SOMALING MADU @ MADAPPA NIRAVANI @ NIRANI v. TENIHALLI

CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) This appeal is filed by the appellant/claimant under Section 173(1) of the Motor Vehicles Act, 1988 (for short, hereinafter referred to as 'the M.V.Act’) for enhancement of compensation awarded by the II-Addl. Senior Civil Judge & Member, MACT-VII, Vijayapura (for short, hereinafter referred to as 'the Tribunal’) in MVC No.478/2017 dated 11.07.2023.

Though this appeal is listed for admission, with the consent of both the learned counsels, it is taken up for final disposal. - 3 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024

The parties will be referred as per their ranks before the Tribunal for sake of convenience.

The case of the claimant is that on 29.01.2017 at about 7:30 p.m. on Almatti-Muddebihal road, near Hullur village, when the claimant along with another person were traveling in a motorcycle bearing Reg. No.KA- 38/J-9320, at that time, a tractor bearing Reg. No.KA- 28/TC-5707 came there in a rash and negligent manner by wrong side and dashed to the motorcycle. Due to which, both rider and pillion rider were fell down and sustained grievous injuries. They were taken to the hospital and treated as inpatients. The police have registered the FIR and filed charge-sheet against the driver of the tractor. Hence, the claimant filed petition under Section 166 of the M.V.Act for claiming compensation of Rs.28,25,000/-.

In pursuance of the notice, respondents appeared through their learned counsel and filed the written statement by denying the rash and negligent driving, age, occupation, injury, disability and also taken - 4 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024 contention that the driver of the tractor do not hold any effective driving licence and rider of the motorcycle also not having driving licence and there is contributory negligence etc. Hence, prayed for dismissing the petition.

Based upon the pleadings, the Tribunal had framed the following issues for determination. ISSUES

Whether petitioner proves that accident dated

29.01.2017 was due to rash and negligent driving of the tractor No.KA-28/TC-5707 by its driver, causing injuries to the petitioner?

2. Whether petitioner is entitled for compensation? If so, what is the quantum and from whom?

3. What order or award?

In order to prove the case, the claimant in MVC No.478/2017 examined himself as PW.1 along with another claimant PW.2 two more witnesses/Doctorsas PW.3 and 4 and got marked 25 documents as Exs.P1 to P25. On behalf of respondent No.2/Insurance Company its Assistant Manager examined - 5 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024 as RW.1 and got marked documents as Exs.R1 and R2 and they admitted issuance of insurance policy.

The Tribunal after hearing both the parties and appreciating the evidence available on record, answered issue No.1 in the Affirmative; issue No.2 partly in the Affirmative; and had awarded the following amount of compensation along with interest at the rate of 6% per annum, which is under challenge: Sl.No 1. 2. 3. 4. 5.

7. Heads Pain and suffering Food, nourishment, special diet Medical bills Loss of future earning capacity Attendant and conveyance charges Loss of income during the laid up period Loss of amenities of life Amount Rs.10,000/- Rs.5,000/- Rs.2,50,000/- Rs.1,10,592/- Rs.15,000/- Rs.10,250/- Rs.10,000/- Total Rs.4,10,842/-

Being aggrieved quantum compensation, the claimant is before this Court for enhancement of compensation. - 6 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024

The learned counsel for the claimant has seriously contended that the Tribunal has committed error in awarding meager compensation towards pain and suffering as Rs.10,000/-, even though the claimant was admitted in the hospital for 45 days as inpatient, he has suffered grievous injuries; towards food, nourishment, special diet also the Tribunal awarded very meager amount. The loss of future earning capacity the doctors opined the disability was 30% to 32%, but the Tribunal has considered only 5%, which is very meager. The Tribunal has considered laid up period only one month which is not correct. The claimant has admitted in the hospital for more than 45 days as inpatient, thereafter he has taken treatment as outpatient, therefore, at least three months income have to be calculated towards loss of income during laid up period. Loss of amenities also considered as very meager. The age of claimant considered as 25 years. Therefore, he has to suffer throughout his life towards amenities. Hence, prayed for enhancement of compensation. - 7 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024

Per contra, learned counsel for the Insurance Company has supported the judgment and award passed by the Tribunal and has contended that the Tribunal by considering the facts and circumstances of the case and based upon the evidence has rightly passed the award. The doctor who was examined as PW.3 was not a treated doctor. Therefore, disability of 5% considered by the Tribunal is correct. Hence, there is no reason for interference by this Court. Hence, prayed for dismissal of appeal.

We have heard the arguments of both the learned counsel and on perusal of the records, the points arise for our consideration is: 1) Whether the appellant/claimant is entitled for enhancement of compensation, if so, to what extent?

