Karnataka High Court
Ananda S/O Vithoba Gavade vs Arjun S/O Tukaram Nawale on 5 July, 2023
Author: S G Pandit
Bench: S G Pandit
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NC: 2023:KHC-D:6678-DB
MFA No. 101144 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.101144 OF 2020 (MV-I)
BETWEEN:
ANANDA S/O. VITHOBA GAVADE,
AGE: 43 YEARS, OCC: AGRICULTURE (NOW NIL),
R/O: UCHGOAN, TQ AND DIST: BELAGAVI,
PINCODE: 590001.
...APPELLANT
(BY SRI. UMESH C. AINAPUR, ADVOCATE)
AND:
1. ARJUN S/O. TUKARAM NAWALE,
AGE: MAJOR, OCC: BUSINESS,
R/O: NARAYAN GAVAN, TQ: PARNER,
DIST: AHMED NAGAR,
STATE: MAHARASHTRA, PINCODE: 413307.
2. THE ORIENTAL INSURANCE CO. LTD.,
Digitally
signed by
JAGADISH T R
2ND FLOOR, MADIWALE ARCADE,
JAGADISH Location:
TR DHARWAD
Date:
CLUB ROAD, BELAGAVI-590006.
2023.07.11
14:18:08 -
0700
...RESPONDENTS
(BY SRI. RAJASHEKAR S. ARANI, ADVOCATE FOR R2)
(NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, AGAINST THE JUDGMENT AND AWARD DATED 03.09.2019
PASSED IN MVC NO.2398/2017 ON THE FILE OF THE X
ADDITIONAL DISTRICT JUDGE AND MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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NC: 2023:KHC-D:6678-DB
MFA No. 101144 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
The injured claimant not being satisfied with the quantum of compensation awarded under the judgment and award, dated 03.09.2019, passed in M.V.C. No.2398/2017 by the X Additional District Judge and Member, Additional Motor Accident Claims Tribunal, Belagavi (for short, 'the Tribunal'), is before this Court praying for enhancement of compensation.
2. The injured claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the accidental injuries sustained by him in a road traffic accident that took place on 26.05.2017 involving truck bearing registration No.MH-16/AY-4025 and motorcycle bearing registration No.MH-10/BU-4211. It was stated that by the claimant that he was aged 40 years as on the date of the accident, was doing agricultural work and was earning Rs.2,50,000/- per annum. -3-
NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020
3. On issuance of notice, respondents Nos.1 and 2 appeared and filed their separate objections. Respondent No.1 in his written statement stated that the truck was insured with respondent No.2 and the insurance policy was in force as on the date of the accident. Respondent No.2- insurer denied the claim petition averments, but admitted issuance of policy in favour of respondent No.1 in respect of the truck. It also contended that the driver of the offending truck was not having a valid and effective driving licence to drive the truck. It further contended that the appellant-claimant also had no licence; the motorcycle was not having an insurance policy; that without wearing a helmet, the appellant-claimant was riding the motorcycle; and that it was due to negligence of the claimant - the rider of the motorcycle, the accident took place.
4. In support of his case, the injured claimant examined himself as P.W.1, and examined a doctor as P.W.2, apart from marking nineteen documents as Exs.P.1 to P.19. The respondents did not examine any witness. -4-
NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020 However, with consent, a copy of the insurance policy was got marked as Ex.R.1. The Tribunal based on the material on record, awarded a total compensation of Rs.3,47,200/- on the following heads:
1. Pain and suffering Rs. 30,000/-
2. Loss of income during laid up period Rs. 42,000/-
3. Loss of future income or earnings Rs. 2,35,200/-
4. Loss of happiness and future amenities Rs. 25,000/-
5. Medical expenses Rs. 10,000/-
6. Incidental expenses Rs. 5,000/-
Total Rs. 3,47,200/-
While awarding the above compensation, the Tribunal has assessed the income of the appellant-claimant at Rs.7,000/- per month, assessed the whole body disability at 20%, and adopted the multiplier '14'. The injured claimant not being satisfied with the quantum of compensation is before this Court seeking enhancement.
5. Heard learned counsel Sri. Umesh C.Ainapur for the appellant-claimant, and learned counsel Sri. Rajashekhar S.Arani for respondent No.2-insurance company. Perused the material on record including the records of the Tribunal.
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6. Learned counsel, Sri. Umesh C.Ainapur for the appellant would contend that the Tribunal committed an error in assessing the income of the appellant/claimant at Rs.7,000/- per month when the appellant/claimant stated that he was earning a sum of Rs.2,50,000/- per annum from the agricultural work. The learned counsel would also contend that the Tribunal committed a grave error in assessing the disability of the claimant/appellant at 20% contrary to the evidence of P.W.2, the doctor, who had deposed that the claimant suffered 50% disability to a right lower limb. Further, he submits that as the appellant/claimant was doing agricultural work; he is not in a position to do the same work subsequent to the accidental injuries suffered by him. The learned counsel submits that the claimant was inpatient for 18 days and the compensation awarded under other heads are on the lower side and prays for enhancement of the compensation.
