(MV-I) v. LAKSHMI T

Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.1.

3. The status of the parties before the Tribunal is retained for the sake of convenience. - 3 - NC: 2024:KHC:28873 MFA No. 1663 of 2021

4. The case of the appellant/claimant is that he was filed a claim petition before the Tribunal under Section 166 of Motor Vehicles Act (for short ‘M.V. Act’) claiming compensation of Rs.40,00,000/- for the injuries sustained by him in a road traffic accident that occurred on 14.10.2018 at about 5.45 p.m., when he was walking on the extreme left side road of Kanakapura Bengaluru main road, near Paduvanagere Cross, NH-209, Kasaba Hobli, Kanakapura Taluk, Ramanagar, at that time, a lorry bearing No.KA-42-A-5640 driven in a reverse direction and down gradient from main road towards under road work for unloading the jelly in a rash and negligent manner and dashed to the claimant causing grievous injury. He was shifted to the Kanakapura Government Hospital and then admitted to Sanjay Gandhi Hospital, Bengaluru, was undergone treatment and his right hand was amputated above the elbow. Hence, he had claimed the compensation on various heads.

5. Respondent No.1 – owner of the vehicle has remained absent and placed exparte. On the other hand, respondent No.2 filed written statement by denying the rash and negligent, accident, injury, income and disability of the claimant and also taken contention that the lorry had no Fitness - 4 - NC: 2024:KHC:28873 MFA No. 1663 of 2021 Certificate, no permit and the driver has no driving license. Hence, he prayed for dismissal of the petition.

6. On the basis of pleadings, the tribunal framed three issues for consideration:

1. Whether the petitioner proves that, he has sustained grievous injuries due to RTA alleged to have been occurred on 14.10.2018 at about

5.45 p.m., near Paduvanagere Cross, NH-209 Road, Kanakapura, Bengaluru main Raod, Kanakapura Taluk, Ramanagara District, due to the rash and negligent driving of driver of the tipper lorry bearing registration No.KA-42-A- 5640?

2. Whether the Petitioner is entitled Compensation? If so, what amount and from whom?

3. What order or award?

7. In order to substantiate the case, the petitioner himself examined as PW.1 and also examined the doctor as PW.2 and got marked 19 documents as Exs.P1 to P19. The respondent has not let any evidence. - 5 - NC: 2024:KHC:28873 MFA No. 1663 of 2021

8. On the basis of material evidence, both oral and documentary and on hearing the submissions of learned counsel for both the parties, the Tribunal has awarded compensation of Rs.12,89,000/- as under: Compensation Amount Rs.1,00,000/- Rs.2,85,000/- Rs.40,000/- Heads of compensation Towards pain & sufferings Towards medical expenses Loss of income during laid up period Disability Towards and attendant charges Loss of future amenities and happiness Future medical expenses Marriage prospectus TOTAL food, nourishment Rs.5,19,000/- Rs.45,000/- Rs.1,00,000/- Rs.1,00,000/- Rs.1,00,000/- Rs.12,89,000/-

9. Being aggrieved by the meager compensation awarded by the Tribunal, the claimant is before this Court challenging the impugned judgment and award.

10. The learned counsel for appellant has seriously contented that the Tribunal committed an error in taking the income of Rs.11,000/- instead of taking Rs.14,000/- notional income as specified in the Legal Services Authority chart and the doctor who has examined deposed that there was amputation in the right hand above the elbow. The tribunal - 6 - NC: 2024:KHC:28873 MFA No. 1663 of 2021 considered only 27% to the whole body which is not correct. The Doctor has assessed 80% disability to the limb. Even if considering the Employees compensation Act, 80% would be the permanent disability. Therefore, the tribunal considering 27% disability to the whole body is not just and proper. The learned counsel submits that the compensation awarded under other heads also very meagre. Hence, prays for enhancement of compensation.

11. Per contra, the learned counsel for respondent has contended that 80% disability towards the particular limb and if it is considered 1/3rd it comes to 27%. Therefore, there is no need to enhance the compensation under the head disability. However, he admits that the income shall be considered as Rs.14,000/- as notional.

12. Having heard the arguments on both sides, the point that would arise for my consideration is: Whether the appellant is entitled enhancement of compensation? If so, to what extent? - 7 - NC: 2024:KHC:28873 MFA No. 1663 of 2021

13. On perusal of records, the accident occurred on

14.10.2018 due to rash and negligent driving of driver of lorry bearing registration No.KA-42-5640 is not in dispute. The police after investigation has filed the FIR-Ex.P1, Complaint-Ex.P2, Mahazar – Ex.P3, seizure mahazar – Ex.P4, Ex.P5-IMV report, Ex.P6-Sketch, Ex.P7-wound certificate, Ex.P8-charge sheet clearly reveals the accident was occurred due to negligence on part of the driver of the lorry. The owner of the lorry contested before the Tribunal. The only consideration before this Court is regarding quantum of compensation.

