NAGARAJ S.P. v. PRANESH V. MANAGOOLI

(BY SRI. S.V. HEGDE MULKHAND, ADV., FOR R2 NOTICE TO R1 D/W V/O/DTD:25.07.2023) …RESPONDENTS - 2 - NC: 2026:KHC:13745 M.F.A. No.1588/2020 HC-KAR THIS M.F.A. IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 05.12.2018, PASSED IN MVC NO.872/2017, ON THE FILE OF THE II-ADDITIONAL JMFC., AND VI-MACT, SENIOR CIVIL DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION OF COMPENSATION. ENHANCEMENT JUDGE AND SEEKING AND THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT This appeal is filed by the injured/claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 05.12.2018 passed in MVC No.872/2017 by the II Additional Senior Civil Judge & JMFC, Davanagere, (for short, ‘Tribunal’).

Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.

Sri. Rajashekhar K., learned counsel for the appellant submits that the Tribunal has committed a grave error in not awarding any compensation under the head of - 3 - NC: 2026:KHC:13745 M.F.A. No.1588/2020 HC-KAR loss of income due to disability by ignoring the oral evidence of PW2 and the wound certificate as at Ex.P4. It is submitted that the Tribunal has awarded meager compensation under the heads of pain and suffering, loss of amenities and all other heads by ignoring the fact that the appellant was in-patient for a period of more than 10 days, suffered two fractures and underwent surgery requiring the insertion of implants. Hence, he seeks to re- assess the same by allowing the appeal.

Per contra, Sri.S.V.Hegde Mulkhand, learned counsel appearing for the respondent No.2 - insurance company vehemently oppose the appeal and seeks to sustain the impugned judgment and award of the Tribunal. He submits that the Tribunal has recorded a clear finding at para No.10 with regard to the rejection of the claim for compensation under the head of loss of income due to physical disability as PW2 has not assessed any disability. It is submitted that the award of compensation on all other - 4 - NC: 2026:KHC:13745 M.F.A. No.1588/2020 HC-KAR heads is also just and fair and does not call for any enhancement. Hence, he seeks to dismiss the appeal.

I have heard the arguments of the learned counsel appearing on both sides and meticulously perused the material available on record.

It is not in dispute that in a road accident dated

06.09.2017 the appellant-claimant sustained grievous injuries as well as fracture of right fibula, tibia and 5th metatarsal of bone. It is also not in dispute that the appellant was provided treatment at Navodaya Hospital, Davanagere and was in-patient for a period of 10 days and after surgery, implants were inserted. The perusal of the evidence of Doctor - PW2 indicates that he has not assessed any disability of the appellant-injured nor issued the disability certificate. In the absence of said evidence, it would be difficult this Court to assess compensation under the head of loss of income due to physical disablement. However, in my considered view, - 5 - NC: 2026:KHC:13745 M.F.A. No.1588/2020 HC-KAR the Tribunal has erred in awarding meager compensation on other heads.

Having said supra and that the appellant has failed to produce any legally acceptable evidence with regard to the award of compensation under the head of loss of income due to physical disability, this Court also cannot ignore the fact that the appellant has sustained three fractures, undergone surgery, and he was inpatient for a period of 10 days in the hospital, considering the said aspect and on appreciating oral testimony of PW2 and other medical records, I am of the view that the compensation awarded by the Tribunal is required to be re-assessed. Hence, the appellant would be entitled to compensation of Rs.60,000/- towards pain & suffering; Rs.50,000/- towards loss of amenities; Rs.25,000/- towards food, nourishment and conveyance charges. The appellant would be entitled to Rs.33,000/- (Rs.11,000 X 3) towards the loss of income during laid-up period. The compensation awarded by the Tribunal towards medical - 6 - NC: 2026:KHC:13745 M.F.A. No.1588/2020 HC-KAR expenses is unaltered. Thus, the appellant would be entitled to the modified compensation as under: HEADS Pain & suffering Loss of amenities Food, nourishment charges Loss of income during laid up period conveyance Medical bills Total Rounded off to AMOUNT (in Rs.) 60,000 50,000 25,000 33,000 96,283 2,64,283 2,64,290 Thus, the appellant-claimant shall be entitled to a compensation of Rs.2,64,290/- as against Rs.1,64,290/- awarded by the Tribunal.