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2017 DIGILAW 1539 (KAR)

Agasara Venkatesh S/O Nagappa v. Shivakumar S/O Honnurappa

2017-11-17

H.B.PRABHAKARA SASTRY, S.SUJATHA

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JUDGMENT : H.B. Prabhakara Sastry, J. The appellant herein was the claimant before the III Motor Accident Claims Tribunal, Ballari (henceforth referred to as the ‘Tribunal’ for brevity) in MVC No.549/2011, whose claim petition under Section 166 of the Motor Vehicles Act, 1988 was allowed in part by the impugned judgment and award dated 18.12.2012. Seeking enhancement of the compensation awarded by the Tribunal, the appellant has preferred this appeal. 2. In his memorandum of appeal, the appellant has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal. 3. Heard the arguments from both sides and perused the materials placed before this Court. 4. Learned counsel for the appellant in his argument reiterated the contention taken up by the appellant in his memorandum of appeal. 5. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondents to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the reasonableness of the quantum of compensation awarded by the Tribunal. 6. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them: Pain and suffering Rs.25,000/- Medical expenditure as per Ex.P6 Rs.2,65,916/- Loss of income during laid period Rs.4,000/- Nourishment, attendant, conveyance charges Rs.3,000/- Loss of happiness, frustration Rs.5,000/- Loss of income on the ground of disability Rs.91,800/- Total Rs.3,94,716/- 7. The certified copy of the wound certificate at Ex.P5 shows that, in the Road Traffic accident the claimant has sustained blunt injury on his chest and his abdomen. The certified copy of the wound certificate at Ex.P5 shows that, in the Road Traffic accident the claimant has sustained blunt injury on his chest and his abdomen. However, the evidence of P.Ws.1 and 2 and a reading of discharge summary at Ex.P7 go to show that the blunt injury to the abdomen had resulted in rupture of spleen with mesenteric contusion with left sided haemothrax and was operated for the same at Bengaluru. Considering the same, the Tribunal has awarded a sum of Rs.25,000/- towards ‘pain and suffering’, which amount, we do not find as below reasonable. As such, we do not want to modify the same. Since the compensation of a sum of Rs.2,65,916/- awarded towards ‘medical expenditure’ is as per Ex.P6 and on actual, it does not warrant any modification by us. 8. Observing that the claimant though claimed to be a JCB operator prior to the accident and earning a sum of Rs.15,000/- p.m. has failed to prove his income with cogent evidence, the Tribunal has taken a notional income at Rs.150/- per day amounting to Rs.54,000/- p.a. However, as Coordinate Benches of this Court are taking the notional income of a person, who could not able to establish his income, for the relevant period which is the year 2010 at Rs.5,500/p.m., the same amount is required to be taken in the case on hand also. Since the Tribunal has taken a notional income lesser than the said amount, the quantum of compensation awarded towards ‘loss of income during laid up period’ also gets enhanced. The Tribunal has awarded a sum of Rs.4,000/-, which is equivalent to less than a month’s income, even according to its own calculation. However, considering the nature of injuries suffered by the claimant and the discharge summary at Ex.P7 and also the evidence of P.W.1, we are of the view that the claimant must have laid down at least for a period of three months. As such, at the rate of Rs.5,500/- p.m., he is entitled for a differential amount of Rs.12,500/- in that regard. 9. A sum of Rs.3,000/- awarded by the Tribunal towards ‘nourishment, attendant and conveyance charges’ andasum of Rs.5,000/- awarded by it towards ‘loss of happiness and frustration’ appears to be a bit less than a reasonable amount. As such, at the rate of Rs.5,500/- p.m., he is entitled for a differential amount of Rs.12,500/- in that regard. 9. A sum of Rs.3,000/- awarded by the Tribunal towards ‘nourishment, attendant and conveyance charges’ andasum of Rs.5,000/- awarded by it towards ‘loss of happiness and frustration’ appears to be a bit less than a reasonable amount. Considering the nature of injuries sustained by the injured, alleged disability said to have been suffered by him and the circumstances of the case, we enhance the compensation towards ‘nourishment, attendant and conveyance charges’ by a sum of 2,000/- and the compensation towards ‘loss of happiness and frustration’ including the ‘loss of amenities’ by a sum of Rs. 20,000/-. 10. Towards ‘loss of future income on the ground of disability’, the Tribunal has awarded a sum of Rs.91,800/-. Even though the learned counsel for the appellant argued for considering higher percentage of disability, we find no reason to vary the percentage of disability assessed at 10% by the Tribunal. As such, confining the percentage of disability, the entitlement of the claimant for compensation towards ‘loss of future income’ after taking his monthly income at Rs.5,500/- would be Rs.1,12,200/- (Rs.5,500/- x 12 x 17x 10/100). After deducting a sum of Rs.91,800/- awarded by the Tribunal, the claimant/appellant is entitled for differential amount of a sum of 20,400/- as enhancement. 11. Barring the above, the claimant/appellant is not entitled for enhancement of compensation or awarding of compensation under any other heads. 12. Thus, in total the claimant/appellant is entitled for a total enhancement of a sum of Rs.54,900/- (Rupees Fifty Four Thousand Nine Hundred Only), which is in addition to the compensation awarded by the Tribunal. 13. Accordingly, we proceed to pass the following: ORDER The appeal is allowed in part. The judgment and award passed by the III Motor Accident Claims Tribunal, Ballari in MVC No.549/2011 dated 18.12.2012 is modified to the extent that the compensation awarded at Rs.3,94,716/- is enhanced by a sum of Rs. 54,900/-, thus fixing the total compensation at Rs.4,49,616/- (Rupees Four Lakh Forty Nine Thousand Six Hundred Sixteen Only). The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and the terms regarding deposit of the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded and awarding Advocate’s fee, shall remain unaltered. The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and the terms regarding deposit of the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded and awarding Advocate’s fee, shall remain unaltered. In view of the order passed in this matter on 06.01.2015, the appellant/claimant is not entitled to interest for the delayed period of 306 days, which has caused in filing this appeal. Draw modified award accordingly.