Sri. Swamy C.N. Vs Mr. Banusurya

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2019 PASSED IN MVC NO.1071/2018 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER OF MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 8873/2019

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BETWEEN:

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MASTER DRUVANKUMAR S S/O SWAMY C.N, AGED ABOUT 16 YEARS, MINOR REP. BY HIS NATURAL GUARDIAN FATHER BY NAME SWAMY.C.N. R/O K.H.B. COLONY, KUNIGAL TOWN, TUMKUR DISTRICT - 572 130.

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...APPELLANT

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(BY SRI. CHANDRASHEKARAIAH B, ADVOCATE)

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AND:

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MR. BANUSURYA S/O SHIVAKUMAR, MAJOR, (AGE NOT KNOWN TO THE APPELLANT), NO.87, 7TH CROSS, MOODALAPALYA, SHIVANANDANAGAR, NAGARABAVI MAIN ROAD, BANGALORE - 560 072.

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3 -

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NC: 2026:KHC:15590 MFA No. 8920 of 2019 C/W MFA No. 8873 of 2019

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HC-KAR

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NATIONAL INSURANCE COMPANY LTD., NO.144, SHABHARAM COMPLEX, 2ND FLOOR, M.G.ROAD, BANGALORE - 560 001.

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...RESPONDENTS

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(BY SRI. E.I. SANMATHI, ADVOCATE FOR R2; VIDE ORDER DATED 04.02.2022, NOTICE TO R1 DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2019 PASSED IN MVC NO. 1070/2018 ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS

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DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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These appeals are filed by the injured father and minor son aggrieved by the common judgment and award dated 01.01.2019 passed in MVC Nos.1070 and 1071 of 2018 by the Motor Accident Claims Tribunal, Bengaluru (for short, 8Tribunal9).

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4 - NC: 2026:KHC:15590 MFA No. 8920 of 2019 C/W MFA No. 8873 of 2019

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HC-KAR

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Though these appeals are listed for admission,

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with consent of the learned counsel for the parties, they

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are taken up for final disposal.

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Sri Chandrashekaraiah B, learned counsel for

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the appellants in both the appeals submits that the appellants met with a road traffic accident, sustained grievous injuries and suffered disability. However, the Tribunal without appreciating the evidence on record in its proper perspective has awarded meager compensation in both the cases. It is submitted that in case of the minor son, the Tribunal has failed to assess the compensation under the head of loss of future income of the minor due to disability solely on the ground that the Doctor has not been examined and even the award of compensation on all other heads is on the lower side. It is submitted that in

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case of injury to the father, the Tribunal has awarded Rs.50,000/- under the head of physical permanent impairment and the appellant is entitled to compensation

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HC-KAR

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under the head of loss of future income due to disability by assessing his income and disability by considering the evidence of PW.3. Hence, he seeks to allow both the appeals.

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Per contra , Sri E. I. Sanmathi, learned counsel appearing for respondent No.2-Insurance Company supports the impugned judgment and award of the Tribunal and submits that the appellants have failed to examine the Doctor and have failed to produce the disability certificate in case of injury suffered by the minor. Hence, the Tribunal considering the available records has awarded just compensation. It is submitted that that in case of the father who has suffered injury, the Tribunal has recorded a clear finding that one fracture does not lead to disability and proceeded to award just and fair compensation to the father which also does not call for interference. Hence, he seeks to dismiss both the appeals.

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HC-KAR

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I have heard the arguments of the learned

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counsel for the appellants, the learned counsel for the respondent and meticulously perused the material available on record.

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The only point that would arise for

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consideration in these appeals is:

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" Whether the impugned judgment and award passed by the Tribunal calls for any interference?"

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The parties to the proceedings do not dispute that in a road traffic accident dated 12.03.2017, both the appellants i.e. father and his son have sustained grievous injuries and were provided treatment. Both the appellants have filed the claim petitions under Section 166 of the Motor Vehicles Act. The Tribunal has recorded the common evidence. The father claimant examined himself as PWs.1 and 2 and the Doctor as PW.3 and got marked 18

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HC-KAR

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documents as Exs.P1 to P18. The respondents did not adduce any evidence.

