SMT. NAGARATHNA POOJARY v. SRI. B. A. MOHAMMED

CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the claimant challenging the judgment and award dated 2nd January 2017, passed by the learned Senior Civil Judge and Member, Addl.M.A.C.T., Kundapura, (for short `Tribunal'), in MVC No.945/2014, seeking enhancement of compensation.

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 19.11.2014, at about 5.30 p.m., the claimant was going on motorcycle bearing registration No.KA-20-L-6489 as a pillion rider from Hale-Alive side towards Koteshwara and one Suresh Poojary, (who was the claimant in the connected MVC.No.943/2014) was riding the said motorcycle. When they reached near Old - 3 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR Ice-plant, Koteshwara village, Kundapura Taluk, a Tata Ace bearing registration No.KA-20-B-8385 (offending vehicle), driven by its driver in a rash and negligent manner, hit the motorcycle of the claimant. As a result, claimant fell down and sustained fracture of left patella. She took treatment as an inpatient in Chinmayi Hospital. She has spent substantial amount towards medical expenses. She has also contended that she was a coolie and earning Rs.12,000/- per month. Due to the injuries sustained in the accident, she has suffered permanent disability. With these reasons, the claimant has prayed for awarding compensation of Rs.17,15,000/-.

4. The respondent No.1 is the owner and respondent No.2 is the insurer of the offending vehicle. Both the respondents have filed their respective written statements denying the contentions of the claim petitioner and respondent No.2- insurance company denied its liability to pay the compensation. With these reasons, it prayed to dismiss the claim petition.

5. From the rival contentions of the parties, the Tribunal framed necessary issues. - 4 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR

6. The claimant to prove her case, examined three witnesses as PW-1 to PW-3 and marked 10 documents, as per Exs.P-1 to P-22 (out of the, Exs.P-16 to P-22 are pertaining to this case). Respondent No.2 examined two witnesses as RW-1 and RW-2 and marked Exs.R-1 and R-2.

7. The Tribunal after hearing both parties and appreciating the evidence on record, by the impugned judgment, awarded the following amount of compensation: Particulars Amount in Rs. Pain and suffering Medical expenses, food and nourishment, attendant and conveyance charges 40,000/- 54,450/- Loss of eaning during the laid up period 32,500/- Loss of future earning capacity 1,17,000/- Loss of amenities Total 20,000/- 2,63,950/- Being aggrieved by the said award passed by the Tribunal, the claimant has filed the present appeal seeking enhancement of compensation. - 5 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR

8. Heard the arguments of the learned counsel appearing for the claimant as well as the insurer.

9. Learned counsel for the appellant/claimant submitted insurance company appeal MFA.No.2874/2017 before this Court challenging its liability to pay the compensation. The said matter was heard by a Co- ordinate Bench of this Court and vide judgment dated 24th January 2020, this Court dismissed the said appeal. The copy of the said judgment is placed on record by the learned counsel for the appellant for reference. This fact is not disputed by the respondent No.2-insurance company.

10. The main contention of learned counsel for the appellant/claimant is that the amount of compensation awarded under the heads, pain and suffering, loss of income during laid up period, loss of future earning capacity due to permanent disability and loss of amenities, are on the lower side. The Tribunal ought to have considered the income of the claimant as Rs.12,000/- per month, which was not disputed by the respondents and hence, prayed to enhance the compensation. - 6 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR

11. Learned counsel respondent No.2-insurer submitted that the Tribunal has properly considered the case of the claimant and has awarded a just and reasonable compensation, which does not call for any interference by this Court and prayed for dismissal of the appeal.

12. Following points arise for my determination: (ii) Whether claimant is entitled enhancement of compensation? (ii) What order? Point No.1 :

13. Fact of the accident is not in dispute. The Tribunal has considered the income of the claimant as Rs.6,500/- per month. It is true that the claimant was not able to prove her income before the Tribunal. Thus, the Tribunal has assessed the notional income of the claimant. Following the chart prepared by the Karnataka State Legal Services Authority, the income of the claimant is taken as Rs.8,500/- per month. Further, it is also not in dispute that the claimant was aged about 40 years at the time of the accident, therefore, the multiplier applicable is `15'. - 7 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR

14. As per Ex.P-4 - wound certificate, the claimant had sustained swelling and tenderness of left knee and fracture of left patella. The Tribunal has assessed the disability suffered by the claimant as 10%, though the doctor has stated that the claimant has been suffering from permanent disability to an extent of 14% to the left lower limb. The said finding of the Tribunal is justifiable from the facts and circumstances of the case.

15. It is true that the amount of compensation could be enhanced on the basis of income of the claimant from Rs.6,500/- to Rs.8,500/- per month. Accordingly, the compensation awarded under the heads, `loss of income during laid up period', `loss of future earning capacity due to permanent disability' are to be recalculated. The amount of compensation awarded under the head `loss of amenities' is also on the lower side, it needs enhancement.

16. For the aforesaid discussions, the claimant is entitled to following amount of compensation : - 8 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR Particulars Amount in Rs. Pain and suffering Medical expenses Attendant expenses, special diet and conveyance charges 40,000/- 44,446/- 25,000/- Loss of income during laid up period 42,500/- (Rs.8,500/- x 5) Loss of future earning capacity due to permanent disability 1,53,000/- (Rs.8,500/- x 12 x 15 x 10%) Loss of amenities Total 40,000/- 3,44,946/- Amount awarded by the Tribunal 2,63,950/- Enhancement- 80,996/- Rounded off - 81,000/- The claimant is also entitled to interest at the rate of 6% p.a. from the date of petition till the date of realisation, on the enhanced compensation.

17. Undisputedly, respondents are liable to pay the said amount of compensation. Though the respondent-insurer tried to absolve its liability, it was unsuccessful in the appeal filed by i.e., MFA.No.2874/2017 as stated above. Hence, - 9 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR respondents are jointly and severally liable to pay the amount of compensation along with interest.

18. This appeal is filed after delay of 426 days. While condoning the delay in filing the appeal, it was ordered that, in the event of appeal being allowed, the claimant is not entitled to interest for the delayed period of 426 days in filing the appeal. Accordingly, the claimant is not entitled to interest for the delayed period.

19. For the aforesaid discussion, point No.1 is answered partly in favor of appellant and this Court proceeds to pass the following: ORDER i) The Appeal is allowed in part. ii) The judgment award dated 2nd January 2017, passed by the Senior Civil Judge and Member, Addl.MACT, Kundapura, in MVC No.945/2014, stands modified. iii) The claimant is entitled to enhanced compensation of Rs.81,000/-, with interest at the rate of 6% p.a., on the said amount from the date of petition till its realization, excluding the interest - 10 - NC: 2025:KHC:38439 MFA No. 4870 of 2018 HC-KAR for the delayed period of 426 days in filing the appeal. 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 meager, therefore, entire amount is ordered to be released in favour of the claimant on proper identification. 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 bk/ List No.: 1 Sl No.: 62