Karnataka High Court
Sitaram S/O Tukaram Wadekar vs Paranmeshwar S/O Bannndeppa Hawale on 24 March, 2023
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MFA No. 201929 of 2015
C/W MFA No. 32275 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO. 201929 OF 2015 (MV-I)
C/W
MISCL. FIRST APPEAL NO. 32275 OF 2013
MFA NO.201929/2015:
BETWEEN:
SITARAM
S/O TUKARAM WADEKAR
AGE: 27 YEARS, OCC: AGRICULTURE
R/O HITTANALLI, TQ.BIJAPUR-586101
...APPELLANT
(BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)
AND:
1. PARANMESHWAR
S/O BANDEPPA HAWALE
AGE: 55 YEARS, OCC: BUSINESS
R/O A/P JAWALI
DIST. OSMANABAD
Digitally signed
by RAMESH 2. THE MANAGER
MATHAPATI
Location: High THE SHRIRAM GENERAL INSURANCE CO. LTD.,
Court of
Karnataka
E/8 EPIP,RIICIO INDUSTRIAL AREA,
SITAPURA JAIPUR
RAJASTHAN-302022
...RESPONDENTS
(BY SMT SANGEETA BHADRASHETTY, ADVOCATE FOR R2;
V/O DATED 04.11.2020 NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ALLOW THE APPEAL AND MODIFY THE IMPUGNED JUDGMENT AND
AWARD DATED 06.04.2013 PASSED BY THE MOTOR ACCIDENT
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MFA No. 201929 of 2015
C/W MFA No. 32275 of 2013
CLAIMS TRIBUNAL NO.II, BIJAPUR IN MVC NO.1816/2010 AND
ENHANCE THE COMPENSATION AS PRAYED FOR.
MFA NO.32275/2013:
BETWEEN:
THE MANAGER
THE SHRIRAM GENERAL INSURANCE CO. LTD.,
E/8 EPIP, RIICIO INDUSTRIAL AREA,
SITAPURA JAIPUR
RAJASTHAN-302022
(REP. BY ITS AUTHORIZED SIGNATORY)
...APPELLANT
(BY SMT SANGEETA BHADRASHETTY, ADVOCATE)
AND:
1. SITARAM
S/O TUKARAM WADEKAR
AGE: 25 YEARS, OCC: AGRICULTURE
R/O HITTANALLI, TQ.BIJAPUR-586101
2. PARANMESHWAR
S/O BANDEPPA HAWALE
AGE: 53 YEARS, OCC: BUSINESS (OWNER
OF THE PICK UP VAN BEARING NO.
MH-25/P-0648) R/O A/P JAWALI
DIST. OSMANABAD.
...RESPONDENTS
(BY SRI KOUJALAGI C.L., ADVOCATE FOR R1;
V/O DATED 04.11.2020 NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT PRAYING TO
ALLOW THE APPEAL AND MODIFY THE IMPUGNED JUDGMENT AND
AWARD DATED 06.04.2013 PASSED BY THE I ADDL. DISTRICT
JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.II AT BIJAPUR
IN MVC NO.1816/2010.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 201929 of 2015
C/W MFA No. 32275 of 2013
JUDGMENT
1. This appeal is filed by the claimant seeking enhancement of compensation passed by the MACT II, Bijapur (for short 'Tribunal') in MVC No.1816/2010 dated 06.04.2013.
2. Though this appeal is listed for Admission, with the consent of learned Advocates appearing for both parties, it is taken up for final disposal.
3. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal.
