iv) The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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