RAMALINGAPPA v. MALAPPA & Ors.

Judgment

1. MALAPPA S/O PALAJJA MAJOR, R C OWNER OF MOTOR CYCLE R/O UPPALAGERE VILLAGE HIRIYUR TALUK CHITRADURGA DISTRICT.

2. THE BRANCH MANAGER BRANCH OFFICE NATIONAL INSURANCE COMPANY LIMITED B M COMPLEX, LAXMI BAZAR CHITRADURGA DISTRICT. ...RESPONDENTS

(BY SRI: A RAVISHANKAR, ADVOCATE FOR RESPONDENT NO.2, NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH VIDE ORDER DATED 27.2.2011) 2 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 29.9.2011 PASSED IN MVC NO.159/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T This appeal by the claimant is directed against the judgment and award dated 29.9.2011 passed in MVC No.159/2009 on the file of the Senior Civil Judge and Member, Addl. MACT, Hiriyur, (for short, ‘the Tribunal’). By the impugned judgment and award, the Tribunal has awarded a compensation of Rs.91,260/- with interest at 6% per annum from the date of petition till the date of realisation, on account of the injuries sustained by the claimant in the road traffic accident. The claimant has presented this appeal contending that the quantum of compensation awarded by the Tribunal is inadequate and it requires enhancement. 3

2. The claimant presented a claim petition under Section 166 of Motor Vehicles Act before the Tribunal contending that on 8.4.2009 at about 4 p.m. when he was moving along with his son M.Muruli on the left side of the road from Doddakatte Village to Uppalagere Village, near Sadashivappa’s house, a motor cycle bearing registration No.KA-16-R-6291 ridden by its rider in a rash and negligent manner came from backside and dashed against the claimant and due to the impact, he sustained grievous injuries. Immediately he was admitted to Government Hospital, Hiriyur, for treatment and thereafter shifted to Apoorva Hospital, Davangere, and there he was treated as an inpatient from 9.4.2009 to

29.4.2009 and underwent operation of his right leg. He further contended that he was aged 55 years at the time of accident and that he was an agriculturist by profession and that he was hale and healthy prior to the accident.

3. It is the further case of the claimant that he has spent considerable amount towards 4 medical, conveyance, nourishing food and attendant charges.

4. The said matter had come up for consideration before the Tribunal and the Tribunal, in turn, on careful evaluation of the oral and documentary evidence available on record, allowed the same in part, awarding a sum of Rs.91,260/- under different heads with interest at 6% per annum from the date of petition till the date of realisation. Being dissatisfied with the compensation awarded by the Tribunal, the claimant felt necessitated to present this appeal seeking enhancement of compensation.

5. The learned counsel for the appellant, at the outset, submitted that the Tribunal has erred in not awarding adequate compensation towards conveyance, nourishing food and attendant charges, and that the Tribunal has taken the income of the claimant at Rs.3,000/- per month to 5 assess loss of future income which is too meager in the facts and circumstances of the case and that the Tribunal has failed to appreciate the evidence available on record in a proper perspective and therefore, the impugned judgment and award is liable to be modified.

6. As against this, learned counsel appearing for the insurer inter-alia substantiated the impugned judgment and award passed by the Tribunal as just and proper. However, he fairly submitted that adequate compensation towards attendant charges, loss of earning during treatment period, and loss of future income may be awarded in accordance with law.

7. After careful consideration of the submission made by the learned counsel for the parties and on careful perusal of the impugned judgment and award passed by the Tribunal, what emerges is that occurrence of the accident and the resultant injuries suffered by the claimant 6 are not in dispute. Further, as per Exs.P.24 and P.26, the claimant was aged about 62 years at the time of the accident and he was an agriculturist by profession. The Tribunal has assessed the income of the claimant at Rs.3,000/- per month which is on the lower side. The accident has occurred on 8.4.2009. Having regard to the age, avocation and the year of accident, the income of the claimant is assessed at Rs.4,500/- per month. Further the claimant must have spent considerable amount towards conveyance, nourishing food and attendant charges. In future, the claimant may not be able to work as effectively as he was working prior to the accident. This aspect of the matter has not been looked into nor appreciated by the Tribunal.

8. As per Ex.P-10-Disability Certificate and the evidence of PW-2-Doctor, it is clear that the claimant has sustained fracture of right femur. The doctor has assessed the disability at 10% to the whole body. Considering the age of 7 appellant, the proper multiplier applicable is ‘7’ as per the Apex Court's decision in SARLA VERMA’s case (2009 ACJ 1298). As per the advice of the Doctor, the claimant must have taken rest at least for a period of three months due to the injuries sustained in the accident. Considering the above aspects, a sum of Rs.10,000/- is awarded towards conveyance, nourishing food and attendant charges as against Rs.3,600/-, Rs.13,500/- is awarded towards loss of earnings during treatment period at the rate of Rs.4,500/- per month for 3 months as against Rs.5,000/-, Rs.37,800/- towards loss of future income (Rs.4,500/- x 12 x 10% x ‘7’) as against Rs.25,200/- awarded by Tribunal.

9. Further, the Tribunal is justified in awarding a sum of Rs.25,000/- towards pain and sufferings and Rs.32,460/- towards medical expenses and therefore, it does not call for interference by this Court. 8

10. Accordingly, the claimant is entitled to compensation as under: Pain and sufferings Conveyance, nourishing food and Attendant charges Medical expenses Loss of earning during treatment period Loss of future income due to disability Rs.25,000/- Rs.10,000/- Rs.32,460/- Rs.13,500/- Rs.37,800/- Total Rs.1,18,760/- In all, the claimant is entitled to compensation of Rs.1,18,760/- as against Rs.91,260/- awarded by the Tribunal. There will be enhancement of Rs.27,500/- with interest at 6% per annum from the date of petition till the date of realisation.

11. For the foregoing reasons, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 29.9.2011 passed in MVC No.159/2009 on the file of the Senior Civil Judge and Member, Addl. MACT, 9 Hiriyur, is hereby modified, awarding a sum of Rs.27,500/- with interest at 6% per annum from the date of petition till the date of realisation, in addition to the compensation awarded by the Tribunal. Respondent No.2-Insurer is directed to deposit the enhanced compensation amount with interest within a period of three weeks from the date of receipt of a copy of the judgment and award. The enhanced compensation amount with interest shall be released in favour of the claimant, on deposit of the same by the insurer. Draw the award accordingly. KM Sd/- JUDGE