MR. MOHAMMED ANDAN NOORULLA v. MR. H.N. SIDDEGOWDA

(BY SRI. H.C.PRAKASHA, ADVOCATE FOR R1; V/O DT 05/01/2022, NOTICE TO R2 IS D/W; SRI. VENKATESH R BHAGAT, ADVOCATE FOR R3) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.07.2019 PASSED IN MVC NO.1106/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND AMACT- VI, SHIVAMOGGA, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the claimant being aggrieved by the judgment and award dated 26th July 2019, passed by the Principal Senior Civil Judge and A.M.A.C.T. VI, Shivamogga, (for short `Tribunal'), in MVC No.1106/2016, seeking enhancement of compensation. Though this appeal is slated for admission, with the consent of both the sides, it is taken up for final disposal.

#2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. - 3 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR

#3. The brief facts of the case are that, on 26.08.2016, while the petitioner was proceeding on his motorcycle bearing registration No.KA-04/HK-8540 on Old Airport Road, Bengaluru, he met with an accident due to rash and negligent driving of a car bearing registration No.KA-18/A-6311 (for short, 'the offending vehicle'). As a result, the claimant sustained grievous injuries. He took treatment at Sanjay Gandhi Hospital, Bengaluru, and Manipal Hospital, Bengaluru and he took further treatment at Subbaiah Hospital at Shivamogga. He had spent more than Rs.1,50,000/- towards medical expenses.

#4. It is further contention of the claimant that he was aged about 19 years at the time of accident and was a student. Due to injuries sustained in the incident, he has suffered permanent disability. With these reasons, he prayed to award compensation of Rs.12,40,000/-.

#5. Respondent No.1 was the owner, respondent No.2 was the driver and respondent No.3 was the insurer of the offending vehicle. Respondent Nos.1 and 2 filed the written statements admitting the accident. However, respondent No.2 contended that the accident did not occur due to his - 4 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR negligence. On the contrary, the accident occurred due to negligence of the claimant and further contended that the said vehicle was insured with respondent No.3 and respondent No.3 is liable to pay the compensation.

#6. Respondent No.3 in its written statement denied the averments stated in the petition and denied its liability to pay the compensation and prayed to dismiss the claim petition.

#7. From the rival contentions of the parties, the Tribunal framed necessary issues.

#8. The claimant to prove his case examined two witnesses as PW-1 and PW-2 and marked 66 documents, as per Exs.P-1 to P-66. The documents produced from the hospital were marked as Exs.C-1 and C-2. Though respondents have not led any oral evidence, copy of the insurance policy was marked as Ex.D-1.

#9. The Tribunal after hearing both the parties and appreciating the materials available on record, held that the claimant sustained injuries in a vehicle accident due to rash and negligent driving of the offending vehicle by its driver. The - 5 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR Tribunal considering the materials on record, awarded the following amount of compensation: Particulars Amount in Rs. Hospital and medical expenses 1,00,000/- Food, attendant and expenses Pain and suffering conveyance 20,000/- 25,000/- 25,000/- Future medical expenses and loss of amenities of life Total 1,70,000/-

#10. I have heard the arguments of learned counsel for both sides.

#11. Learned counsel for the appellant contends that the claimant sustained fractures of right tibia and fibula and right metatarsal bone. He had suffered permanent disability to an extent of 25% to the right lower limb. He has spent substantial amount towards medical expenses. All the medical records were placed on record. Though there was no dispute by the respondents, the Tribunal doubted the fracture of right metatarsal bone. The Tribunal has not awarded any amount of - 6 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR compensation towards loss of future earning capacity due to permanent disability and loss of income during laid-up period. Therefore, the amount of compensation awarded by the Tribunal is inadequate. Hence, he prayed to enhance the compensation.

#12. Learned counsel appearing respondents supported the impugned judgment and award and prayed to dismiss the appeal.

#13. The fact of the accident and fracture to right tibia and fibula are not in dispute. The Tribunal has answered issue No.1 in the affirmative. Therefore, there is no need to reconsider the same.

