SRI CHANDRA POOJARI v. AVINASH

GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:2315 MFA No. 4209 of 2020 DATED 20.08.2019 PASSED IN MVC NO.988/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION OF COMPENSATION ENHANCEMENT SEEKING AND THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This appeal is preferred by the appellant - claimant challenging the judgment & award dated 20th August, 2019 passed in MVC No.988/2017 by the Court of Senior Civil Judge & Addl. MACT, Kundapura ('Tribunal' for short). 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 21.3.2017 when the claimant was riding his motorcycle bearing Registration No.KA-20-EH-0258 Kundapura side towards Koteshwara side and when the motorcycle reached near Shastri Circle on NH-66, Kundapura Kasaba village, Kundapura taluk, at that time lorry bearing - 3 - NC: 2024:KHC:2315 MFA No. 4209 of 2020 Registration No.KA-18-A-7832 driven by its driver in a high speed and rash and negligent manner came from Kundapura towards Koteshwara and dashed to the rear side of the motorcycle leading to the occurrence of the accident. Due to the impact of the accident, the claimant fell down and sustained grievous injuries. He was shifted to Chinmayi hospital, Kundapura, where he was treated as an in-patient from

21.3.2017 to 25.3.2017. Thereafter, the claimant was treated as an out-patient. It is pleaded that he spent a sum of Rs.1,10,000/- towards medical expenses and hospitalization, Rs.20,000/- towards food and extra nourishment, Rs.20,000/- towards nursing and attendant charges and Rs.10,000/- towards conveyance charges.

3.1 It is also pleaded that the claimant was hale and healthy prior to the occurrence of the accident and worked as coolie earning Rs.15,000/- per month. Due to the injuries sustained by the claimant in the road traffic accident, he suffered permanent disability and so also emotional and mental trauma. Hence, he the claim petition seeking compensation against the respondents. - 4 - NC: 2024:KHC:2315 MFA No. 4209 of 2020

3.2 On service of notice, Respondent No.1 remained absent and he was placed exparte and Respondent No.2 - Insurance Company filed the detailed written statement before the Tribunal denying the averments made in the claim petition. Respondent No.2 denied the claim of the claimant including age, avocation and income and contended compensation claimed is exorbitant and without any basis. However, it is admitted that the lorry involved in the accident was covered under the policy of insurance as on the date of the accident. On these grounds, learned counsel sought for dismissal of the claim petition.

3.3 On the basis of the pleadings, the Tribunal framed relevant issues for consideration.

3.4 In order to substantiate the issues and establish the case, the claimant examined himself as PW.1 and got marked Ex.P1 to Ex.P61, whereas the 2nd respondent produced the Insurance policy as Ex.R1, but did not adduce any evidence.

3.5 Based on the material placed on record, both oral and documentary, the Tribunal awarded total compensation of Rs.3,39,472/- with interest at 9% per annum from the date of - 5 - NC: 2024:KHC:2315 MFA No. 4209 of 2020 petition till the date of deposit. The 2nd respondent - Insurance Company was directed to deposit the compensation amount within 30 days.

3.6 Being aggrieved by the meager compensation awarded by the Tribunal, the appellant/claimant is before this Court.

4. It is the vehement contention of learned counsel for the appellant/claimant that the Tribunal assessed the income of the claimant on the lower side and not taken into account the notional income chart of the Legal Services Authority. The Tribunal committed a serious error in not awarding just and reasonable compensation under different heads. Hence, he seeks to allow the appeal and consequently enhance the compensation.

5. Per contra, learned counsel representing the Insurance Company vehemently contends that there is absolutely no error or illegality committed by the Tribunal which would warrant interference by this Court to enhance the compensation. He also contends that the compensation awarded by the Tribunal is on the higher side and infact the claimant himself admitted that - 6 - NC: 2024:KHC:2315 MFA No. 4209 of 2020 he was hale and healthy during the period of treatment and hence question of loss of income during laid up period is not warranted to be paid to the claimant. He also contends that the interest awarded by the Tribunal is on the higher side and the same requires to be reduced. On these grounds, he seeks for dismissal of the appeal.