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The Tribunal, on appreciation of the evidence has allowed both the claim petitions in part by awarding compensation of Rs.2,17,500/- in MVC.No.1070 of 2018 and Rs.2,41,500/- in MVC.No.1071 of 2018 along with interest at 6% per annum.

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Insofar as MVC.No.1070 of 2018 is concerned, it is filed by the minor injured represented by his father, seeking enhancement of compensation. It is to be noticed that the minor has sustained grievous head injury and also multiple grazed abrasion over foot, multiple grazed abrasion over the left wrist. He was provided treatment as inpatient for a period of seven days in Sparsha Hospital, which is evident from the discharge summary at Ex.P11. It is also not in dispute that the claimant has failed to examine the Doctor in order to prove the disability and also failed to produce the disability certificate. Considering the nature of injury suffered referred in Ex.P11-discharge

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HC-KAR

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summary issued by the Sparsha Hospital, Bengaluru and taking note of the fact that the appellant minor was required to undergo CT scan, the treatment for head injury, I am of the considered opinion that the compensation awarded by the Tribunal is required to be modified appropriately. Hence, the compensation is reassessed as under:

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HEADS	AMOUNT (in Rs.)
Pain & suffering	50,000/-
Medical expenses	1,07,500/-
Future medical expenses	10,000/-
Towards food, diet and conveyance	25,000/-
Loss of amenities	50,000/-
Loss ofphysicalpermanent impairment	75,000/-
Total	3,17,500

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Insofar as MVC.No.1071/2018, the claimantappellant is the injured who has suffered fracture of left floating shoulder i.e. clavicle fracture as is evident from Ex.P5-wound certificate and discharge summary at Ex.P7. It is to be noticed that the appellant has examined the

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HC-KAR

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treated doctor as PW.3, who has assessed permanent physical disability to the extent of 5% to the whole body and considering the fact that the appellant was inpatient for a period of seven days in the hospital, undergone surgery, the compensation under the head of loss of income due to disability is required to be assessed. For the aforementioned reasons and taking note of the oral testimony of PW.3 and Exs.P5-wound certificate and P7discharge summary, I am of the considered view that the interest of justice would be met if the disability of the appellant is assessed at 5% to the whole body. The appellant has failed to produce any evidence on record in respect of his income. Hence, his income is notionally assessed at Rs.11,000/- placing reliance on the income chart prepared by the Karnataka State Legal Services Authority (KSLSA).

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Having reassessed the income and disability, the entire compensation in the case of injury is reassessed as under:

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HC-KAR

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HEADS	AMOUNT (in Rs.)
Pain & suffering	40,000/-
Loss of income during laid up period (11,000/-x3)	33,000/-
Medical expenses	1,03,500/-
Future medical expenses	10,000/-
Towards food, diet and conveyance	20,000/-
Loss of amenities	40,000/-
Loss ofphysicalpermanent impairment	72,600/-
Total	3,19,100

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Thus, the appellants-claimants in

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MFA.Nos.8920/2019 and 8873/2019 shall be entitled to a

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total compensation of Rs.3,17,500/- as against Rs.2,17,500/and Rs.3,19,100/- as against

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Rs.2,41,500/- respectively 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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NC: 2026:KHC:15590 MFA No. 8920 of 2019 C/W MFA No. 8873 of 2019

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HC-KAR

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ORDER

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a) Both the appeals are allowed in part .

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b) The impugned judgment and award dated 01.01.2019 passed by the Tribunal in M.V.C.Nos.1070 and 1071 of 2018 are modified

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to an extent that the appellants-claimants would be entitled to total compensation of Rs.3,17,500/- as against Rs,2,17,500/- and Rs.3,19,100/- as against Rs.2,41,500/respectively awarded by the Tribunal.

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c) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realisation.

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d) The respondent No.2-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 the certified copy of this judgment.

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