4. The brief facts of the case are that:
On 01-08-2010 at about 4.00 p.m. on Mangalweda- Pandharpur road near Sanjay Dhaba, Mangalweda while the petitioner was travelling in a pick up van bearing Reg. No.M.H- 25/P-0648 along with his bullocks from Sangola to Shiragav, at that point of time the driver of the said vehicle drove it in a rash and negligent manner and in spite of request by the passengers in it to drive slowly, he did not heed to their request and suddenly applied brake and as a result of said -4- MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013 impact, petitioner fell down in the trailer and sustained fracture of his right tibia and fibula and other injuries. Immediately after the accident petitioner was shifted to Nikam Hospital, Pandharpur, where he was admitted and undergone treatment and also doctors have conducted operation and inserted steel rod and plates, screws and discharged him and advised to take follow up treatment. Petitioner has spent 1,00,000/- for medical expenses etc., and still he has not recovered completely and has to take follow up treatment by spending amount. According to the petitioner at the time of accident he was 22 years old, hale and healthy, doing agricultural work earning Rs.10,000/- per month. Due to permanent disability caused as a result of said accident, he is unable to work as before and his earning capacity is lost. Due to the disability caused he is unable to do hard work, getting pain while walking, unable to sit properly. According to the petitioner the said accident was due to rash and negligent act of pick up van driver engaged by first respondent - Parameshwar being the owner of that vehicle and it was insured with second respondent and the policy was valid on the date of accident, and as such both respondents are jointly and severally liable to -5- MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013 pay him the compensation. Hence, he preferred a claim petition seeking compensation.
5. After service of notice, respondent Nos.1 and 2 appeared and filed written statement denying the contents of claim made by the petitioner and sought for dismissal of the claim petition.
6. Based on these rival contentions, the claim petition was set down for trial.
7. Based on the oral and documentary evidence, the Tribunal after considering the notional monthly income of the claimant awarded compensation of Rs.1,91,401/-.
8. With regard to enhancement of the compensation is concerned, learned counsel for the appellant in MFC No.201929/2015 has submitted his arguments that Tribunal has observed in page 11 of the impugned judgment that the disability caused loss of future earning, but in the same page while awarding compensation the Tribunal has not awarded any compensation for loss of -6- MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013 future earning. Hence, he sought for awarding amount for the loss of future earnings.
9. In para 9 of page 9 of MVC No.1816/2010 the Tribunal has observed as under:
"9) Issue No.2: Now coming to crucial aspect of the case, more particularly the nature of injuries sustained by the petitioner in that accident, pain and suffering endured, treatment taken by spending amount, sustaining of permanent disability if any and the amount spent on taking treatment, loss of future earning capacity etc., in order to award just and reasonable amount of compensation.
In this regard the injured claimant Sitaram Wadekar is examined as PW-1 and he has produced documents at Ex.P-1 to P-17 and got examined one Dr. Ashok Nayak Orthopedic Surgeon of Bijapur who has clinically examined the Injured/petitioner before giving his evidence and issued disability certificate Ex.P-16 by taking X- ray on right lower limb. As per the evidence of petitioner Sitaram and the evidence of Dr. Ashok Nayak /PW-2 it is found that I the said accident this petitioner has sustained cut lacerated wound over the right leg and also convulsion on right thigh and on taking X-ray the doctors at Nikam Orthopedic Trauma Care Center, Pandharpur have confirmed communicated fracture of tibia and fibula of right leg and accordingly, immediately after the accident he was taken to said Hospital and treated clinically till he was discharged on 22- 8-2010 as can be seen from the discharge card Ex.P-4 and wound certificate Ex.P-11 Issued by the said Hospital authorities. At the time of said accident the petitioner has undergone wound debridement and also undergone surgery and Interlocking by fixing -7- MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013 implants were made in the fractured right tibia and fibula since it was grade-III compound communicated fracture to the right lower limb. While discharging the petitioner the doctors have advised him to take follow up once in 3 days as can be seen from discharge card Ex.P-
4. In addition to that recently on 9-10-2012 the petitioner got clinically examined from Dr. Ashok R. Nalk/PW-2 a Orthopedic Surgeon of Bijapur who ha taken X-rays on the right lower limb and on clinical examination he has given his findings to the effect that due to the accidental injuries sustained by the petitioner in the road traffic accident there was compound type 3 fracture of right leg to both bones. There is an operation scar and the petitioner had taken treatment in Nikam Hospital, Pandharpur. He has also noticed tenderness present over the right leg, minimal swelling present, right ankle movements painful and restricted permanently, right knee joint movements painful and extension is restricted, unable to squat and sit crossed legs properly, patient limps while walking, there is shortening of 1 inch of right lower limb as compared to left leg. He has given further findings that there is mal-union of fractured right tibia and fibula and there are Implants like rod and screw inside the right lower limb and they have to be removed in future. As a result of said clinical finding given by Dr. Ashok Nayak/PW-2 it is permanent disability causing 35% to 40% of disability on the right lower limb. This is the evidence of PWs 1 and 2 and document Including medical records and also the disability certificate and X-rays. Of course PWs 1 and 2 have been subjected to severe cross-examination by the learned counsel appearing for the respondent No.2, but absolutely there is nothing to disbelieve their evidence. Consequently the evidence of PW-1 and 2 I accepted. It I pertinent to note here that the petitioner Sitaram is still young aged and unmarried and as a result of said permanent disability caused to his right lower limb he has to suffer throughout his life being -8- MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013 agriculture by profession, certainly the sald disability is caused loss of future earning capacity under the circumstances."