6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant as well as learned counsel for the Insurance Company.

7. Having heard learned counsel for the parties and having perused the impugned judgment & award passed by the Tribunal, it is not in dispute that the accident occurred on

21.3.2017 between the motorcycle ridden by the claimant and the lorry. To establish this aspect of involvement of the vehicle, the claimant produced Ex.P1 to Ex.P61. Out of which, Ex.P1 to Ex.P7 are the Police records which clearly establish the fact that the FIR is registered against the driver of the offending vehicle, which is a lorry and the negligence is rightly attributed the driver of the offending vehicle and consequently owner and the Insurance Company. - 7 - NC: 2024:KHC:2315 MFA No. 4209 of 2020

8. Now, coming to the age, avocation and income, the Tribunal taken the income of the claimant to be Rs.9,000/- per month as on the date of occurrence of the accident. However, the notional income chart of the Legal Services Authority prescribes the income of Rs.11,000/- for the accident of the year 2017 and hence Rs.11,000/- is to be taken as income of the claimant. The doctor adduced evidence in the form of PW.1 and opined that there is a disability to an extent of 22% to the right upper limb. However, he has not pleaded with regard to whole body disability. The Tribunal rightly assessed the functional disability to be 11% to the whole body, which does not call for interference. In view of the above, loss of income due to disability would be Rs.11,000 x 12 x 16 x 11% = Rs.2,32,320/- as against Rs.1,90,080/- awarded by the Tribunal.

9. Towards pain and suffering; medical expenses; conveyance, diet and attendant charges; and loss of income during laid up period, the Tribunal awarded Rs.80,000/-, Rs.22,392/-, Rs.20,000/- and Rs.27,000/- and same is just and proper and does not call for interference. - 8 - NC: 2024:KHC:2315 MFA No. 4209 of 2020

10. The Tribunal has not awarded compensation towards loss of amenities. I deem it appropriate to award Rs.25,000/- under this head.

11. In view of the above, the claimant would be entitled to a total compensation of Rs.4,06,712/- as against Rs.3,39,472/- as mentioned in the table below: Sl. No. Head of compensation Amount of compensation awarded 1 Loss of income due to disability Rs.2,32,320-00 2 Towards pain and suffering Rs. 80,000-00 3 Towards medical expenses Rs. 22,392-00 4 Towards conveyance, diet and attendant charges Rs. 20,000-00 5 Towards loss of income during Rs. 27,000-00 laid up period 6 Loss of amenities Rs. 25,000-00 Total Rs.4,06,712-00

12. The Tribunal has awarded interest at the rate of 9% per annum on the compensation amount. Though learned counsel for the Insurance Company vehemently contends that - 9 - NC: 2024:KHC:2315 MFA No. 4209 of 2020 it is on the higher side, the fact remains that Insurance Company has not filed any appeal. In view of the above, the claimant cannot be put to worst condition or penalized for filing the present appeal and therefore the interest awarded by the Tribunal at 9% per annum on the compensation amount of Rs.3,39,472/- cannot be reduced and the same is retained. However, the enhanced compensation amount shall carry interest at the rate of 6% per annum.

13. 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.4,06,712/- (Rupees four lakhs six thousand seven hundred and twelve only) as against Rs.3,39,472/- awarded by the Tribunal. iii) Interest awarded by the Tribunal at the rate of 9% per annum on the compensation amount of Rs.3,39,472/- is retained. The enhanced compensation amount shall be paid by the - 10 - NC: 2024:KHC:2315 MFA No. 4209 of 2020 respondent No.2 - Insurance Company with interest at 6% per annum, within a period of four weeks from the date of receipt of copy of this judgment. iv) The impugned judgment & award passed by the Tribunal in MVC No.988/2017 is modified accordingly. 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.: 19