Karnataka High Court · 2024

2. SRI. JIYARUL MANDAL, S/O SAMSER MANDAL, (AGE OF R 2 NOT KNONW TO APPELLANT), NO.10, ADARSHA NAGAR, MALUR, MALUR TALUK, KOLAR DISTRICT-563 102. (BY SRI. PRADEEP B.,ADVOCATE FOR R1; NOTICE TO R2 D/W V/O DATED 06.01.2023) …RESPONDENTS - 2 - NC: 2024:KHC:7940 MFA No. 7 of 2023 THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.07.2022 PASSED IN MVC NO.4720/2019 ON THE FILE OF THE VII ADDITIONAL SCJ AND ACMM, MEMBER, MACT-3, BENGALURU, 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 preferred by the claimant challenging the judgment and award dated 02.07.2022 passed by Motor Accident Claims Tribunal Court of Small Causes, Bengaluru (for short ‘the Tribunal') in MVC No.4726/2019. This appeal is founded on the premise of inadequacy of compensation. Hence, the appellant seeks enhancement of compensation.

2. Parties to the appeal shall be referred to as per their status before the tribunal.

3. Brief facts of the case are as under; That on 21.07.2019 at about 06.15 a.m when the petitioner was proceeding as Cleaner in Tata Canter bearing No.KA-19-C-4557, near Seethanayakanahalli Village, the driver of Canter vehicle drove the same in rash and negligent manner - 3 - NC: 2024:KHC:7940 MFA No. 7 of 2023 with high speed and dashed to the Lorry bearing No.TN-34-W- 2318 which was coming from Hosur Road towards Malur. Due to this the petitioner had sustained grievous injuries. Later the petitioner had taken to Government hospital, Malur where he took first aid treatment and then shifted to Bowring and Lady Curzon hospital, Bengaluru and admitted as inpatient for 15 days. The claimant has spent huge amount towards treatment and incidental expenses.

3.1 It is stated that the claimant spent Rs.2,00,000/- for medical treatment and other expenses and the claimant was hale and healthy prior to the occurrence of accident, aged about 20 years and he was working as a cleaner and earning a sum of Rs.15,000/- per month. Due to the occurrence of accident and injuries sustained, claimant became disabled to perform his day to day activities. Hence, he filed a claim petition seeking enhancement.

3.2 On service of notice, respondent No.2 - owner of the offending vehicle remained absent. Respondent No.1 - Insurance Company appeared through its counsel and filed statement of objections denying the averments made in the claim petition including the age, avocation, income and magnitude of the injuries suffered so also the negligence - 4 - NC: 2024:KHC:7940 MFA No. 7 of 2023 attributed against the driver of the Canter vehicle. Therefore, sought for dismissal of the claim petition on basis of reasons assigned in the objections.

3.3 On the basis of pleadingly, the tribunal framed relevant issues for consideration.

3.4 In order to substantiate the issues and to establish the case, claimant got examined himself as PW1 and witnesses examined as PW2 and PW3 and got marked documents as Exs.P1 to P25. On the other hand, respondent marked witnesses as R.W.1 and R.W.2 and got marked documents as Ex.R.1 to R.5.

3.5 On the basis of materials evidence, both oral and documentary and on hearing the submission of learned counsel for both the parties, tribunal has awarded compensation of Rs.4,13,571/- with interest @ 6% p.a. and respondent No.1 - Insurance Company was directed to pay the compensation. Being dissatisfied with the meager compensation, claimant before this Court for seeking enhancement.

4. Having heard learned counsel for appellant and learned counsel for respondent - Insurance Company, perused the impugned judgment and award, it is not in dispute that on

21.07.2019 at about 06.15 a.m when the petitioner was - 5 - NC: 2024:KHC:7940 MFA No. 7 of 2023 proceeding as Cleaner in Tata Canter bearing No.KA-19-C- 4557, near Seethanayakanahalli Village, the driver of Canter vehicle drove the same in rash and negligent manner with high speed and dashed to the Lorry bearing No.TN-34-W-2318 which was coming from Hosur Road towards Malur. Due to this the petitioner had sustained grievous injuries. In order to establish these aspects, the claimant has produced the documents as Exs.P1 to P25 which are the police records and medical records of the claimant. The police records clearly depicts the FIR and Charge Sheet laid against the driver of the offending vehicle. Hence, negligence is rightly established by the driver of the offending vehicle.

5. Now coming to the question of age, avocation, Income and disability for awarding the compensation, age of the claimant was 20 years as on the date of occurrence of accident. The appropriate multiplier would be '18' which is correctly taken by the tribunal. PW4 - Doctor has opined that the claimant disability to the limb at 41% and to the whole body at 14% and he has admitted that malleolus fracture can be caused while driving the vehicle. The tribunal not believed the version of the doctor in its entirety and awarded disability at 10% to the whole body. The claimant questioned the same to - 6 - NC: 2024:KHC:7940 MFA No. 7 of 2023 be on the lower side. On perusal of records considering the age, avocation and Income of the claimant, I am of the opinion that the disability requires to be enhanced to 12%. Hence, the disability is taken at 12% as against 10% taken by the tribunal. The income taken by the tribunal Rs.14,000, the same is retained. Therefore, loss of future earning capacity due to disability would be Rs.3,62,880/- (Rs.14,000/- x 12 x 18 x 12%) as against Rs.3,02,400/- awarded by the tribunal.

8. The tribunal has awarded a sum of Rs.25,000/- towards pain and suffering and Rs.8,171/- towards medical expenses, as per Exs.P11 and P12, the same is retained.

9. Towards loss in income during laid up period, the tribunal has awarded Rs.28,000/-. In view of enhancement of income this Court awards Rs.14,000/- per month under this head and the claimant would require atleast three months period to recuperate and to get back to his normal day to day activities. Therefore, the claimant would be entitled to Rs.42,000/- (Rs.14,000 x 3) under this head.

10. The tribunal has awarded a sum of Rs.20,000/- towards loss of amenities, nutritious food. Hence, Rs.35,000/- is awarded under this head. - 7 - NC: 2024:KHC:7940 MFA No. 7 of 2023

11. Tribunal has awarded a sum of Rs.10,000/- towards attendant charges and conveyance. Hence, Rs.15,000/- is awarded under this head.

12. Towards future medical expenses, the tribunal has awarded Rs.20,000/- as the claimant was impatient for 15 days. The same is retained.

13. In view of the above, the claimants would be entitled to a total compensation of Rs.5,08,051/- as against Rs.4,13,571/- as mentioned in the table below: Heads Amount in Rs. Loss of Future Earnings Pain and Sufferings Loss of Amenities, nutritious Laid-up period Conveyance and attendant charges Medical Expenses Future medical expenses TOTAL 3,62,880-00 35,000-00 25,000-00 42,000-00 32,000-00 8,171-00 20,000-00 5,08,051-00 - 8 - NC: 2024:KHC:7940 MFA No. 7 of 2023 Accordingly, I pass the following: ORDER i) The appeal is allowed-in-part; ii) The judgment and award dated 02.07.2022 passed by Motor Accident Claims Tribunal Court of Small Causes, Bengaluru in MVC No.4726/2019 is modified; iii) The claimant would be entitled to a sum of Rs.5,08,051/- as against the Rs.4,13,571/- with interest 6% p.a; iv) The enhanced compensation amount shall be paid by the respondent - Insurance Company with interest @ 6% p.a within a period of four weeks from the date of receipt of this order; v) Entire amount shall be released in favour of the claimant on proper Identification. Sd/- JUDGE THM List No.: 1 Sl No.: 48