Karnataka High Court
Gurudas Shankar Gavkar vs Tukaram Janardhan Fdte, Gaonkar on 27 April, 2018
Bench: Ravi Malimath, S.G.Pandit
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 27TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE S.G.PANDIT
M.F.A.NO.21382 OF 2013 (MV)
BETWEEN:
SRI. GURUDAS SHANKAR GAVKAR
AGE: 25 YEARS,
OCC: TRUCK DRIVER (PRESENT NIL),
R/O: PALDA, POST: AKHETI
TAL: JOIDA, DIST: KARWAR
PRESENTLY R/O: C/O: DEEPAK DADDIKAR,
HUNCHENATTI, BELGAUM
TQ AND DIST: BELGAUM
....APPELLANT
(BY SRI.HARISH S. MAIGUR, ADVOCATE)
AND:
1. SRI. TUKARAM JANARDHAN FDTE, GAONKAR
AGE: MAJOR, OCC: BUSINESS,
R/O: 277/3, FATTE WADA,
ADOCONA, P.O.MARCEL, PONDA,
GOA, DIST: GOA, NORTH,
GOA-403107
2. THE DIVISIONAL MANAGER
NATINAL INSURANCE CO.LTD.
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MARUTI/RAMDEV GALLI, BELGAUM
TAL & DIST: BELGAUM
... RESPONDENTS
(R1-SERVED)
(BY SRI.S.S.JOSHI, ADVOCATE FOR R2)
THIS APPEAL FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
12.12.2012 PASSED IN M.V.C.NO.11 OF 2012 ON THE FILE
OF THE FAST TRACK COURT-III AND MEMBER,
ADDL.M.A.C.T. BELGAUM, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
*****
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.04.2018 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:-
JUDGMENT
The claimant is in appeal seeking enhancement of compensation being dissatisfied with the compensation granted in MVC No.11 of 2012, passed by the Fast Tract Court-III and Member, Additional MACT, Belagavi (for short "the Tribunal").
2. The claimant filed claim petition stating that while he was proceeding along with his relatives to -3- Belagavi on 07.09.2011 in a Tata Sumo bearing registration No.GA-05/B-2045 and when returning from Belagavi, due to the rash and negligent driving of the driver of the vehicle, while avoiding another vehicle coming from opposite side took the vehicle towards extreme left side and dashed to the road side tree. Due to which, the inmates of the vehicle sustained injuries and the petitioner sustained injury to his right kidney and several injuries to his body. The petitioner was admitted to Vijaya Hospital, Belagavi, where he was inpatient for 15 days. He states that he had spent huge amount for medical expenses. At the time of accident, the claimant was aged about 24 years and he was driver by profession and getting salary of Rs.8,000/- per month. Due to the accident, the claimant who is a bachelor has lost his marriage prospects and his income has been reduced.
3. On service of notice, respondent No.1 remained absent and he was placed exparte. Respondent -4- No.2 filed objection denying the petition averments and stated that it is concocted and fraudulent.
4. To prove the claim, the claimant himself examined as PW-1 and also examined the Doctor, who has issued disability certificate as PW-2 and produced documents as Exs.P1 to P23. The respondent-insurer has not examined anybody and only got marked the insurance policy as Ex.R1.
5. In the present appeal as the issue involved is only for enhancement. We have not gone into any other issue.
6. We have heard the learned counsel for the parties and examined the records.
7. The claimant stated in his evidence that he is working as a driver and earning a sum of Rs.7,500/- per moth as salary including batta. He produced salary certificate-Ex.P23 to show that the salary is Rs.7,500/- per -5- month. The Tribunal has accepted the same and has taken the monthly salary of the claimant as Rs.7,500/-. At the time of accident, the claimant was aged about 25 years. Taken into his age, the appropriate multiplier would be '18'.
8. Due to the accident, the claimant has lost his one kidney, which is on record. The claimant in his evidence has deposed that he sustained grievous injury to his right kidney. He was admitted to Vijaya Hospital, Belagavi. Further he states that he could not obtain any certificate of disability from the Vijaya Hospital, Belagavi, even though he requested the doctor, who treated the claimant on several occasions stating that he is unable to attend the Court. The claimant states that he approached one doctor Sri.Suresh S.Karlatti, who issued disability certificate and who is examined as PW-2. The doctor states that the claimant has suffered total physical disability to an extent of 20% to the whole body. The doctor is of the opinion that the right kidney is not visualized in Ultrasound -6- report and abdominal report. The evidence shows that the removal of right kidney may affect to some normal work of the claimant. The Tribunal has even though there is cogent evidence with regard to the injuries suffered by the claimant has taken only 10% as disability to the whole body as against the doctor's evidence at 20%.
9. On going through the medical evidence, we are of the opinion that the doctor's evidence is to be accepted and we take 20% disability as opined by the doctor to the whole body. Thus the claimant would be entitled for compensation under the head of loss of earning capacity due to disability as follows:
Rs.7,500/- x 12 x 18 x 20% = Rs.3,24,000/-
10. Taking into consideration the injuries suffered by the claimant that too the kidney, which is an important organ of the body, we deem it proper to award an additional amount of Rs.50,000/- on the head of pain and agony. Further the claimant would be entitled for -7- compensation of Rs.45,000/- (Rs.7,500/- x 6) towards loss of income during laid up period.
11. It is on evidence that the injury suffered by the claimant to his kidney has affected his marriage prospects. In his evidence the claimant has stated that till today he is bachelor and three offers for marriage were rejected because of the said reason. Therefore, we deem it appropriate to award a sum of Rs.1,00,000/- in addition to 75,000/- awarded on the head of loss of amenities and future unhappiness. The claimant would be further entitled to a sum of Rs.20,000/- towards the litigation expenses. Further, the compensation awarded under the heads minimum medical expenses and Nursing, attendant charges, nourishment and conveyance are just and proper and undisturbed.
12. Accordingly, the claimant is entitled for a total compensation of Rs.7,86,000/- as against Rs.3,97,000/- awarded by the Tribunal.
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13. Thus, the claimant shall be entitled to a total compensation under the following heads:
1. Injury, pain and agony Rs.1,50,000/-
(Right kidney Nephrectomy)
2. Minimum medical expenses Rs. 52,000/-
3. Nursing Attendant charges, extra Rs. 20,000/-
Nourishment and conveyance
4. Loss of income during laid up Rs. 45,000/-
period
5. Loss of earning capacity due to Rs.3,24,000/-
disability
6. Loss of amenities and future Rs.1,75,000/-
unhappiness
7. Litigation expenses Rs.20,000/-
Total Rs.7,86,000/-
Accordingly, there would be an enhanced
compensation of Rs.3,89,000/-, which shall carry interest at the rate of 8% per annum from the date of petition till date of realization.
14. In the result, we proceed to pass the following:
ORDER
i) The appeal filed by the claimant is allowed in part.
ii) The impugned judgment and award is modified to the extent that the appellant -9- shall be entitled to enhanced compensation of Rs.3,89,000/-, which shall carry interest at the rate of 8% per annum from the date of petition till deposit.
iii) Respondent No.2-insurer shall deposit the enhanced compensation before the Tribunal within a period of six weeks from the date of the receipt of the certified copy of this judgment.
iv) On such deposit, the 50% shall be kept in fixed deposit in the name of the appellant in any nationalized bank for a period of five years with liberty to him to withdraw the periodical interest accrued thereon.
v) Remaining amount shall be released in favour of the appellant, immediately on deposit being made.
vi) Registry to draw the modified
accordingly.
Sd/- Sd/-
JUDGE JUDGE
RHR/-