We have perused the entire records and documents produced by the learned counsel for the appellant. Admittedly, in respect of liability there is no - 8 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024 appeal filed by the insurance company. The charge-sheet was filed against the driver of the tractor and the liability also fixed by the Tribunal against the insurance company, which is attained finality as there is no appeal. And this Court required to consider only regarding quantum of compensation awarded by the Tribunal is sufficient or not.

In regard on perusal of wound certificate/Ex.P13, which reveals that there were 7 injuries sustained by the claimant and most of the injuries are grievous in nature. As per Ex.P12 the claimant was admitted in hospital for almost 1½ month i.e. from

30.01.2017 to 16.03.2027. Such being the case, the Tribunal awarded compensation only Rs.10,000/- towards pain and suffering, which is on the lower side, when the claimant suffered grievous injury that too fracture injuries at least the Tribunal could have consider properly. Therefore, we proposed to award Rs.50,000/- towards pain and suffering instead of Rs.10,000/- awarded by the Tribunal. - 9 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024

As regards to the medical expenses, which is based upon the document, Rs.2,50,000/- awarded by the Tribunal, which is affirmed by this Court.

As regards to the food, nourishment, special diet, the Tribunal has awarded only Rs.5,000/- whereas the claimant admitted in the hospital for almost 45 days. Therefore, we proposed to award another Rs.20,000/- i.e. Rs.25,000 is awarded towards food, nourishment, special diet.

As regards to the attendant charges, the Tribunal has awarded Rs.15,000/-, the same is affirmed.

As regards to the loss of income during laid up period, the Tribunal has awarded only Rs.10,250/- by taking into consideration one month salary as notional income. As regards to the taking salary of Rs.10,250/- per month, normally the Courts consider the salary fixed by the Legal Services Authority for the accident occurred for the year 2017 as Rs.10,250/- as monthly income. When - 10 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024 the claimant himself admitted in the hospital as inpatient for more than 45 days, would have taken rest and follow- up treatment. Therefore, we proposed to consider at least three months shall be awarded for the loss of laid up period. If Rs.10,250/- x 3 = Rs.30,750/- for the laid up period.

As regards to the loss of future earning capacity as per the evidence of the Doctor and Ex.P20/disability certificate the doctor has considered all the injuries and opined that as per the x-ray the right tibia was healed fracture of tibia with screws in situ and it is permanent partial impairment in relation to right lower limb to an extent of 30% to 32%, whereas the Tribunal has considered only 5% and there is no proper reason assigned by the Tribunal. Normally the Court has to consider 1/3rd of the disability given by the doctor as disability towards whole body. Therefore, we proposed to consider 10% of disability towards whole body for loss of future income instead of 5% considered by the Tribunal. - 11 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024 Thus, loss of future income due to permanent disability would be calculated as under: Rs.10,250/- x 12 x 18 x 10% = Rs.2,21,400/-.

As regards loss of amenities as per the doctor evidence he has suffered 30% towards limb and 1/3rd has to be considered as towards whole body. He has suffered lot of pain and agony and admitted in hospital more than 45 days and he is age of 25 years and suffered fracture injuries and impairment. He has to suffer throughout his life. Therefore, we proposed to award Rs.25,000/- towards the loss of future amenities instead of Rs.10,000/- as awarded by the Tribunal.

Though it is not claimed by the claimant regarding future medical expenses, on perusal of the certificate issued by the Doctor the healed fracture of tibia with screws in situ means the metal instrument used for fixing or healing the fracture bones i.e. still in situ the implants has to be removed in future. Therefore, we - 12 - NC: 2024:KHC-K:7180-DB MFA No. 200966 of 2024 proposed to award Rs.10,000/- towards future medical expenses, if any, for the purpose of removing implants.

Thus, the claimant is entitled for following amount of compensation: Sl. No Heads

1. Pain and agony 2. Medical expenses Amount awarded by this Court Rs.50,000/- Rs.2,50,000/-

3. Food, nourishment, spl. Diet 4. Attendant charges 5. Loss of income during laid up period 6. Loss of amenities 7. Future medical expenses 8. Loss of future income Rs.25,000/- Rs.15,000/- Rs.30,750/- Rs.25,000/- Rs.10,000/- Rs.2,21,400/- Rs.6,27,150/- Rs.6,27,000/- Amount awarded by the Tribunal Rs.4,10,842/- Rs.2,16,158/- Rs.2,16,000/- Enhancement (rounded off to) Total Rounded off to

Thus, the claimant is entitled to enhancement of compensation of Rs.2,16,000/- along with interest at the rate of 6% per annum.