Divakar M D Vs Lingaraju

JUDGMENT AND AWARD DATED:16.07.2018 PASSED IN MVC NO.604/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. NO.8368/2018:

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BETWEEN:

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M/S. TATA AIG GENERAL INSURANCE COMPANY LTD., NO.374, 1ST FLOOR, SUNNY CENTRE ABOVE SONY CENTRE, KALIDASA ROAD VIJAYANAGAR 1ST STAGE MYSORE - 570 017 REPRESENTED BY MANAGER.

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...APPELLANT

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(BY SRI. RAVI S. SAMPRATHI, ADV.,)

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HC-KAR

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AND:

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SRI. DIWAKAR M.D. S/O M.L. DEVARAJU AGED ABOUT 28 YEARS RESIDENT OF MUDUMGERE VILLAGE KARAGODU POST

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MANDYA TALUK AND DISTRICT - 571 401.

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SRI. LINGARAJU S/O NAGARAJU MAJOR IN AGE NO.400, NALABANDAVADI MANDYA TALUK AND DISTRICT - 571 401.

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...RESPONDENTS

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(BY SRI. L. RAJA, ADV., FOR R1 R2 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:16.07.2018 PASSED IN MVC NO.604/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANDYA, AWARDING COMPENSATION OF RS.5,75,988/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE APPEALS, COMING ON FOR FINAL HEARING, 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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MFA No.9906/2018 is filed by the injured-claimant and MFA No.8368/2018 is filed by the Insurance Company; both these are arising out of the judgment and award dated 16.07.2018 passed in MVC.No.604/2015 by the I Additional Senior Civil Judge & CJM., and MACT, Mandya, (for short, ‘Tribunal’).

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Sri.Raja L., learned counsel for the appellantclaimant submits that the Tribunal has committed a grave error in holding that the injured-claimant was negligent and contributed to the accident to an extent of 30% by ignoring the fact that the jurisdictional police have filed the charge sheet against the offending bus. It is submitted that the claimant examined CW1 to CW3, who have assessed the disability at 40%, 30% and 52.5% respectively, and altogether it would be more than 120%. However, the Tribunal has erred in assessing the disability at 50%. Hence, he seeks to allow the appeal filed by the

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HC-KAR

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injured-claimant by dismissing the appeal filed by the Insurance Company.

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Per contra, Sri.Ravi S. Samprathi, learned counsel appearing for the Insurance Company submits that insofar as contributory negligence is concerned, the Tribunal has recorded a clear finding that the injuredclaimant was on the wrong side of the road and in view of the said finding, it has fixed the contributory negligence at 30% on the injured-claimant which does not call for any modification. It is submitted that the even the disability assessed by the Tribunal at 50% is on the higher side and seeks to asses the same at 40% by considering 1/3^rd of the total disability assessed by the Doctor. It is further submitted that the award of interest at 9% per annum on the compensation amount by the Tribunal is on the higher side. Hence, he seeks to allow the appeal filed by the Insurance Company by dismissing the appeal filed by the injured-claimant.

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HC-KAR

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I have heard the arguments of the learned

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counsel appearing on both sides 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 are :

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

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The answer to the above point is affirmative for the following reason:

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The injured-claimant met with a road accident on 12.03.2015 when he was proceeding towards Alakere from Keelara on his motorcycle bearing registration No.KA-11-T-811, at that time, the driver of the bus bearing registration No.KA-11-B-555 drove the same in a rash and negligent manner and dashed to the motorcycle. The jurisdictional police based on the complaint of Sri.Rajith M.S. registered the case in Crime No.26/2015 by Keragodu police station and after completion of

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HC-KAR

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investigation, filed the charge sheet against the driver of the bus.

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It is to be noticed that the Tribunal considering the charge sheet material and oral evidence of the injuredclaimant as well as RW1 and after perusing Ex.P6 charge sheet, Exs.P1 to P3 i.e., FIR, complaint and spot mahazar, has recorded the finding that the injured-claimant was proceeding towards Alakere and the bus was coming towards Keelara and further the Tribunal has recorded the finding that injured-claimant was riding the motorcycle on the wrong side of the road. In my considered view, the Tribunal considering the oral and documentary evidence has rightly come to conclusion that the injured-claimant has contributed to the accident to an extent of 30%, hence, the same does not call for any interference.

