SRI KEMPAIAH v. THE NEW INDIA ASSURANCE COMPANY LTD

(WIFE OF DECEASED RC OWNER SRI RAGUNATH B S]

3. SRI NAGENDRA B R S/O LATE RAGUNATH B S MAJOR RESIDING AT WARD NO.8 MUNESWARA BADAVANE KETHIGANAHALLI BIDADI POST RAMANAGARA TALUK RAMANAGARA DISTRICT-562 109 (S/O DECEASED RC OWNER SRI RAGUNATH B S) …RESPONDENTS (BY SRI ASHOK N. PATIL, ADVOCATE FOR R-1., NOTICE TO R-2 & R-3 IS DISPENSED WITH V.O.D 25.03.2023) THIS MFA FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.22.11.2019 PASSED IN MVC NO.1095/2018 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT, BENGALURU, (SCCH-4), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 JUDGMENT This appeal is preferred by the appellant-claimant challenging the judgment and award dated 22nd November 2019 passed in MVC.No.1095/2018 by the XVIII Addl. Judge, Court of Small Causes and the Member - MACT, Bengaluru (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: On 22.1.2018 at about 8.10 a.m., the BMTC bus bearing Registration No.KA-01-FA-1792 stopped at Hejjala bus stop for picking up the passengers and Swaraj Mazda vehicle bearing Registration No.KA-01-AA-3476 was behind the BMTC bus and the claimant was sitting in the driver seat of the said Swarraj Mazda vehicle, at that time, the Tipper lorry bearing Registration No.KA-42-A-2143 driven by its driver with high speed and in a rash and negligent manner came and dashed to - 4 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 the hind side of the Swaraj Mazda vehicle, as a result, the said Swaraj Mazda vehicle hit the BMTC bus. Due to the occurrence of the accident, the claimant sustained grievous injuries and he was shifted to Rajarajeswari Medical College hospital, Bangalore, where he was treated as an in-patient and expended Rs.1,00,000/- for medical treatment.

3.1 It is stated that the claimant was hale and healthy prior to the occurrence of the accident and was working as a driver earning Rs.15,000/- per month. Due to the occurrence of the accident, he became permanently disabled and lost his earning capacity. Hence, the claimant preferred a claim petition seeking compensation.

3.2 On service of notice, Respondent Nos.1 to 3 appeared through their counsels, filed written statement denying the averments made in the claim petition including age, avocation, income and negligence attributed against driver of the Tipper lorry and sought for dismissal of the claim petition.

3.3 On the basis of the pleadings, the Tribunal framed relevant issues for consideration. - 5 - NC: 2024:KHC:3255 MFA No. 2492 of 2021

3.4 In order to substantiate the issues and establish the case, the claimant No.1 got examined himself as PW.1 and got marked Ex.P1 to Ex.P16. On the other hand, the respondents did not lead evidence nor produced any documents in support of their case.

3.5 Based on the material evidence, both oral and documentary, the Tribunal awarded compensation of Rs.1,14,000/- with interest at the rate of 6% per annum and directed Respondent No.1/Insurance Company to pay the compensation within 30 days.

4. It is the vehement contention of learned counsel for the appellant/claimant that the claimant was working as a driver earning Rs.15,000/- per month and the income assessed by the Tribunal is on the lower side. He also contended that the Tribunal has failed to take into consideration the magnitude of the injuries suffered by the claimant and awarded meager compensation on all heads. On these grounds, he seeks to allow the appeal and consequently enhance the compensation.

5. Per contra, learned counsel representing the insurance company contends that there is no error, illegality or perversity - 6 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 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. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the entire material on record.

7. In order to substantiate and establish the aspect of negligence and injuries suffered, the claimant has produced Ex.P1 to Ex.P16, the police records as well as the medical records. The police records clearly depict registration of FIR and laying of the charge sheet against driver of the Tipper lorry, which have not been questioned. Therefore, negligence is rightly attributed against driver of the Tipper lorry. The medical records go to show the magnitude of the injuries suffered by the claimant, so also the medical expenses incurred by the claimant.

8. Now coming to the age, avocation and income of the claimant, though the claimant pleaded that he was working as - 7 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 a driver earning Rs.15,000/- per month, nothing is placed on record to prove the same. The Tribunal has taken the income of the claimant to be Rs.10,000/- per month, whereas the Legal Services Authority chart prescribes the notional income of Rs.12,500/- per month for the accident of the year 2018. Accordingly, the same is taken as income in the present case. Admittedly, there is no disability suffered by the claimant.

9. Towards medical expenses, the Tribunal awarded a compensation of Rs.14,000/- on the basis of the actual bills produced by the claimant, which does not call for interference.

10. Towards 'pain and suffering', the Tribunal awarded a compensation of Rs.40,000/-, which is on the lower side and I deem it appropriate to award additional Rs.10,000/- under this head.

11. Towards loss of income during the period of treatment, the Tribunal awarded a compensation of Rs.20,000/-, which is on the lower side. Considering the magnitude of injuries suffered by the claimant, atleast three months is required to recuperate and get back to normal day to day activities. In view of this Court enhancing the income to - 8 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 Rs.12,500/- per month, Rs.37,500/- (Rs.12,500 x 3) is awarded under this head.

12. Towards food, nourishment and conveyance, attendant charges, the Tribunal awarded Rs.10,000/- which is on the lower side and I deem it appropriate to award additional Rs.10,000/- under this head.

13. Towards loss of future amenities, the Tribunal awarded Rs.30,000/-, which does not call for interference and I deem it appropriate to retain the same.

14. In discussion, appellant/claimant would be entitled to total compensation of Rs.1,51,500/- as against Rs.1,14,000/- awarded by the Tribunal, as mentioned in the table below: Sl. No. Head of compensation 1 Pain and suffering 2 Medical expenses Amount of compensation awarded Rs.50,000-00 Rs.14,000-00 3 Loss of income during laid up period Rs.37,500-00 - 9 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 4 Towards food, nourishment and attendant charges Rs.20,000-00 5 Loss of future amenities and Rs.30,000-00 happiness Total Rs.1,51,500-00

15. Accordingly, I pass the following: O R D E R i) The appeal is allowed in part; ii) The appellant/claimant is entitled to total compensation of Rs.1,51,500/- (Rupees one lakhs fifty-one thousand five hundred only) as against Rs.1,14,000/- awarded by the Tribunal along with interest at 6% per annum from the date of petition till realization. iii) The impugned judgment & award passed by the Tribunal in MVC No.1095/2018 is modified accordingly. iv) The enhanced compensation amount shall be paid by the 1st respondent /Insurance Company with interest at 6% per annum, within a period - 10 - NC: 2024:KHC:3255 MFA No. 2492 of 2021 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 upon proper verification; vi) All other terms and conditions stipulated by the Tribunal shall stand intact. Sd/- JUDGE GSS List No.: 1 Sl No.: 30