IN THE HIGH COURT OF KARNATAKA

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CIRCUIT BENCH AT GULBARGA

Dated this the $4^{th}$ Day of September, 2008

Present

THE HON'BLE MR JUSTICE HULUVADI G RAMESH

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THE HON'BLE MR JUSTICE A S BOPANNA

Miscellaneous First Appeal No. 10871 of 2005(MV)

Between:

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Sachin, S/o Mallimath, Sajjan, Age: 23 years, P.W.D. Contractor, Amandanagar Near Ghantoji Departmental Stores, Gulbarga.

..APPELLANT

(By Sri.U.Narayan, Adv.)

And:

1. Mallinath Sajjan, S/o Basappa Sajjan, Aged about 51 years, PWD Contractor, Anandanagar, Near Ghanjoji Departmental Stores, Gulbarga.

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2. The Divisional Manager, Oriental Insurance Co. Ltd., Gulbarga. ..RESPONDENTS

(By Sri.R.V.Nadagouda, Adv. for R-2)

VI MANAHARA FIGH COURT OF KARNAHARA HIGH COURT OF KARNAHARA FIGH COURT OF MANAHARA TITUT COURT

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This Miscellaneous First Appeal is filed under S.173(1) of MV Act against the judgment and award dated 29.8.05 passed in MVC No.513/04 on the file of the Prl. District Judge & MACT, Gulbarga, partly allowing the claim petition for compensation and seeking enhancement of compensation.

This Miscellaneous First Appeal coming on for orders this day, Sri Huluvadi G Ramesh, J., delivered the following:-

JUDGMENT

Sri.R.V.Nadagouda, learned Counsel takes notice for respondent No.2-Insurer. Notice to respondent No.1 is dispensed with. $\mathcal{H}$

2. This appeal is by the claimant against the judgment the MACT. Gulbarga award passed $bv$ in and M.V.C.No.513/04 by order dated 29.8.05 being not satisfied with the quantum of compensation awarded.

3. The claimant is a Diploma Engineering student. - On $3.4.02$ when he was returning along with his father from Mundola to Gulbarga in a motorcycle bearing No.KA32/K-3898 due to the rash and negligent driving of the motor cycle by respondent No.1 he dashed to the claimant as a result of which, the claimant fell down and sustained fracture of the left femur and later he was admitted to Dr.Shah's Hospital at Gulbarga. The Tribunal on entertaining the objections filed by the Insurer and the respondent No.1 having held that the accident was due to the rash and negligent driving on the part of the rider of the motor cyclist has awarded a compensation of Rs.36,000/- with 6% interest from the date of petition till payment. Being not satisfied with the same, the claimant is before this Court in this appeal.

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4. Heard the learned Counsel for the respective parties.

5. The Counsel for the appellant has submitted that the claimant is a Diploma Engineering student and he has suffered 22% disability towards the whole body; the Tribunal has not properly considered the loss of future earning and the amount awarded towards pain and sufferings is also too It is further contended that the claimant has to meager. undergo one more operation i.e., removal of K nail. The Tribunal without taking into consideration the medical expenses incurred and the nature of injuries suffered has simply proceeded to award a meager compensation.

6. Per-contra, the learned Counsel appearing for the Insurer Sri.R.V.Nadagouda has submitted that the Tribunal has awarded compensation, which is just and proper, and it does not require any interference.

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7. In the light of the arguments advanced, the points requires be considered are. whether the which to compensation awarded by the Tribunal is just and proper and whether it requires enhancement?

8. So far as the negligence on the part of the rider of the motor cycle is concerned the same is held in the affirmative by the Tribunal. Thus, the liability is saddled on the Insurer since the vehicle is insured. In so far as the injuries suffered by the claimant in the accident in question is concerned, he has suffered a fracture of left thighbone, which is said to be grievous in nature. The claimant is aged 24 years and at the time of accident he was said to be studying Diploma Engineering course. Having regard to the nature of injury sustained and pain and sufferings endeavoured, it would be appropriate to award a sum of Rs.25,000/- towards pain and sufferings. In so far as the disability suffered by the claimant is concerned, although it is stated as 22% for the whole body since the claimant has produced the certificate issued by the $\mathbb{W}^\checkmark$

VI MANIVAHANA MIGH COUKT OF KAKNAHAKA HIGH COUKT OF KAKNAHAKA MIGH COUKT OF NANIVAHANA HIGH COUKT

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private Doctor, even assuming that he has sustained a grievous injury the disability would be at the most 15% to the whole body. On that head by applying the appropriate multiplier of 17 and also taking the notional income into consideration it would be appropriate to award Rs.38,000/-. Towards medical expenses, the Tribunal has awarded $Rs.16.000/$ bills $\overline{as}$ against the produced and also Rs. 15,000/- towards loss of amenities and enjoyment in life. Apart from that it is stated that the claimant has to undergo operation of removal of K nail and on that head he is awarded another Rs. $10,000/-$ . Thus in all the claimant would be entitled for Rs. 1.04.000/- together with interest at the rate of 6% from the date of petition till deposit, out of which, 50% shall be deposited in F.D. in the name of the claimant for a The remaining amount shall be period of three years. disbursed to the claimant. $\mathcal{W}^{\mathcal{P}}$

COURT OF KARNALAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNALAKA HIGH COURT OF KARNATAKA TIOT COURT

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9. Accordingly, appeal is allowed in part.

Sri.Nadagouda, learned Counsel is permitted to file his vakalath within four weeks from today.

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