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7. On the other hand, Sri. Rajashekhar S.Arani, learned counsel appearing for respondent No.2-insurance company, would submit that the compensation awarded by the Tribunal is just and reasonable which needs no interference. Learned counsel further submits that the assessment of the whole body disability by the Tribunal at 20% is on the higher side, and the Tribunal ought to have taken the whole body disability at 1/3rd of the disability to the particular limb, as assessed and deposed by P.W.2-doctor. He submits that when P.W.2-doctor has deposed that the appellant/claimant has suffered 50% disability to a particular limb, the Tribunal ought to have taken the whole body disability at 1/3rd which comes to 16%. Thus, he prays for reduction of the compensation under the head 'loss of future income'. Learned counsel would submit that the compensation awarded on the other heads are proper and correct which needs no interference. Thus, he prays for dismissal of the appeal. -7-
NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020
8. Having heard the learned counsel for the parties and on perusal of the appeal papers and the records of the Tribunal, the following points would arise for consideration:
i) Whether the Tribunal is justified in assessing the income of the injured claimant at Rs.7,000/- per month?
ii) Whether the injured claimant is entitled for enhanced compensation?
9. The answers to the above points would be in the negative and affirmative respectively for the following reasons:
a) The accident that that took place on 26.05.2017 involving truck bearing registration No.MH-16/AY-4025 and motorcycle bearing registration No.MH-10/BU-
4211 and the resultant injury suffered by the injured claimant is not in dispute, in this appeal. The claimant has suffered the following injuries:
i) Claimant has antalgic gait and walks with walker.-8-
NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020
ii) Muscle wasting of right thigh by 2 inch and right calf by 1½ inch.
iii) Measurement of right lower limb is short by 1½ inch.
iv) There is operated scar over right thigh with discharging sinus seen. Frank mobility at fracture side.
v) Movements of knee and hip joints are restricted.
vi) Inability to run and walks with walker.
vii) Standing for long time, walking long distance, squatting, sitting cross legged, standing on affected limb and kneeling are not possible.
viii) Difficulty to walk on uneven surface, climbing, lifting weight and doing laborious work are not possible.
b) The accident is of the year 2017. The Tribunal has assessed the income of the deceased at Rs.7,000/- per month as against the claim of Rs.2,50,000/- per annum. To substantiate the said claim, the injured claimant has not placed any material on record. In the absence of any cogent material on record, it is for the Courts and Tribunals to assess the income notionally. The notional income fixed by the Karnataka State Legal Services Authority for the accident of the year 2017 is -9- NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020 Rs.10,250/-. In the absence of any material produced by the claimant to prove his income, it is appropriate to assess the notional income of the injured claimant at Rs.10,250/- per month, and the same is assessed as the monthly income of the injured claimant.
c) In the accident the appellant/claimant sustained injuries, which are referred to above. In support of his case, the injured claimant has examined P.W.2-doctor. The doctor-P.W.2, in his evidence, has stated that the injured claimant suffers from 50% disability to particular limb i.e. right lower limb. Normally, the whole body disability is assessed at 1/3rd of the disability assessed by a doctor in respect of a particular limb (lower limb). The doctor has deposed that the appellant/claimant has suffered 50% disability to the right lower limb. Taking note of the same, the Tribunal has rightly assessed the disability to the whole body at 20%. The contention of the learned counsel for the insurer that the assessment of disability by the Tribunal
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NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020 is on the higher side cannot be accepted. And, moreover, the insurer is not in appeal against the finding of the Tribunal with regard to the disability.
d) The Tribunal, based on the wound certificate at Ex.P.9, has considered the age of the claimant as 42 years as on the date of the accident and has applied the multiplier '14' and the same needs no interference.
e) Thus, the income of the injured claimant having been assessed at Rs.10,250/- per month, considering the disability at 20% and applying the multiplier '14', the injured claimant would be entitled to Rs.3,44,400/- [Rs.10,250/- x 12 x 20% x 14] under the 'head loss of future income'.
f) Considering laid up period as six months, the injured claimant would be entitled for a sum of Rs.61,500/- [Rs.10,250/- x 6] under the head 'loss of income during laid up period.
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NC: 2023:KHC-D:6678-DB MFA No. 101144 of 2020
g) Admittedly, the claimant was inpatient for more than 18 days for treatment. The claimant has suffered fracture of Grade III compound fracture right femur. Taking note of the fracture sustained by the injured claimant and the treatment taken by him, the compensation awarded under the head 'pain and suffering', 'loss of happiness and future amenities' and 'incidental expenses' are on the lower side. We deem it proper to award a sum of Rs.20,000/- in addition to Rs.30,000/- awarded by the Tribunal under the head 'pain and suffering'; Rs.25,000/- in addition to Rs.25,000/- awarded by the Tribunal under the head 'loss of happiness and future amenities'; and Rs.15,000/- in addition to Rs.5,000/- awarded by the Tribunal under the head 'incidental expenses' including diet, attendant charges and conveyance.
h) The compensation awarded by the Tribunal in a sum of Rs.10,000/- towards medical expenses is not interfered with.
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10. On reassessment, the claimant would be entitled for enhanced compensation as under:
1. Pain and suffering Rs. 50,000/-
2. Loss of income during laid up period Rs. 61,500/-
3. Loss of future income or earnings Rs. 3,44,400/-
4. Loss of happiness and future amenities Rs. 50,000/-
5. Medical expenses Rs. 10,000/-
6. Incidental expenses Rs. 15,000/-
Total Rs. 5,30,900/-
Thus, the claimant would be entitled to total compensation of Rs.5,30,900/- as against Rs.3,47,200/- awarded by the Tribunal.
11. Hence, we pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the Tribunal is modified to the extent that the claimant is entitled to total compensation Rs.5,30,900/- as against Rs.3,47,200/- awarded by the Tribunal.
c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.
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d) The respondent No.2-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.
e) Apportionment, deposit and disbursement of the enhanced compensation shall be made as per the award of the Tribunal.
f) Draw modified award accordingly. Registry to transmit the records to the Tribunal forthwith.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE KMS List No.: 1 Sl No.: 8