IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MFA NO.1318 OF 2017 (MV)
Between:
N.Prakash
S/o Narayana Poojari
Aged about 32 years
R/o Gavatooru
Ripponpete
Hosanagara Taluk
Shimoga District. .... Appellant
(By Ms. Vijaya M.N, Advocate)
And:
1. K.R.Suresh
S/o K.S.Rameshgowda
Age Major
R/o Kuswara, Kushavara
Beluru Taluk, Hassan District
Rider of Bajaj Discovery Bike
Bearing Reg No.KA-18-U-5694
2. Abdul Razak
S/o Abbu Byari
Age Major
Owner of ajaj Discovery Bike
Bearing Reg No.KA-18-U-5694
R/o Kuduregundi Village
Koppa Taluk
Chikkamagalooru District
3. The Branch Manager
Universal Sompo General
Insurance Company Limited
2
Registered Office - 201-208
Cristal Plaza, in front of Infinity
Mall Link Road, Anderi
West Mumbai - 400 058 ... Respondents
(By Sri. Abdul Razak, Adv. For R2,
Sri Ravi.S.Samprathi, Advocate for R3,
V/o dated 14.02.2020, Notice to R1 d/w)
This MFA is filed under Section 173(1) of the Motor
Vehicles Act against the judgment and award dated
17.09.2016 on the file of the Senior Civil Judge &
J.M.F.C, member, Additional MACT-9, Sagar, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
This appeal is filed by the claimant seeking enhancement of the compensation awarded by the Senior Civil Judge & JMFC and Additional MACT, Sagar (henceforth referred to as 'Tribunal') in MVC No.186/2012.
2. Though, this appeal is listed for admission, the same is taken up for final disposal with the consent of the learned counsel for the parties.
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3. The parties are referred to as they were arrayed before the Tribunal.
4. The judgment and award passed by the Tribunal discloses that on 01.01.2012 when the claimant was riding pillion on a motorbike and was returning from Shikaripura to Ripponpet on a Bajaj Discovery Bike bearing registration No.KA-18-U- 5694. When they reached Vadagere, the rider of the bike lost control and fell down. As a result, the claimant suffered lacerated wound on the right knee, fracture of tibia, fracture of clavicle joint, fracture of right little finger and injuries to right hand, head and left ear. The claimant was shifted to Ripponpet Government Hospital, where he was administered first aid and thereafter shifted to Nanjappa Hospital, Shivamogga. The claimant underwent treatment for a period of 28 days and alleged that he spent a sum of Rs.1,20,000/- towards medical expenses. The claimant claimed that he was a painter and was 4 earning a monthly income of Rs.15,000/- per month. He therefore, contended that as a result of the accidental injuries, he was deprived of his ability to earn from his avocation. Therefore, the claimant filed a claim petition under Section 166 of Motor Vehicle Act claiming compensation of a sum of Rs.9,50,000/-
5. The claim petition was contested by the insurer of the bike. The insurer denied the averments of the claim petition as well as avocation and income of the claimant. It also contended that the compensation claimed by the claimant was excessive and as the rider of the bike did not possess a driving license, it was not liable to pay compensation. With these rival contentions, the claim petition was set down for trial.
6. The claimant was examined as PW.1, a witness was examined as PW.2 and a doctor who treated the claimant was examined as PW.3 and they 5 marked Exs.P.1 to P17. The insurer examined its official as RW.1 and marked Ex.R.1 to R3.
7. The Tribunal noticed from Ex.P.6 that the claimant had suffered the following injuries:
i) Lacerated wound over right knee joint region with bleeding
ii) Fracture of left clavicle bone
iii) Condylar Fracture right knee
iv) Fracture neck of right leg, fibula bone
v) Fracture of left mastiod temporal bone.
8. It also noticed that claimant was admitted on 02.01.2012 and discharged from hospital on 21.01.2012. It noticed evidence of PW2 that claimant was treated conservatively at Mc. Gann Hospital, Shivamogga for nearly 20 days. It also noticed that claimant had not produced any proof of income and therefore, it considered the notional income of the claimant at a sum of Rs.4,000/- per month and having regard to the evidence of PW2, assessed 6 disability at 20.26% to the limb and at 7% to the whole body and awarded the following compensation:
Heads under which Amount
compensation awarded (in Rs.)
For pain and sufferings, 30,000
mental agony
For Medical expenses 01,800,000
For travelling and special 15,000
diet
For loss of earning during 16,000.00
treatment period
For permanent Physical 53,760,00
disability
Total 1,16,560.00
9. Feeling aggrieved by the quantum of compensation awarded by the Tribunal, the claimant is in appeal and contends that since he had suffered more than two fractures, the Tribunal ought to have awarded just compensation towards pain and suffering/loss of amenities. Having regard to the functional disability that the injury had caused to the claimant who was a painter by profession, the Tribunal ought to have awarded just compensation. It is also contended that the Tribunal ought to have 7 considered the notional income of the claimant at 7,000/- per month as is done by this Court in cases referred to Lok Adalath for settlement. Therefore, he prays that the compensation awarded by the Tribunal be modified and enhanced.
10. Per contra, the insurer vehemently contended that the Tribunal was justified in awarding compensation of Rs.1,16,560/-.
11. I have given my anxious consideration to the arguments advanced by both the parties.
12. It is seen that the claimant had suffered fracture of left clavicle bone, condoylar fracture at right knee, fracture of neck of right leg, fibula bone, fracture of left mastoid temporal bone. Under the circumstances, the compensation awarded for pain and suffering as well as the loss of amenities deserves enhancement. As rightly contended by the learned counsel for the claimant, the notional income of the 8 claimant must have been considered at Rs.7,000/- per month as is done by this Court in matters referred to Lok Adalath for settlement. The Tribunal failed to award compensation towards 'Loss of amenities' and 'future medical expenses'. If the above is taken into consideration, then it is imperative that compensation awarded by the Tribunal deserves to be enhanced. Hence, the compensation to which claimant is entitled to is re-determined as follows:
Heads under which Amount
compensation awarded (in Rs.)
For pain and suffering, 50,000
mental agony
For Medical expenses 1,800
Conveyance, attendant 25,000
charges towards special
diet
For loss of income of 94,080.00
Rs.7,000/- per month due
to disability at 7% to the
whole body
Loss of income during laid 21,000,00
up period of 3 months
Loss of amenities 35,000.00
Future medical expenses 20,000.00
Total 2,46,880.00
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13. In view of the above, the appeal filed by the claimant is allowed in part and the compensation of Rs.1,65,560/- awarded by the Tribunal is enhanced to Rs.2,46,880/- along with interest at the rate of 6% per annum from the date of petition till the date of realization. Insurer to deposit the enhanced compensation within one month and any deposit made shall be adjusted thereto.
Sd/-
JUDGE nms