SRI. SHIVAKUMAR v. M/S. ICICI LOMBARD GENERAL INSURANCE CO. LTD.

(BY SRI. H.B. SOMAPUR, ADVOCATE - ABSENT) AND:

1. M/S. ICICI LOMBARD GENERAL INSURANCE CO. LTD., BY ITS MANAGER SHARADAVANI B Location: HIGH COURT OF KARNATAKA - 2 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR NO.121, THE ESTATE BUILDING, 9TH FLOOR, DICKENSON ROAD, BENGALORE-01

2. SRI. PRITHVIN S SOMAYAJI S/O SACHIDANANDA J NO.152/5-13, USHANANDA, MANGANAHALLI ROAD, ULLALA, BANGALORE-56 …RESPONDENTS (BY SRI. B. PRADEEP, ADVOCATE FOR R1 NOTICE TO R2 IS D/W VIDE ORDER DATED 14.10.2012) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.11.2017 PASSED IN MVC NO.7757/2016 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 3 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR ORAL JUDGMENT This appeal is filed by the claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 22.11.2017 passed in MVC No.7757/2016 by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (for short, 'Tribunal').

2. Sri.H.B.Somapur, learned counsel appearing for the appellant submits that the Tribunal has erred in assessing the income of the injured as well as the disability. It is submitted that the award of compensation on all other heads is also contrary to the evidence on record. Hence, he seeks to reassess the same by considering the oral and documentary evidence on record. Hence, he seeks to allow the appeal.

3. Per contra, Sri.B.Pradeep learned counsel appearing for the respondent No.1 supports the impugned judgment and award of the Tribunal and submits that the Tribunal has erred in awarding compensation under the head of loss of marriage prospects as the case on hand is pertaining to two fractures. It is submitted that the Tribunal considering the evidence has - 4 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR rightly awarded the compensation, which does not call for any interference. Hence, he seeks to dismiss the appeal.

4. I have heard the arguments of the learned counsel appearing for the appellant, learned counsel appearing for the respondent No.1 and meticulously perused the material available on record. I have given my anxious considerations to the submissions advance.

5. The only point that would arise for consideration in this appeal is: "Whether the impugned judgment and award passed by the Tribunal calls for any interference?".

6. The aforementioned point is answered in the affirmative for the following reasons.

7. The parties to the proceedings do not dispute that the appellant met with a road accident on 26.11.2016 and sustained fracture of both bones of right leg. The pleading and evidence on record indicates that the appellant was working as a mason by profession and was earning Rs.800/- per day. The - 5 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR Tribunal considering the evidence assessed the income of the injured at Rs.8,500/- and assess the disability at 9%. It is to be noticed that the appellant failed to produce any evidence with regard to the income. In the absence of proof of income, his income is reassessed notionally at Rs.9,500/- placing reliance on the Notional income chart prepared by Karnataka State Legal Services Authority.

8. Insofar as disability is concerned, PW-3 has deposed before the Tribunal that the appellant sustained two fractures and he has assessed whole body disability at 13% and 26% to the right lower limb.

9. I am of the considered view that the assessment of the disability by PW-3 cannot be accepted. By considering the oral testimony of PW-3, disability wound certificate at Ex.P5, discharge summary at Ex.P7, I am of the view that the interest of justice would be met, if the disability is assessed at 12% for the purpose of determination of compensation. The claimant was aged about 20 years. Hence, the appropriate multiplier would be '18'. Hence, the appellant is entitled to compensation - 6 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR under the head of 'loss of future income due to disability' as under: Rs.9,500 X 12 X12 X 18% = Rs.2,46,240/-.

10. Having reassessed the income and disability, the appellant would be entitled to the following compensation. HEADS Loss of future earning due to disability Towards pain and suffering Loss of amenities Towards attendant, nourishment and conveyance charges Towards medical expenses Towards the loss of income during the laid up period Towards future medical expenses Towards the loss of marriage prospects AMOUNT (in Rs.) 2,46,240.00 50,000.00 25,000.00 15,000.00 31,000.00 30,000.00 15,000.00 20,000.00 Total 4,32,240.00

11. Thus, the appellant-claimant shall be entitled to total compensation of Rs.4,32,240/- as against Rs.3,46,000/- awarded by the Tribunal. - 7 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR

12. In the result, this Court proceeds to pass the following: ORDER i) Appeal is allowed in part. ii) The impugned judgment and award of the Tribunal is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs.4,32,240/- as against Rs.3,46,000/- awarded by the Tribunal. iii) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. iv) The Insurance Company shall deposit enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. v) The entire compensation amount shall be released in favour of the appellant-claimant. vi) The Registry shall transfer the records to the Tribunal forthwith. - 8 - NC: 2026:KHC:13463 MFA No. 898 of 2018 HC-KAR vii) Draw modified award accordingly. Sd/- (VIJAYKUMAR A. PATIL) JUDGE VS List No.: 1 Sl No.: 1