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2018 DIGILAW 83 (KAR)

P. Anil @ Kumar v. Mohammed Fairoze

2018-01-11

RATHNAKALA

body2018
JUDGMENT : RATHNAKALA, J. 1. Heard Shri Shivarudra, learned counsel appearing for appellant and Shri H.N. Keshavaprashant learned counsel for respondent No. 2. Though this matter is listed for admission with the consent of learned counsel for both sides, the appeal is taken up for final adjudication. 2. The appellant herein is aggrieved by the judgment and award dated 01/03/2014 in MVC No. 946/2012 passed by the XVIII Addl. Judge and Member, MACT-4, Court of Small causes, Bengaluru, (for brevity "Tribunal"). By the impugned judgment and award, the Tribunal has allowed his claim petition in part filed under Section 166 of the M.V. Act and awarded a total compensation of Rs. 4,89,600/-. The appellant is dissatisfied by the quantum of compensation amount awarded. 3. Briefly stated, the appellant (hereinafter referred to as claimant) filed the claim petition before the Tribunal under Section 166 of the M.V. Act contending that while he was working as a cleaner in lorry bearing registration No KA-16-A-6718 belonging to Respondent No. 1 insured with respondent No. 2, he suffered grievous injuries in a vehicular accident dated 24.12.2011 at about 5 a.m. It was his case that while the lorry was proceeding from Bellary towards Chitradurga, due to the rash and negligent driving of the driver of the lorry, it dashed against the lorry bearing registration No. KA-04-C-6271, which was coming from the opposite direction, as a result of which the appellant sustained injuries to his right leg and other parts of the body and also open supra condylar femur fracture of right side and he was hospitalized for 13 days and a rod (external implant) was fixed. 4. The claim was contested by the insurer-2nd respondent. The Tribunal, on over all consideration of the evidentiary material allowed the appeal in part and computed the compensation as under:- Pain and sufferings Rs. 60,000/- Loss of amenities and Happiness Rs. 40,000/- Medical and incidental charges Rs. 2,15,000/- Loss of earnings during the period of treatment Rs. 20,000/- Loss of future earnings due to disability Rs. 1,29,600/- Future medical expenses Rs. 25,000/- Total Rs. 4,89,600/- 5. Shri Shivarudra, learned counsel for the appellant submits that the appellant was a cleaner and his physical fitness is the source for his future earnings. Even today he is unable to fold his right leg. The amount awarded towards loss of future income is inadequate. 1,29,600/- Future medical expenses Rs. 25,000/- Total Rs. 4,89,600/- 5. Shri Shivarudra, learned counsel for the appellant submits that the appellant was a cleaner and his physical fitness is the source for his future earnings. Even today he is unable to fold his right leg. The amount awarded towards loss of future income is inadequate. Hence the judgment and award passed by the Tribunal may be modified by enhancing the compensation by a just and reasonable amount. 6. Shri H.N. Keshava Prashanth, learned counsel for the respondent No. 2 while countering the above submission submits that the amount of compensation i.e. Rs. 60,000/- awarded towards pain and suffering is on the higher side. Having regard to the date of the accident, the Tribunal has considered each of the contentions put forth by the claimant/appellant and whatever compensation awarded is in fact a little bit exorbitant. Learned counsel for the respondent No. 2 further submits that the claimant/appellant's own pleading that he was earning Rs. 4,500/- p.m. and the Tribunal has accepted his income and also the disability at 15% to the whole body on the basis of the evidence adduced by the doctor. Hence, the impugned judgment and award does not warrant interference. 7. In the light of the above submissions, I have perused the records, so also the impugned judgment and award and the evidence put forth by the appellant/claimant before the Tribunal. There is no dispute with regard to the factual aspect of the matter that in the vehicular accident that occurred on 24.12.2011 involving lorry belonging to the 2nd respondent insured with the first respondent, the appellant/claimant has suffered injuries and open supra condylar femur fracture of right side. Though, it may be true that the appellant pleaded that he was earning Rs. 4500/- p.m. as a cleaner, it cannot be lost sight of that the benefits of the welfare legislature of Motor Vehicle Act can be contained on the ground that the claimant was unable to plead his case with accuracy and specification. 8. Considering the date of the accident and also the age of the appellant/claimant, it is highly probable that any manual worker at that point of time would have earned Rs. 8. Considering the date of the accident and also the age of the appellant/claimant, it is highly probable that any manual worker at that point of time would have earned Rs. 6000/- p.m. The claimant was aged about 20 years and the proper multiplier to calculate the loss of future income is 18' as per the judgment of the Apex Court in the case of Sarla Verma and Others vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 . In that way if loss of future earning is reworked it comes to Rs. 6000 x 12 x 18 x 15% = 1,94,400/- as against Rs. 1,20,600/-. In the considered opinion of this Court, the amount awarded under other heads commensurate with the hardship undergone and the monitory loss suffered by the claimant/appellant. Thus, the claimant-appellant is entitled for an enhanced compensation of Rs. 64,800/- rounded off to Rs. 65,000/-. 9. Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified. The appellant is entitled for additional compensation of Rs. 65,000/- with interest at 6% p.a. from the date of the petition till the date of payment. 10. Registry is directed to transmit the LCR forthwith. The respondent No. 2 Insurance Company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within three weeks from the date of receipt of a certified copy of this order. 11. After deposit, the enhanced compensation amount shall be disbursed to the claimant on proper identification.