14. The tribunal has taken the income of the petitioner as Rs.10,000/- per month. The petitioner is aged about 33 years is said to be mason as well as agriculturist. Even if it is considered as agriculturist or coolie, as per the Legal Services authority chart for the accident occurred in year 2018, the notional income of the claimant would be considered as Rs.14,000/- per month. Therefore, taking income of the claimant as Rs.10,000/- per month is very less and the same is considered as Rs.12,500/- per month as notional income. As regards the disability of the claimant, PW.2 who is the doctor treated the claimant has opined that the petitioner has - 8 - NC: 2024:KHC:28873 MFA No. 1663 of 2021 undergone surgery and amputation of right upper limb and the doctor has assessed the disability of the upper limb as 80% and permanent residual physical disability of about 80%. The tribunal considered only 27% disability to the whole body. But the petitioner is a coolie worker and a mason and if he lost the right hand above the elbow it cannot be considered as 1/3rd disability. As per the Employee’s Compensation Act, 1923 Schedule 1 of part II at Serial No.3, where it is referred amputation form (20.32 Cms) from tip of acromion to less than (11.43 Cms) below tip of olecranon 70% is considered and the amputation below the shoulder with stump less than (20.32 Cms) from tip of acromion 80% is considered as earning capacity. On perusal of the photographs of the petitioner where he has lost right forearm above the elbow which clearly attracts the Sl.No.3 of the Workmen Compensation Act where 70% of disability towards the earning capacity. Therefore, it cannot be considered that the earning capacity would be considered as 70% instead of 80% suggested by the doctor and 27% taken by the tribunal. Accordingly, loss of income due to disability is calculates as follows: Rs.12,500/- x 12 x 16 x 70% = 16,80,000/-. - 9 - NC: 2024:KHC:28873 MFA No. 1663 of 2021

15. Hence, the loss of income due to disability would be Rs.16,80,000/- as against Rs.5,19,000/- awarded by the tribunal.

16. The tribunal has awarded Rs.1,00,000/- towards the head 'pain and suffering' and the same is retained.

17. As regards Medical Expenses, the tribunal has awarded Rs.2,85,000/- and the same is undisturbed.

18. The laid up period is taken as four months and calculated as Rs.12,500/- x 4 = Rs.50,000/-. Hence, I proposed to award Rs.50,000/- towards 'loss of income during laid up period'.

19. Towards the food, nourishment and attendant charges the tribunal has awarded Rs.45,000/- and the same is retained,

20. As regards loss of future amenities and happiness, the tribunal has awarded Rs.1,00,000/- and the same is retained.

21. The tribunal has awarded Rs.1,00,000/- towards future medical expenses and same is retained. - 10 - NC: 2024:KHC:28873 MFA No. 1663 of 2021

22. Though the tribunal awarded Rs.1,00,000/- towards the loss of marriage prospectus but there is no evidence produced by the claimant so he is unmarried and he is aged about 33 years and at Para 7 of the examination in chief he has stated that he is having family members to look after which reveals that he is a married person. Such being the case, awarding Rs.1,00,000/- towards loss of marriage prospectus does not arise and the same is set aside. However, the petitioner given evidence that he has to purchase the artificial limb which was valued Rs.5,29,991/- as per the estimation by Endout India Limited. By considering the facts and circumstances, I proposed award at least Rs.3,00,000/- towards the purchase of the artificial limb.

23. In view of the above, the claimant would be entitled to a total compensation of Rs.26,60,000/- as against Rs. Rs.12,89,000/- as mentioned in the table below: Heads Amount in Rs. Loss of earning capacity Rs.16,80,000/- Pain and sufferings Rs.1,00,000/- Medical expenses Rs.2,85,000/- Food, Nourishment etc Rs.45,000/- - 11 - NC: 2024:KHC:28873 MFA No. 1663 of 2021 Loss of laid up period Rs. 50,000/- Future amenities Rs.1,00,000/- Future medical expenses Rs.1,00,000/- Artificial limb Rs.3,00,000/- TOTAL Rs.26,60,000/- i) ii) Accordingly, I pass the following: ORDER The appeal is allowed-in-part; The judgment and award dated 06.02.2020 passed in MVC No.7222/2018 by the XVIII Additional Judge, Court of Small Causes, Bengaluru is modified; iii) The claimant would be entitled to a sum of Rs.26,60,000/- as against Rs.12,89,000/-; iv) The enhanced compensation amount shall be paid respondent-Insurance Company with interest @ 6% per annum within a period of two months from the date of receipt of a copy of this order (excluding future medical expenses and artificial limb); - 12 - NC: 2024:KHC:28873 MFA No. 1663 of 2021 v) Out of the enhanced compensation, 50% shall be released in favour of the claimant and 50% to be deposited in any nationalized bank in the name of petitioner; vi) Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay; vii) Draw award accordingly. SD/- (K.NATARAJAN) JUDGE HB List No.: 1 Sl No.: 19