IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 17th DAY OF JULY 2015

BEFORE

THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR

MFA.NO.200335 OF 2014 (MV)

BETWEEN:

NAGAPPA @ NAGINDRAPPA S/O MAHADEVAPPA SEEBA, AGE: 31 YEARS, OCC: DRIVER OF JCP ETACHI, NOW NIL, R/O VILLAGE HONNUR, TQ. JEWARGI, NOW RESIDING AT BUSGI BUILDING, NEAR CHALUKYA BAR, BRAHMPUR, GULBARGA – 585 102.

…APPELLANT

(BY SRI B.S. NASI, ADVOCATE)

AND:-

1. SAJAT ALI S/O ABDUL RASHEED, AGE: MAJOR, OCC: NOT KNOWN, OWNER OF HERO HONDA, R/O K.W.S GOVT. QUARTERS, WATER SUPPLY, GUNJ, GULBARGA – 585 102.

2. UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, P.B. NO.47, SUPER MARKET, DR. JAWALI COMPLEX, GULBARGA – 585 101, REPRESENTED BY ITS DM. GULBARGA – 585 102.

…RESPONDENTS

(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2, V/O DATED 14.10.2014 NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DT:17.12.2012 PASSED IN MVC NO.215/2012 ON THE FILE OF III ADDL. SENIOR CIVIL JUDGE & MACT AT GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Dissatisfied with the quantum of compensation awarded by the tribunal, this appeal is preferred by the claimant.

2. On 30.6.2010, the appellant-claimant was proceeding from Wadi to Jewargi on motor cycle bearing No.KA.32/L-4061 on the left side of the road at about

11.30 p.m. When he was near Dadapeer Darga of Tonasalli village, another Hero Honda motor cycle bearing No.KA.32/V-1039 came from opposite direction in rash and negligent manner and dashed against the motor cycle wherein the claimant was proceeding, as a result of the impact, the claimant fell down and sustained grievous injury, for which, he was treated in Basaveshwar Hospital, Gulbarga and thereafter at Dr. P.G. Shah Hospital, Gulbarga, wherein he was treated as inpatient from 9.10.2010 to 20.11.2010. It is stated that he was working as driver. On account of injuries, he lost his income and even after proper treatment, he suffered disability. He filed claim petition claiming compensation under Section 166 of the M.V. Act. The claim petition was opposed by the Insurer of the offending vehicle. It came up for consideration before the tribunal. The tribunal on appreciation of evidence recorded a finding that the accident occurred on account of negligence of the rider of the motor cycle

bearing KA.32/V-1039. The tribunal by taking the income of the claimant as Rs.3,000/- p.m. and disability at 20% of the whole body, awarded Rs.1,29,600/- towards 'loss of future income due to disability', which according to the claimant is on the lower side. It is contended that the compensation awarded under other heads is also on the lower side and that it requires to be enhanced considerably.

3. Learned counsel for the insurance company on the other hand argued in justification of the award passed by the Court below.

4. On hearing the learned counsel and on perusal of the entire records, the point that would arise for my consideration is:-

"Whether the compensation awarded by the tribunal is just and reasonable?"

5. It is borne out from the records that in the accident, claimant suffered comminuted fracture of right iliac bone and fracture of lower shaft of right humerus, for which, he underwent surgery i.e., open reduction and internal fixation. He was treated as inpatient for about 10 days. The tribunal awarded a paltry sum of Rs.10,000/- towards 'injury, pain and suffering'. Having regard to the fact that he sustained fracture of iliac bone and humerus bone and that he underwent surgery, I am inclined to award a sum of Rs.30,000/- towards 'injury, pain and suffering', as against Rs.10,000/- awarded by the tribunal.

6. An amount of Rs.25,000/- awarded by the tribunal towards 'medical expenses' is on the strength of the medical bills produced by the claimant and therefore no interference is called for.

7. The tribunal has awarded a sum of Rs.5,000/ towards 'attendant, nourishment and conveyance

charges', which appears to be on the lower side. So an amount of Rs.8,000/- is awarded towards 'attendant, nourishment and conveyance charges', as against Rs.5,000/- awarded by the tribunal.

8. The tribunal by taking the income of the injured claimant as Rs.3,000/- per month awarded a sum of Rs.6,000/- towards 'loss of earning during the period of treatment'. It is a fact that the claimant was treated as inpatient for about 10 days. He underwent open reduction and internal fixation so far as fracture of humerus is concerned. He had also suffered fracture of iliac bone. On account of these injuries, he must have been prevented from attending to his work for a period of three months and thereby he lost his income for the said period of three months. So by taking the monthly income at Rs.5,500/-, he is awarded a sum of Rs.16,500/- towards 'loss of income during the period of

treatment' as against Rs.6,000/- awarded by the tribunal.

9. The tribunal by taking the permanent disability of the whole body as 20% and income as Rs.3,000/ awarded a sum of Rs.1,29,600/- towards 'loss of future earnings on account of disability'. Having regard to the nature of injuries, disability of 20% taken by the tribunal seems to be reasonable. But the income taken by the tribunal is on the lower side. As I have already taken the income at Rs.5,500/- p.m., the 'loss of future income on account of 20% disability of whole body' comes to Rs.2,80,500/-. So an amount of Rs.2,80,500/- is awarded as against Rs.1,29,600/ towards loss of future income due to disability.

10. The amount awarded by the tribunal towards 'loss of future amenities' is also on the lower side. As such, a sum of Rs.30,000/- is awarded towards 'loss of future amenities'.

11. It is borne out from the medical evidence that the claimant has to undergo another surgery for removal of implants. Accordingly, the tribunal has awarded a sum of Rs.25,000/- towards 'future medical treatment', which appears to be just and reasonable and no interference is called for.

12. Thus the claimant is entitled for the compensation under the following heads:-

Sl.No.	Heads	Amount in Rs.
1	Injury, pain and suffering	30,000/-
2	Medical expenses	25,000/-
3	Loss of earning during the<br>period of treatment	16,500/-
4	Loss<br>of<br>future<br>income<br>on<br>account of 20% disability	2,80,500/-
5	Loss of future amenities	30,000/-
6	Future medical treatment	25,000/-
7	Attendant,<br>nourishment<br>&<br>conveyance charges	8,000/-
	TOTAL	4,15,000/-

13. The claimant is awarded a total compensation of Rs.4,15,000/- as against Rs.2,10,600/- awarded by the tribunal. There shall be enhancement of compensation of Rs.2,04,400/-.

14. Accordingly, I pass the following:-

ORDER

The appeal is allowed-in-part. The judgment and award dated 17.12.2012 passed in MVC No.215/2012 by MACT, Gulbarga stands modified. The appellantclaimant is awarded enhanced compensation of Rs.2,04,400/- over and above the compensation awarded by the tribunal with 6% interest from the date of petition till the date of realisation.

The respondent-Insurance company is directed to deposit the enhanced compensation together with 6% interest within a period of two months from the date of receipt of a copy of this order.

In the event of deposit, a sum of Rs.1.00 lakh shall be invested in the name of the claimant in Fixed Deposit for a period of five years in any Nationalised Bank of his choice. Balance amount shall be released in favour of the appellant-claimant.

Sd/-

JUDGE *mn/-