Udaya Achar Vs Jagadheeshwara

UDAYA ACHAR AGED ABOUT 42 YEARS, S/O MANJUNATH ACHAR, R/O NEAR KALYANI MADHARI, HIGHER PRIMARY SCHOOL, TRASI VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 201.

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…APPELLANT

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(BY SRI. PAVANA CHANDRA SHETTY.H., ADVOCATE)

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AND:

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JAGADHEESHWARA, AGED ABOUT 39 YEARS, S/O MALLAPPA, R/O BHAGOJI, HAVERI PETE, MURTHUNJAYA NAGARA,

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Digitally signed by SUMATHY KANNAN Location: HIGH COURT OF KARNTAKA

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SAVADATTI ROAD, DHARWAD-580 001.

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SHRI RAM GENERAL INSURANCE CO. LTD., E-8, EPIP, SITAPURA INDUSTRIAL AREA, JAIPURA, RAJASTHANA-302 004. REPRESENTED BY ITS BRANCH MANAGER.

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…RESPONDENTS

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(BY SRI. B.C.SHIVANNEGOWDA., ADVOCATE)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04/01/2018, PASSED IN MVC NO.372/2016, ON THE FILE OF THE ADDITIONAL DISTRICT

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NC: 2026:KHC:26092-DB MFA No. 9733 of 2018

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HC-KAR

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JUDGE AND ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA), 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 JAYANT BANERJI

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& 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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The present appeal seeks to challenge the Judgment and Award dated 04.01.2018 in M.V.C.No.372/2016 passed by the learned Additional District Judge and Addl. MACT, Udupi, (Sitting at Kundapura), Kundapura (hereinafter referred to as the ‘Impugned Award’). By the Impugned Award, the learned Tribunal has awarded Rs.5,85,320/- to the appellant/claimant with interest at 6% per annum from the date of petition till its realisation.

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This appeal has been filed by the appellant/claimant seeking for an enhancement of the amounts awarded. Since there was no breach of Insurance Policy, notice to respondent No.1/owner has been dispensed with, by order

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dated 04.06.2021. This matter was heard with the consent

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of the parties, at the admission stage itself.

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The brief facts that are relevant in the case are that the appellant/claimant was riding his Motor Cycle bearing Registration No.KA-20-ED-0325 on 14.12.2015 from Kundapura towards Bhatkal, when a lorry bearing Registration No.MH-06-AC-4785 being driven in a rash and negligent manner at a high speed, had collided with the motor cycle. As result of the collision, the appellant/claimant sustained grievous injuries all over his body and was immediately shifted to KMC Hospital, Manipal.

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3.1 It is averred that the appellant/claimant was treated as an in-patient and spent Rs.3,00,000/towards treatment, nourishing food, attendant charges, etc. The appellant/claimant contended that he had taken treatment as an out-patient and that he had spent amounts on his treatment. In this behalf he stated that he also required a sum of Rs.1,00,000/- towards future treatment and

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surgery. A claim petition was filed by the

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appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’) before the learned Tribunal seeking compensation.

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The respondent No.1/owner being the driver of the offending vehicle, did not appear before the learned Tribunal and was proceeded exparte . The claim petition was contested only by respondent No.2/Insurance Company before the learned Tribunal.

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Based on the pleadings between the parties, the following Issues were framed by the Learned Tribunal:

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“ISSUES

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“1. Whether the petitioner proves that petitioner sustained bodily injuries arising out of the accident that took place on 14-12-2015 at about 02:45 p.m., near Trasi Beach, Trasi Village. on N.H.66, Kundapura Taluk. at that time by use of the Lorry bearing Reg. No.MH-06-AC-4785, driven by its driver and due to actionable negligence of driver of the offending vehicle Lorry bearing Reg.No.MH06-AC-4785?

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2. Whether respondent No.2 proves that the driver of the Lorry bearing Reg. No.MH-06-AC-4785, holding valid and effective driving license to drive the said vehicle at the time of alleged accident?

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3. Whether the petitioner is entitled for compensation as sought for? If so what is the quantum and from whom?

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4. What order or award?”

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The appellant/claimant was examined as PW.1 and he examined his Doctor namely, Dr. Ashwath Acharya, as

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PW.2 and also marked 11 documents namely Exhibit P1 (FIR with complaint), Exhibit P2 (spot mahazar), Exhibit P3 (spot sketch), Exhibit P4 (wound certificate), Exhibit P5 (police notice), Exhibit P6 (Medical bills-15), Exhibit P7 (copy of aadhar card of claimant), Exhibit P8 (Treatment certificate), Exhibit P9 (Disability certificate), Exhibit P10 (Medical file) and Exhibit P11 (X-rays-8). The respondent No.2/Insurance Company however did not lead any evidence but produced documents namely Exhibit R1 – Authorization letter and Exhibit R2 – Insurance Policy in support of their case.

