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2019 DIGILAW 1164 (KAR)

Mallesha v. Shivarajakumar

2019-06-07

H.T.NARENDRA PRASAD

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JUDGMENT : H.T. Narendra Prasad, J. This appeal is filed by the appellant challenging the judgment and award dated 23.02.2018 passed by the I Addl. Senior Civil Judge & AMACT, Chikkamagaluru, in MVC 39/2017, whereby the Tribunal has granted compensation of Rs.2,20,000/- with interest at 6% per annum. 2. Brief facts of the case: On 29.02.2016 at about 9.15 a.m. when the claimant was proceeding on his motorcycle bearing Registration No.KA-12-J-7747 near Siddarban Cross, Siddarban, Chikkamagaluru Taluk, to go to Joldal Mailimane Estate, at that time, car bearing Registration No.KA-02-M-9245, driven by its driver in a rash and negligent manner dashed against his motorcycle and caused the accident. As a result, claimant sustained fracture of shaft of right femur bone and grievous injury to right foot and other parts of the body. He was shifted to M.G. Hospital, Chikkamagaluru, wherein he was given first aid treatment and thereafter, he was shifted to Father Mullars Medical College, Hospital, Mangaluru, wherein he has taken treatment as an in-patient for 20 days and also underwent surgical operation and rod was inserted. Immediately after recovering from the injuries, the claimant filed a claim petition before the Tribunal in MVC No.39/2017. In support of his case, he examined himself as PW-1 and Dr. Ronald Menezes as P.W.2 and marked 12 documents as Exs. P.1 to P.12. On the other hand, the Insurance Company has not examined any witness, but has produced copy of Insurance Policy marked as Ex.R.1. After appreciation of the oral and documentary evidence, the Tribunal granted compensation of Rs.2,20,000/- with interest at 6% per annum. Being aggrieved by the same, the present appeal is filed seeking enhancement of compensation. 3. The learned counsel appearing for the claimant has contended that, at the time of accident, the claimant was aged 39 years, and earning Rs.15,000/- per month. The Tribunal was not justified in taking his monthly income at Rs.8,000/-. He further contended, due to the accident, he has suffered grievous injuries and also underwent surgery. He has examined Dr. Ronald Menezes as P.W.2. The doctor in his deposition has stated that the claimant has suffered permanent disability of 30% to his right lower limb. The Tribunal has awarded meagre compensation under the category of 'loss of amenities' and 'pain and suffering' and under other categories. Hence, the learned counsel for the claimant prays for allowing the appeal. 4. Ronald Menezes as P.W.2. The doctor in his deposition has stated that the claimant has suffered permanent disability of 30% to his right lower limb. The Tribunal has awarded meagre compensation under the category of 'loss of amenities' and 'pain and suffering' and under other categories. Hence, the learned counsel for the claimant prays for allowing the appeal. 4. Per contra, the learned counsel appearing for the Insurance Company contended that, even though the claimant claimed that he was earning Rs.15,000/- per month, he has not produced any material to substantiate the same. Under the circumstances, the Tribunal has taken his monthly income at Rs.8,000/- per month. He further contended that the fracture has been reunited and the injuries are all minor in nature. Further the Tribunal, considering the materials and evidence on record, has rightly awarded just and reasonable compensation. Therefore, he prays for dismissal of the appeal. 5. Heard the learned counsel for the parties. Perused the records. 6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 29.02.2016 due to rash and negligent driving of the car bearing Registration No.KA-02-M-9245 by its driver. 7. Due to the accident, claimant has sustained lacerated injury over right foot measuring 6 x 10 cm. in size and fracture of shaft of right femur bone and he was treated as in-patient for a period of 20 days. He has examined Dr. Ronald Menezes as P.W.2. In his deposition, the doctor has stated that the claimant has suffered permanent disability of 30% to his right lower limb, which he has to undergo through out his life. He has suffered pain and suffering at the time of taking treatment. 8. Considering the same, compensation of Rs.25,000/- awarded by the Tribunal under the head "pain and sufferings" is on the lower side and hence, the same is enhanced to Rs.45,000/-. 9. Under the category of 'loss of amenities' the Tribunal has awarded only Rs.15,000/- and it is on the lower side and hence, the same is enhanced to Rs.35,000/-. 10. As far as the income of the claimant is concerned, even though he has claimed that he was earning Rs.15,000/- per month, but he has not produced any document to establish the same. 10. As far as the income of the claimant is concerned, even though he has claimed that he was earning Rs.15,000/- per month, but he has not produced any document to establish the same. In the circumstances, the Tribunal, left with no other option has taken his monthly income at Rs.8,000/- per month, which is on the lower side. This Court in catena of cases, has relied upon the chart prepared by this Court for the purpose of deciding matters at Lok Adalath. According to the chart, for an accident of the year 2016, the income should be taken notionally at Rs.9,500/- per month. P.W.2 doctor has opined that the claimant has suffered disability of 30% to right lower limb. When whole body disability is taken, it comes to 10%. Multiplier of 15' adopted by the Tribunal is just and proper. Accordingly, loss of future income has been reassessed at Rs.1,71,000/- (Rs.9,500/- x 12 x 15 x 10/100) as against Rs.1,44,000/- awarded by the Tribunal. 11. Considering the nature of injuries, the duration of treatment is taken as 3 months. Further, as the income of the claimant has been enhanced, 'loss of earning capacity during laid up period' is enhanced from Rs.16,000/- to Rs.28,500/- (Rs.9,500/- x 3 months). 12. The claimant has examined Dr. Ronald Menezes as P.W.2. In his deposition, the doctor has stated that claimant has undergone surgery and he needs money for future medical expenses and also for removal of implant. Therefore, Rs.10,000/- awarded by the Tribunal towards 'future medical expenses' is on the lower side and the same is enhanced to Rs.20,000/-. 13. The claimant was treated as inpatient for a period of 20 days in the hospital. Considering the duration of treatment Rs.10,000/- awarded by the Tribunal under the head "incidental expenses" is just and proper and the same does not require any enhancement. 14. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 23.02.2018 passed by the I Addl. Senior Civil Judge & AMACT, Chikkamagaluru, in MVC 39/2017, stands modified. Considering the duration of treatment Rs.10,000/- awarded by the Tribunal under the head "incidental expenses" is just and proper and the same does not require any enhancement. 14. For the reasons stated above, this appeal is partly allowed. The judgment and award dated 23.02.2018 passed by the I Addl. Senior Civil Judge & AMACT, Chikkamagaluru, in MVC 39/2017, stands modified. The claimant is entitled to receive the following compensation: Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 25,000 45,000 Loss of future earning capacity 1,44,000 1,71,000 Food, nourishment, conveyance and attendant charges 10,000 10,000 Loss of amenities 15,000 35,000 Loss of earning capacity during laid up period 16,000 28,500 Future medical expenses 10,000 20,000 Total 2,20,000 3,09,500 15. The Insurance Company is directed to deposit, with the Tribunal, the entire compensation amount, along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three weeks from the date of receipt of the certified copy of this judgment. The amount so deposited shall be disbursed to the claimant as per the award of the Tribunal after verifying his identity.