ARUN KUMAR v. MOHAMMED IRSHAD

NO.363, SHRI HARI COMPLEX, SHEETHA VILAS ROAD, MYSORE-570008. POLICE NO. OG-10-1705-1801-00001859 VALIK FROM 8-7-2009 TO 7.7.2010 (BY SRI RAVI S. SAMPRETH, ADVOCATE FOR R3; VIDE ORDER DATED 20.02.2015, NOTICE TO R1, R2, R4 AND R5 DISPENSED WITH; SRI. P B RAJU, ADVOCATE FOR R6) …RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.8.2013 PASSED IN MVC NO.186/2010 ON THE FILE OF THE PRL.DISTRICT JUDGE & MMACT, CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2024:KHC:6796 MFA No. 4158 of 2014 JUDGMENT The above appeal is filed by the claimant challenging the judgment and award dated 21.08.2013 passed in MVC.No.187/2010 on the file of the Principal District Judge and MMACT, Chikmagaluru enhancement compensation.

2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

3. It is the case of the claimant that on 29.09.2009 when he was traveling in a car, a mini lorry came from the opposite direction and hit the car causing the accident in question wherein he sustained injuries. Claiming compensation for the injuries sustained in the said accident, he filed a claim petition arraying the driver, owner and insurer of Mini lorry as Respondent Nos.1, 2 and 3 and the driver, owner and insurer of the car as Respondent Nos.4 to

6. The claim proceedings was contested by the Respondents.

4. The Tribunal by its judgment and award dated

21.08.2013 awarded a total compensation of `2,09,750/- together with interest @ 6% per annum. Being aggrieved, - 4 - NC: 2024:KHC:6796 MFA No. 4158 of 2014 the claimant has filed the above appeal for enhancement of compensation.

5. The finding of the Tribunal regarding negligence and liability is not challenge. Hence, the only question that is required to be considered in the present appeal is regarding enhancement of compensation.

6. The claimant is aged 36 years as on the date of the accident. Hence, multiplier to be assessed at 16% as has been done by the Tribunal.

7. The claimant contended that he was carrying on business under the name and style M/s Kalyani Hardware and Tiles and earning more than `30,000/- per month. To prove the same, he has produced Agreement (Ex.P19) and statement of commission slip (Ex.P20). The Tribunal, while assessing the income, has recorded a finding that the claimant has not produced any income tax returns to show the actual income and the documents produced by the claimant also is not proved by examining any witness. Hence, the Tribunal has assessed the income of the climate - 5 - NC: 2024:KHC:6796 MFA No. 4158 of 2014 at `5,000/- per month by assessing the same as notional income.

8. Learned counsel for the appellant vehemently contended that and the income assessed is on the lower side. It is forthcoming from the deposition of PW.2 that he was carrying on business as a proprietor of Kalyani Hardware Tiles. However, the name of Kalyani Hardware Tiles is not forthcoming from Ex.P19. It is disclosed that the same was for a period of one year from 14.12.2002 and the claimant was carrying on business as Lakshmi Traders. The dealership commission slip (Ex.P20) is attested by one Sili Tech. There is no evidence to demonstrate who is Sili Tech who has issued Ex.P20. Hence, the finding of income recorded by the Tribunal is just and proper.

9. A perusal of the disability certificate (Ex.P15) and discharge prescription (Ex.P16) as well as the testimony of the Doctor CW.2 discloses that the claimant had sustained fracture of the posterior wall, fracture right acetabulum and fracture of greater tuberosity of left humerus and he was treated as an inpateient till 05.10.2009. The Doctor has - 6 - NC: 2024:KHC:6796 MFA No. 4158 of 2014 assessed the disability as 15%. However, the Tribunal has assed the functional disability as 5% which is just and proper.

10. Hence, the compensation is re-assessed as follows:

10.1. The Tribunal has awarded a sum of `55,000/- towards pain and suffering, `80,000/- towards medical expenses, `48,000/- towards loss of earning during laid up period and `15,000/- towards future medical expenses which is just and proper.

10.2. The Tribunal has awarded a sum of `1,750/- towards attendant charges, nutrition and the same is re- assessed as `15,000/-.

10.3. The Tribunal has awarded a sum of `10,000/- towards future discomforts and inconvenience and the same is re-assessed in a sum of `20,000/-. Hence, compensation is re-assessed as follows: - 7 - NC: 2024:KHC:6796 MFA No. 4158 of 2014 Sl.No Compensation Head Amount Awarded the Tribunal (`) Amount awarded this Court (`) 1 2 3 4 5 6 7 Pain and suffering

55000.00

55000.00 Medical expenses

80000.00

80000.00 Attendant special diet, conveyance charges,

1750.00

15000.00 Loss of earning capacity

48000.00

48000.00 Loss of earning during laid up period

15000.00

15000.00 Future medical expenses

15000.00

15000.00 Future discomforts

10000.00

20000.00 Total

224750.00

248000.00

11. Accordingly, the Claimant is entitled to enhanced compensation of `23,250/- (`2,48,000/- – `2,24,750/-) together with interest at 6% p.a.

12. In view of the aforementioned, I pass the following: ORDER i) ii) The appeal is allowed in part; The judgment and award dated 21.08.2013 passed in MVC No.187/2010 by the Principal District Judge and MMACT, Chikmagalur is hereby modified to the extent stated herein. In all other - 8 - NC: 2024:KHC:6796 MFA No. 4158 of 2014 respects, the judgment and award of the Tribunal remains unaltered; i) The appellant/claimant is entitled enhanced compensation of `23,250/- together with interest at 6% from the date of petition till its realization in addition to the compensation awarded by the Tribunal; ii) The enhanced compensation together with accrued interest is liable to be deposited by the Respondent Nos.1 and 3 jointly and severally within eight weeks from the date of receipt of a copy of this order. iii) Upon such deposit, the entire enhanced compensation together with interest accrued thereupon is to be disbursed to the claimant. iv) The Registry to draw the modified award accordingly. No costs. Sd/- JUDGE PNV,BS List No.: 1 Sl No.: 0