#14. There is a serious dispute regarding the fracture of right metacarpal bone. PW.2 in his cross-examination has stated that when the claimant came for treatment in Subbaiah Hospital, initially he had not noticed the fracture or dislocation of metatarsal bone of the right foot. It is pertinent to note that according to contention of the claimant, he took initial treatment at Manipal Hospital, Bengaluru and Sanjay Gandhi Hospital, Bengaluru, wherein he was admitted as an inpatient - 7 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR for more than a week. But from both these hospitals, he has not produced any documents except the receipts to prove the said injuries. Ex.P.5-wound certificate given by Subbaiah Hospital, which was produced along with the charge sheet. The said document also does not disclose the fracture or dislocation of metatarsal bone of the right foot. In view of the said reasons, the Tribunal doubted the said injury occurred in the accident. The said reasons are well founded and does not call for any interference.

#15. According to the learned counsel for the appellant, the claimant was about 19 years old and was a student at the time of the accident. The learned counsel for the appellant contends that after completing his education, the claimant would have taken up some employment or occupation and at that stage, the said fractures and disability would seriously affect his earning capacity. It is argued that the Tribunal ought to have awarded compensation under the head 'loss of future earning capacity due to permanent disability.' The Tribunal erred in not awarding the same. This contention is not sustainable. Compensation under the head loss of future - 8 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR earning capacity due to permanent disability will be assessed based on the extent to which the disability affects the earning capacity of the claimant. Since the claimant was a student at the time of the accident, it is not possible for the Tribunal to assess how the disability would affect his earning capacity in future. At the most, the Tribunal ought to have awarded an appropriate amount of compensation under the head loss of amenities. Even if it is considered that the claimant was a student, the said fracture and disability would prevent him from participating in sports and other day-to-day activities that fact was not considered by the Tribunal. Since no compensation was awarded towards loss of income due to permanent disability, a higher amount ought to have been granted under the head loss of amenities.

#16. The claimant has to undergo another surgery for removal of the implants. As per evidence of PW.2, the Tribunal awarded an amount of Rs.25,000/- towards loss of amenities as well as future medical expenses, which is on the lower side. On re-appreciation of the materials on record, the amount of - 9 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR compensation awarded under all the heads are on the lower side.

#17. Learned counsel for the appellant calculated the total amount of medical bills; according to him, it is Rs.1,25,996/-. The Tribunal disallowed two medical bills for Rs.4,200/- and Rs.10,000/-. It appears, for the remaining receipts, there was no dispute. Hence, the Tribunal ought to have awarded entire amount of the said medical bills, excluding the Exs.P.14 and P.15. For the aforesaid discussions, the claimant is entitled to following amount of compensation: Particulars Amount in Rs. Pain and sufferings Medical expenses Special attendant charges diet, 50,000/- 1,15,000/- conveyance 30,000/- Loss unhappiness amenities future 1,00,000/- Future medical expenses Total 25,000/- 3,20,000/- Amount awarded by the Tribunal 1,70,000/- Enhancement- 1,50,000/- - 10 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR

#18. The claimant is entitled to interest on the enhanced amount at the rate of 6% per annum from the date of petition till its realization. Undisputedly, respondent Nos.1 and 3 are jointly and severally liable to pay the said amount.

#19. In the result, I proceed to pass the following: ORDER i) The Appeal is allowed in part. ii) The judgment award dated 26th July 2019, passed in MVC.No.1106/2016, by the Principal Senior Civil Judge and A.M.A.C.T. VI, Shivamogga, stands modified; iii) The claimant is entitled to enhanced compensation of Rs.1,50,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization. iv) The respondent No.3 - Insurance Company shall deposit the amount within a period of six weeks from the date of award. v) The remaining portion of the award regarding apportionment, release and deposit are not disturbed. - 11 - NC: 2025:KHC:45165 MFA No. 276 of 2020 HC-KAR vi) Draw award accordingly. Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal. Sd/- (UMESH M ADIGA) JUDGE AMA List No.: 1 Sl No.: 8