10. The Tribunal has not awarded any compensation towards loss of future earning, though the Tribunal has observed that the petitioner Sitaram is still young and unmarried, as a result of accident, he had suffered disability to the right lower limb. Being an agriculturist, certainly the said disability would have caused loss of future earning under the circumstances. The doctor has opined that there is a permanent disability to the extent of 40% towards right lower limb and as such, considering the disability it is just and proper to assess the disability at 12% to the whole body.
11. As per the guidelines issued by the Karnataka State Legal Services Authority the notional income is taken at Rs.5,500/- for the accident of the year 2010. Since the age of the injured was 22 years, the proper multiplier applicable is '18'. Thus, it would result in Rs.5,500/- x 12 x 18 x 12% = Rs.1,42,560/-, which is rounded off to -9- MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013 Rs.1,42,600/-. Accordingly, the petitioner is entitled to a sum of Rs.1,42,600/- towards loss of future earning.
12. In respect of compensation awarded under other heads, the appellant is satisfied with the award passed by the Tribunal. Accordingly, the appellant is entitled to enhanced compensation of Rs.1,42,600/- and he is entitled for total compensation of Rs.3,34,001/-.
13. With regard to liability is concerned, the learned counsel for the appellant - Smt.Sangeetha Bhadrashetty has submitted her arguments that Tribunal has failed to appreciate the oral and documentary evidence in accordance with law. In Ex.P-1 it is stated that driver of the truck came in high speed from backside and hit the pick up van bearing Reg.No. MH-25/P-0648, whereas in the further statement recorded by the police it is quiet inconsistent to the contents of the complaint. Hence, this accident is occurred due to rash and negligent act on the part of the driver of the truck. Therefore, insurance company is not liable to pay the compensation.
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MFA No. 201929 of 2015 C/W MFA No. 32275 of 201314. A perusal of impugned judgment passed by the Tribunal reveals that the Tribunal has properly appreciated the evidence on record in a proper and perspective manner. The respondent has not adduced any evidence before the Tribunal to discard the oral and documentary evidence placed by the claimants.
15. There are no valid grounds to interfere with the judgment and award passed by the Tribunal as to the liability of the insurance policy. Hence, I proceed to pass the following:
ORDER (1) MFA No.32275/2013 is dismissed.
(2) MFA No.201929/2015 is partly allowed. (3) The judgment and award dated 06.04.2013 passed by the MACT II, Bijapur, in MVC No.1816/2010 is modified to the extent of awarding enhanced total compensation of Rs.3,34,001/- with interest @ 6% p.a. from the date of accident till realisation.
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MFA No. 201929 of 2015 C/W MFA No. 32275 of 2013(4) Amount in deposit shall be transferred to the Tribunal for disbursement in terms of the award of the Tribunal.
(5) Pending IAs, if any, shall stand disposed of.
Sd/-
JUDGE DR LIST NO.: 1 SL NO.: 34