SMT.SUMATHI POOJARTHI v. SRI T H SHIVASHANKAR

(BY SMT.Y.ARUNA.,ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH V.O.D 06.07.2023) THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO CALL FOR RECORDS AD MODIFY THE JUDGMENT AND AWARD DATED 11.02.2019 PASSED IN MVC NO.1150/2017, BY THE ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL & PRL.SENIOR CIVIL JUDGE UDUPI AND ENHANCE THE COMPENSATION AS PRAYED FOR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is preferred by the appellant - claimant challenging the judgment & award dated 11th February 2019 passed in MVC No.1150/2017 on the file of the Prl. Senior Civil Judge & Addl. MACT, Udupi (for short 'the Tribunal). This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal.

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: - 3 - NC: 2024:KHC:10417 MFA No. 758 of 2020 On 5.6.2016 the claimant was travelling as a passenger in a autorickshaw bearing registration No.KA- 20C-4195. When the autorickshaw reached near Community Hall, Koppalangady of Muloor village, Udupi, at that time driver of the car bearing registration No.KA-21N- 8291 came in a rash and negligent manner and dashed against the autorickshaw from behind. As a result of the accident, the claimant sustained injuries and was admitted to Adarsh hospital, Udupi, where she was in-patient for a period of 30 days and later, she was admitted to Mangala hospital, Mangalore for removal of implant. Due to the injuries suffered and the expenses incurred, claimant filed claim petition seeking compensation.

3.1 On service of notice, Respondent Nos.1 and 2 filed written statement denying the averments made in the claim petition including negligence attributed against driver of the offending car and sought for dismissal of the claim petition. - 4 - NC: 2024:KHC:10417 MFA No. 758 of 2020

3.2 Based on the pleadings, the Tribunal framed the relevant issues for consideration.

3.3 In order to substantiate the issues and establish the case, the claimant examined herself as PW.1 and doctor as PW.2 and got marked Ex.P1 to Ex.P21. The respondents did not adduce any evidence nor produced any documents on their behalf.

3.4 On the basis of the material evidence, both oral and documentary and after hearing learned counsel for the parties, the Tribunal awarded total compensation of Rs.6,86,543/- with interest at 6% per annum and directed the respondent No.2/insurer to deposit the compensation amount within one month.

3.5 Being aggrieved by the meager and inadequate compensation awarded by the Tribunal, the claimant is before this Court seeking enhancement of compensation.

4. It is the vehement contention of learned counsel for the appellant that the income of the appellant assessed - 5 - NC: 2024:KHC:10417 MFA No. 758 of 2020 by the Tribunal is on the lower side and the compensation awarded under different heads is not in accordance with the material on record. Therefore, he seeks to allow the appeal and enhance the compensation.

5. Per contra, learned counsel representing the insurance company contends that there is no error, illegality or perversity in the impugned judgment and award passed by the Tribunal. He further contends that the Tribunal awarded just and reasonable compensation under all heads, in accordance with the material evidence, both oral and documentary and the same does not call for interference.

6. Having heard the learned counsel for the parties and perused the material on record, it is seen that the claimant has produced the documents as per Exs.P1 to P21, out of which, Ex.P1 to Ex.P7 are the Police records, which clearly depict registration of the FIR and filing of charge sheet against the rider of the offending vehicle and same has not been challenged or controverted. Therefore, - 6 - NC: 2024:KHC:10417 MFA No. 758 of 2020 the tribunal rightly attributed the negligence against the rider of the offending vehicle. Ex.P8 to Ex.P21 are the medical records, sheet, medical bills and prescriptions, which clearly depict the injuries sustained and the medical expenditure met by the claimant.

7. Now coming to the age, avocation and income of the claimant, no material is before the Court with regard to proof of income of the claimant. In the absence of the same, the Tribunal has taken the income of the claimant to be Rs.6,000/- per month, whereas the Legal Services Authority chart prescribes the notional income of Rs.9,500/- per month for the accident of the year 2016. Accordingly, the same is taken as income for computation in the present case as against Rs.6,000/- taken by the Tribunal. The claimant was aged 54 years as on the date of accident and the appropriate multiplier would be '11', which is rightly applied by the tribunal and the same does not call for interference. - 7 - NC: 2024:KHC:10417 MFA No. 758 of 2020

8. The doctor has been examined as PW.2 and he has deposed that the claimant has suffered permanent total disability of 54%. The Tribunal on appreciation of evidence of the doctor and considering the age, avocation and nature of injuries sustained by the claimant assessed the functional disability at 27% to the whole body, which does not call for interference.

9. In view of the above, loss of future income would be Rs.3,38,580/- (Rs.9,500 x 12 x 11 x 27%).

10. The tribunal awarded Rs.75,000/- towards pain and suffering, which does not call for interference and the same is retained.

11. The Tribunal awarded Rs.2,81,703/- towards medical expenses on the basis of the actual bills produced by the claimant, which does not call for interference.

12. The Tribunal awarded Rs.36,000/- towards loss of income during laid up period, which is on the lower side. Considering the magnitude of injuries suffered by - 8 - NC: 2024:KHC:10417 MFA No. 758 of 2020 the claimant, atleast six months is required to recuperate and get back to normal day to day activities. In view of this Court enhancing the income to Rs.9,500/- per month, Rs.57,000/- (Rs.9,500 x 6) is awarded under this head.

13. The tribunal awarded Rs.15,000/- towards conveyance food, nourishment and attendant charges. Whereas, the claimant was in-patient for 29 days. Therefore, Rs.29,000/- is awarded under this head.

14. The tribunal awarded Rs.45,000/- towards loss of amenities. However, this Court deems it appropriate to award additional amount of Rs.25,000/-. In all, Rs.70,000/- is awarded under this head.

15. The tribunal awarded Rs.20,000/- towards future medical expenses, which does not call interference and the same is retained.

16. In view of the above, the claimant would be entitled to a total compensation of Rs.8,71,283/- as - 9 - NC: 2024:KHC:10417 MFA No. 758 of 2020 against Rs.6,86,543/- awarded by the Tribunal, as mentioned in the table below: Sl. No. Head of compensation Amount of compensation awarded 1 Pain and suffering Rs. 75,000-00 2 Loss of future income Rs.3,38,580-00 3 Medical expenses Rs.2,81,703-00 4 Loss of income during laid up Rs. 57,000-00 period 5 Conveyance, food, Rs. 29,000-00 nourishment, attendant charges 6 Loss of amenities in life 7 Future medical expenses Total Rs. 70,000-00 Rs. 20,000-00 Rs.8,71,283-00

17. Accordingly, I pass the following: O R D E R The appeal is allowed in part. The impugned Judgment & Award dated 11th February 2019 passed by the Tribunal in MVC No.1150/2017, is modified. i) ii) iii) The appellant/claimant would be entitled to compensation of Rs.8,71,283/- (Rupees eight - 10 - NC: 2024:KHC:10417 MFA No. 758 of 2020 lakhs seventy-one thousand two hundred and eighty-three only) as against Rs.6,86,543/- awarded by the Tribunal alongwith interest at 6% per annum. iv) The enhanced compensation amount alongwith interest shall be deposited by the respondent no.2/insurer within a period of four weeks from the date of receipt of copy of this judgment. v) The compensation amount shall be released in favour of the appellant-claimant as per the tribunal proper identification. vi) All other terms and conditions stipulated by the Tribunal shall stand intact. vii) Registry is directed to transmit the original records to the jurisdictional Tribunal forthwith. Sd/- JUDGE GSS List No.: 1 Sl No.: 64