M/S. CHOLAMANDALAM GENERAL v. R2 SERVED BUT UNREPRESENTED)

(BY SRI. GURUDEV PRASAD K T., ADVOCATE) AND:

M/S. CHOLAMANDALAM GENERAL …APPELLANT INSURANCE CO. LTD., MOTOR CLAIMS HUB, UNIT NO.04, 9TH FLOOR, LEVEL – 06, GOLDEN HEIGHTS COMPLEX, INDUSTRIAL SUBURB, 4TH M BLOCK, 59TH C BLOCK, RAJAJINAGAR, BENGALURU - 560 010. BY ITS MANAGER. K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA

MR. N. RAJENDRA PRASAD, S/O NARAYANA REDDY, WARD NO.8, LAVANYA FILLING STATION, HANUMANAPALYA, MULBAGAL ROAD, SRINIVASAPURA TOWN, KOLAR - 563 135. (BY SRI.O.MAHESH, ADVOCATE FOR R1; R2 SERVED BUT UNREPRESENTED) …RESPONDENTS - 2 - NC: 2024:KHC:24775 MFA No. 6354 of 2018 THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.03.2018 PASSED IN MVC NO.1569/2017 ON THE FILE OF THE XV ADDITIONAL SMALL CAUSES JUDGE & XXIII ACMM, MEMBER, MACT, BENGALURU (SCCH-19), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION OF COMPENSATION. ENHANCEMENT SEEKING AND THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988, challenging the judgment and award dated 17.03.2018 in MVC No.1569/2017 passed by the learned MACT and XV Addl. Judge SCCH-19, Mayo Hall Unit, Bengaluru.

2. The claimant filed a petition under Section 166 of the MV Act, seeking just and proper compensation, stating that on

13.05.2015, while he was riding a motorcycle, a tanker lorry driven in a rash and negligent manner collided with his motorcycle. As a result, the claimant fell and sustained grievous injuries. The Tribunal, after appreciating the evidence on record and attributing 10% contributory negligence to the claimant, awarded a total compensation of Rs.15,06,200/-.

Heard the learned counsel for the parties. Perused the Trial Court records.

The fact that the claimant sustained accidental injuries on 13.05.2015 is not in dispute, and the claimant was 37 years old on the date of the accident. The police, after investigation, - 3 - NC: 2024:KHC:24775 MFA No. 6354 of 2018 submitted a charge sheet against the driver of the tanker lorry without attributing any negligence to the claimant. The Tribunal attributed negligence to the claimant solely because the rough sketch of the accident was not produced. However, there was no suggestion that the claimant was negligent or contributed to the accident. In the absence of evidence indicating that the claimant contributed to the accident, the Tribunal's finding that the claimant was 10% contributorially negligent is not legally sustainable.

The compensation amount awarded for the loss of future income is just and proper. The claimant sustained a clavicle fracture on the right side, a bimalleolar fracture, toe and finger crush injuries on the right side, a right brachial plexus injury (Infraclavicular type), and right shoulder loss of ER. The functional disability of the claimant was assessed at 25%, which is just and proper.

Given the nature of the injuries and the fact that the claimant was an in-patient for 29 days, the awarded compensation is appropriate., the compensation awarded by the Tribunal is re- assessed as follows: Compensation under different Heads Pain and sufferings Medical expenses Nourishment, food, conveyance and attendant charges Towards loss of future income due to permanent disability As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) 60,000 10,48,944 13,000 60,000 10,48,944 30,000 4,05,000 4,05,000 - 4 - NC: 2024:KHC:24775 MFA No. 6354 of 2018 Towards future medical expenses Loss of amenities Loss of income during laid up period Total 20,000 - - 20,000 40,000 27,000 15,56,944 16,30,944

The claimant is entitled to a total compensation of Rs.16,30944/- as opposed to Rs.15,56,944/- awarded by the Tribunal. The enhanced compensation shall carry interest at 6% p.a. from the date of petition till realisation.