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Based on the evidence and the pleadings of the parties, the learned Tribunal found that the disability assessed by the Doctor was at 25% permanent disability to his left lower limb function, 10% disability of his spine

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and 14% disability of his left shoulder function. Thus, the learned Tribunal assessed the functional disability of the whole body at 29.5%. Given that the accident had occurred in the year 2015, monthly income of the appellant/claimant was taken at Rs.9,000/-. Further, since that the petitioner was 46 years old, multiplier of ‘13’ was used and the learned Tribunal calculated loss of future earning capacity at Rs.4,14,180/-. The learned Tribunal also awarded compensation for Injury, pain and suffering, actual medical expenses, loss of earning during bed rest, conveyance, nourishment and attendant charges, in the following amounts:

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Sl.No.	Heads of Compensation	Amount (Rs.)
1	Injury, pain & Sufferings	1,00,000-00
2	Medical expenses	3,538-00
3	Loss of earning during treatment	3,600-00
4	Loss of earning during bed rest	54,000-00
5	Loss of future earning capacity	4,14,180-00
6	Conveyance, Nourishment and Attendant charges	10,000-00
	TOTAL	5,85,318-00

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7.1 Thus, an amount of Rs.5,85,320/- along with interest

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at 6% per annum was awarded by the learned Tribunal.

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The challenge in the present appeal by the learned counsel for the appellant/claimant, is on the ground that the compensation awarded is inadequate inasmuch as the learned Tribunal, while computing loss of future earning capacity, failed to add 25% towards future prospects though the claimant was self-employed and aged 46 years. It is further contended that the amounts awarded towards conveyance, nourishment and attendant charges is insufficient considering the nature of injuries and hospitalization and that no compensation has been awarded towards loss of amenities despite permanent disability and multiple fractures suffered by the claimant.

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Learned counsel for respondent No.2/Insurance Company, on the other hand submits that the Impugned Order does not suffer from any infirmity. He submits that the amounts awarded are in accordance with the settled principles.

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The issue that arises for determination before this Court is whether the compensation that has been awarded

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by the learned Tribunal is in accordance with law?

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An examination of the documents produced before this Court reveals that though the appellant/claimant had suffered multiple fractures and also permanent disability of 29.5% to his whole body, however the learned Tribunal has not awarded any compensation towards loss of amenities. Hence, we find that it would be just and proper to grant compensation of a sum of Rs.50,000/- towards ‘loss of amenities’.

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Taking into consideration that the appellant/claimant

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was an in-patient for a period of 12 days, it would be apposite to enhance the compensation towards ‘conveyance, nourishment and attendant charges’.

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Further, while computing compensation towards ‘loss of future earning capacity’, the learned Tribunal has failed to add ‘future prospects’ to the income. Hence, we find it just and apposite to add 25% of the income as ‘future prospects’. Thus taking Rs.9,000/- as the monthly income of the appellant/claimant and adding 25% towards ‘future prospects and with 29.5% as the whole body disability,

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the compensation towards ‘loss of future earning capacity’

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would be re-computed as under:

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	Head		Amount
Loss of	future	earning	(9000 + 25% Future Prospects
capacity			x 12 x 13) x 29.5%
			= 11250 x 12 x 13 x 29.5%
			=5,17,725/-

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Accordingly, the compensation awarded by the

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Tribunal is re-assessed as follows:

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Sl.No.	Heads of Compensation	Amount (Rs.)
1	Towards Pain & Sufferings	1,00,000-00
2	Medical expenses	3,538-00
3	Loss of income during laid-up period	57,600-00
4	Loss of future earning capacity	5,17,725-00
5	Conveyance, nourishment and attendant charges	15,000-00
6	Loss of amenities	50,000-00
	TOTAL	7,43,863-00
	Less: Awarded by Tribunal	5,85,318-00
	Enhanced compensation	1,58,545-00

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Hence, the appellant/claimant is entitled to total

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compensation of Rs.7,43,863/- along with interest at 6%

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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 appeal is allowed in part ;

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(ii) The Impugned Judgment and Award dated 04.01.2018 in MVC No.372/2016 passed by the learned Addl. District Judge and Addl. MACT, Udupi (Sitting at Kundapura), Kundapura, is modified, to the extent that the appellant/claimant is entitled to enhanced compensation of Rs.1,58,545/- along with interest at the rate of 6% per annum in addition to Rs.5,85,318/- already awarded by the learned Tribunal.

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

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(iv) The respondent No.2/Insurance Company shall deposit the enhanced compensation with interest applicable thereon, as awarded by the

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learned Tribunal, within a period of eight weeks