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It is to be noticed that the injured-claimant has sustained various injuries and fractures which are referred herein below:

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HC-KAR

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"1. Abrasion 5 x 2 cms swelling frortal and temporal region

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2. bleeding at left ear 3. Lacerated wound 1 x ½ cm frontral region

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4. blood clots both nostrils

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5. periorbital aedema right eye black eye 6. tenderness over the right jaw and swelling 7. tenderness swelling over left right zygomatic process

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8. tenderness and swelling over left knee medial aspect

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9. tenderness over left shoulder"

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Insofar as the quantum of compensation is

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concerned, the injured-claimant examined himself as PW1 and got marked Exs.P1 to P39 and also examined the doctors as CW1 to CW3 and got marked Exs.C1 to C8. The perusal of the evidence of CW1 to CW3 indicate that each of the doctors have assessed different disability i.e., to an extent of 40%, 30% and 52.5% respectively, as referred in para 9 of the judgment of the Tribunal. Considering the said observations of the doctors and the disability, the

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HC-KAR

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Tribunal has rightly assessed the disability of the injuredclaimant at 50% and the same does not call for any modification.

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It is to be noticed that the Tribunal has rightly added 40% of the assessed income under the head of loss of future prospects. However, the Tribunal has committed an error in deducting 50% towards the personal and living expenses of the injured-claimant.

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The income of the injured is re-assessed at Rs.9,000/- per month by placing reliance on the notional income chart prepared by KSLSA. The injured-claimant was aged about 25 years as on the date of accident, the appropriate multiplier would be 18, which has been rightly considered by the Tribunal. Hence, injured-claimant is entitled to compensation under the head of loss of future income due to disability as under:

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Rs.9,000 + 40% x 12 x 18 x 50%= Rs.13,60,800/-

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HC-KAR

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Considering the nature of injuries suffered,

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keeping in mind the fact that the injured-claimant was inpatient for more than one month in the hospital and underwent surgery, I am of the considered view that the compensation under other heads is required to be reassessed appropriately. Hence, the injured-claimant would be entitled to compensation of Rs.60,000/- towards pain & suffering and Rs.50,000/- towards loss of amenities in life. The injured-claimant would be entitled to Rs.36,000/- (Rs.9,000 X 4) towards the loss of income during laid-up period. The compensation awarded by the Tribunal towards medical expenses and future medical expenses, medical attendant, food, diet, etc., is unaltered.

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The Tribunal has awarded interest at the rate of 9% per annum on the compensation amount without any justifiable reasons. Normally the interest paid by the nationalized banks on the term/fixed deposit should be the basis to award the interest on the compensation amount. Hence, the injured-claimant is entitled to the interest on

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HC-KAR

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the compensation amount at the rate of 6% per annum

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from the date of petition till realization of the amount.

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Thus, the injured-claimant would be entitled to

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modified compensation as under:

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HEADS	AMOUNT (in Rs.)
Loss of future income due to disability	13,60,800
Medical expenses	5,239
Pain and suffering	60,000
Future medical expenses, medical attendant, food, diet, etc	20,000
Loss of amenities in life	50,000
Loss of income during laid up period	36,000
Total	15,32,039
Less : 30% contributory negligence	4,59,612
Balance	10,72,427

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Thus, the injured-claimant shall be entitled to a total

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compensation of Rs.10,72,427/- as against Rs.5,75,988/- 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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a) Both the appeals are allowed in part .

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HC-KAR

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b) The impugned judgment and award of the Tribunal is modified to an extent that the appellant-claimant would be entitled to a total compensation Rs.10,72,427/- as against Rs.5,75,988/- awarded by the Tribunal.

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c) The total 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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d) The Insurance Company shall deposit the 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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e) The apportionment, deposit and disbursement shall be made as per award of the Tribunal.

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f) Registry shall transmit the amount in deposit, if any, to the Tribunal forthwith.

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g) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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BSR/List No.: 1 Sl No.: 23

Divakar M D v. Lingaraju

Case brief

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Divakar M D v. Lingaraju

Case brief

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