Karnataka High Court
Mr Jeofrey Fernandes vs Mr Felix Moras on 18 January, 2021
Author: N S Gowda
MFA.762/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.762/2016 (MV -I)
BETWEEN:
MR. JEOFREY FERNANDES,
AGED 55 YEARS,
S/O LATE GREGARY FERNANDES,
R/AT D.NO.3/107/9 II SITE,
BAJJODY, KULSAHEKAR POST,
BIKARNAKATTE, MANGALORE,
D.K-575 008. ... APPELLANT
(BY SRI. PUNDIKAI ISHWARA BHAT, ADV.)
AND:
1. MR. FELIX MORAS, AGED 51 YEARS,
S/O JACOB MORAS,
R/AT H.NO.7-832, 'DAYALL',
KANKANADY GUTHU,
MANGALORE TALUK, D.K-575 002.
2. THE NATIONAL INSURANCE CO. LTD.,
II FLOOR, RASIK CHAMBERS,
OPP. CENTRAL MARKET,
MANGALORE - 575 001.
REPRESENTED BY ITS MANAGER ... RESPONDENTS
(BY SRI. H.S.LINGARAJ, ADV. FOR R-2,
VIDE ORDER DATED 15.03.2019, NOTICE TO R-1 IS
DISPENSED WITH)
MFA.762/2016
2
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:19.06.2015 PASSED IN MVC NO.120/2014 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT,
MANGALORE., D.K. PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION HIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The Claimant, being dissatisfied with the
compensation of Rs.4,25,141/- awarded by the Tribunal,
is in appeal.
2. The fact that an accident occurred on 25.09.2013
when the claimant was riding his scooter when it was hit
by TATA Sumo is not in dispute. The further fact that the
TATA Sumo was insured is also not in dispute.
3. The Tribunal on consideration of the evidence
adduced before it has recorded a finding that the
claimant has suffered the following injuries.
1. 5 x 1 cm laceration on the left parietal area.
2. Small abrasion on the upper lip
MFA.762/2016
3. 5 x 1 cm laceration on the left parietal area
4. Small laceration on the left ear lobule
5. Small abrasion present over the face, forehead,
cheek, perorbital area.
6. Fracture of left ala of sacrum
7. Fracture of right acetabular roof
8. Fracture of inferior right pubic ramus
9. Right renal lacerantion
10. contusion of the liver
11. Fracture of right transverse process of L1, bilateral
transverse process of 14 verbebra.
12. Left tempero parietal subudralhaematoma
13. Acute subarachnotohaemorrhage.
4. The Tribunal has proceeded to award a sum of
Rs.5,000/- each towards the simple injuries, a sum of
Rs.20,000/- towards Injury No.6 and a sum of
Rs.10,000/- each towards Injury Nos.7 to 13. In all, a
sum of Rs.1,15,000/- is awarded towards pain and
suffering.
MFA.762/2016
5. The Tribunal has also awarded a sum of
Rs.36,800/- towards attendant charges, extra food,
nourishment and conveyance charges, a sum of
Rs.1,24,100/- towards medical expenses and a sum of
Rs.1,49,241 has also been awarded towards loss of
income towards loss of earned leave. In all, a sum of
Rs.4,25,141/- has been awarded by the Tribunal.
6. Learned counsel for the claimant contended that
having regard to the fact that the claimant had suffered
four fractures, head injuries, an Acute Subarachnoto
haemorrhage, right renal laceration and contusion of the
liver, an award of just Rs.1,15,000/- towards pain and
suffering was highly in adequate. He submitted that the
Tribunal has also committed a serious error in not
awarding any sum towards loss of amenities. Having
regard to the fact the claimant was hospitalized for a
period of 71 days, an award of just Rs.36,800/- towards
attendant charges, extra food, nourishment and
conveyance charges was also inadequate.
MFA.762/2016
7. I have considered the submission of learned
counsel for the appellant and perused the materials on
record.
8. It cannot be in dispute that the claimant did suffer
five simple injuries and six grievous injuries. Out of the
six grievous injuries, the claimant did suffer four
fractures and also a right renal laceration, contusion of
the liver and acute subarachnoto haemorrhage. In my
view, having regard to the nature of injuries sustained
by the claimant, interest of justice would be sub-served,
if a sum of Rs.1,15,000/- was awarded by the Tribunal
towards pain and suffering is enhanced by a sum of
Rs.50,000/- to Rs.1,65,000/-.
9. Since, the claimant was hospitalized for a period of
71 days the sum of Rs.36,800/- awarded towards
attendant charges, extra food, nourishment and
conveyance charges would also be required to be
enhanced to a sum of Rs.50,000/-.
MFA.762/2016
10. The compensation awarded by the Tribunal towards
medical expenses and loss of income, being based on
documentary evidence do not call for any interference.
11. Having regard to the fact that the claimant had
suffered four fractures, right renal laceration, contusion
of the liver and acute subarachnoto haemorrhage and
the claimant have been hospitalized for a period of 71
days, it will have to be held that the claimant did suffer
grievous injuries and there would also be a consequential
debilitating effect on him as result of the injuries. The
Tribunal, in my view, ought to have awarded a sum of
Rs.50,000/- towards loss of amenities. I am therefore of
the view that the claimant is entitled to a sum of
Rs.50,000/- towards loss of amenities.
12. As a result of the above, the claimant is held
entitled for following compensation:
1 Pain and sufferings 1,65,000/-
2 Attendant charges, extra food, 50,000/-
MFA.762/2016
nourishment and conveyance charges
3 Medical expenses 1,24,100/-
4 Loss of income towards loss of E.L 1,49,241/-
5 Loss of amenities 50,000/-
TOTAL 5,38,341/-
13. The enhanced amount shall carry interest at 6%
p.a. from the date of petition till its realisation.
14. The Insurance Company shall deposit the
compensation amount within a period of eight weeks
from the date of receipt of a certified copy of this
judgment.
Sd/-
JUDGE
KTY.
