SRI. KEERTHI KUMAR C. v. SRI HEMARAJU P. K.

(BY SMT. GEETHA RAJ., ADV FOR R2; V/O DATED 21.07.2022 NOTICE TO R1 IS DISPENSED) …RESPONDENTS - 2 - NC: 2025:KHC:44869 MFA No. 352 of 2020 HC-KAR THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DT.13.09.2019 PASSED IN MVC NO.4441/2018 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU (SCCH-4), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION OF COMPENSATION. ENHANCEMENT SEEKING AND 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 13th September 2019, passed by the XVIII Additional Judge, Court of Small Causes, Member, MACT, Bengaluru (SCCH-4), (for short `Tribunal'), in MVC No.4441/2018, 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. The brief facts of the case are that, on 27.05.2018 at about 7.45 a.m., the claimant met with accident near Nanjarayapattana, Kushalnagara, Kodagu District, due to rash - 3 - NC: 2025:KHC:44869 MFA No. 352 of 2020 HC-KAR and negligent driving of a jeep bearing registration No.KA-04- MK-9339. As a result, he sustained fracture of right tibia and other two injuries to the head and face. With these reasons, he prayed to award compensation of Rs.25,00,000/-.

#4. Respondent No.1 was the owner and respondent No.2 was the insurer of the offending Bolero Jeep. Respondent No.1 remained ex parte before the Tribunal. Respondent No.2 filed the written statement denying the averments in the claim petition and denied its liability to pay the compensation and prayed to dismiss the claim petition.

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

#6. The claimant to prove his case examined three witnesses as PW-1 to PW-3 and marked 16 documents, as per Exs.P-1 to P-16. Respondents have not led any oral and documentary evidence.

#7. The Tribunal after hearing both the parties and appreciating the materials available on record, held that the accident occurred due to rash and negligent driving of the jeep by its driver. The Tribunal has assessed income of the claimant - 4 - NC: 2025:KHC:44869 MFA No. 352 of 2020 HC-KAR as Rs.10,000/- per month, his disability at 12% to the whole body, assessed his age as 26 years, applied the multiplier as '17' and awarded the following amount of compensation: Particulars Amount in Rs. Pain and suffering Medical expenses 40,000/- 2,04,000/- Loss of income during laid up period 40,000/- Disability Food, nourishment and attendant charges 2,45,000/- 5,000/- Loss of amenities and unhappiness 30,000/- Future medical expenses Total 15,000/- 5,79,000/-

#9. I have heard the arguments of both sides. The main grievance of learned counsel for the appellant is that the Tribunal has not assessed the income of the claimant properly. It is contended that the disability assessed by the Tribunal and the amount of compensation awarded under the other heads mentioned in the judgment are on the lower side. No amount of compensation was awarded - 5 - NC: 2025:KHC:44869 MFA No. 352 of 2020 HC-KAR towards marriage prospects and prayed to enhance the compensation under the said heads.

#10. Learned counsel for respondent No.2 supported the impugned judgment and submitted that there is no need to interfere in the said finding and the Tribunal has awarded just and fair amount of compensation.

#11. The fact of the accident, injury sustained by the claimant, his age, occupation and applicable multiplier are not in serious dispute. The claimant sustained fracture of right tibia. He took treatment as an inpatient for about five days and he underwent surgery. As per evidence PW.2, the claimant has suffered permanent disability to the whole body to an extent of 17% and to the right lower limb as 34%.

#12. The income taken by the Tribunal is on the lower side. Following the notional income chart prepared by the Karnataka State Legal Services Authority, the income of the claimant is taken as Rs.12,500/- per month. On re-appreciating the evidence of PW.2 and the difficulty stated by PW.1, the disability taken by the Tribunal is proper. However, the Tribunal has not awarded compensation towards loss of marriage - 6 - NC: 2025:KHC:44869 MFA No. 352 of 2020 HC-KAR prospects. It is pertinent to note that there is no evidence on record in this regard. Therefore, the Tribunal did not consider the same, which now requires consideration. The claimant had also sustained two additional injuries, one to the left parietal region and another to the right orbit, which were not taken into account by the Tribunal. On re-appreciation of the evidence, the claimant is entitled following amount of compensation: Particulars Amount in Rs. Pain and suffering Medical expenses Loss of income during laid up period (12,500 x 4) Loss of future earning capacity due to disability permanent (12,500x12x17x12%) 50,000/- 2,04,000/- 50,000/- 3,06,000/- Food, nourishment and attendant charges 25,000/- Loss of amenities Future medical expenses Marriage prospectus Total Amount awarded by the Tribunal 30,000/- 25,000/- 25,000/- 7,15,000/- 5,79,000/- Enhancement- 1,36,000/- - 7 - NC: 2025:KHC:44869 MFA No. 352 of 2020 HC-KAR

#13. 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, owner and insurer of the offending vehicle are liable to pay the said amount.

#14. In the result, I proceed to pass the following: ORDER i) The Appeal is allowed in part. ii) The judgment award dated 13th September 2019, passed MVC.No.4441/2018, by the XVIII Additional Judge, Court of Small Causes, Member, MACT, Bengaluru (SCCH-4), stands modified; iii) The claimant is entitled to enhanced compensation of Rs.1,36,000/-, with interest at the rate of 6% p.a., from the date of petition till its realization. iv) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award. v) The enhanced amount of compensation is marginal. Therefore, entire enhanced amount shall be released in favour of claimant on due identification. - 8 - NC: 2025:KHC:44869 MFA No. 352 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.: 17