Karnataka High Court
Arun S/O Dyavappa Dyapai vs Suryakant Krishnaji Shinde on 14 October, 2022
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MFA No. 101060 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO. 101060 OF 2019 (MV)
BETWEEN:
ARUN S/O DYAVAPPA DYAPAI,
AGE: 26 YEARS, OCC: PRIVATE SERVICE,
R/O: NEAR RAILWAY STATION,
GUDAGERI, TQ: KUNDGOL,
NOW AT C/O. PRAVEEN M. HIREGOUDAR,
H.NO.93, PRASHANTHNAGAR,
BEHIND MURUDESHWAR FACTORY, HUBBALLI.
...APPELLANT
(BY SRI. CHANDRASHEKHAR M HOSAMANI, ADVOCATE)
AND:
1. SURYAKANT KRISHNAJI SHINDE,
AGE: 53 YEARS, OCC: OWNER OF LORRY,
R/O: AT POST: LINGNUR-416202,
TQ: KAGAL, DIST: KOLLHAPUR.
2. UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
ENKAY COMPLEX, KESHWAPUR,
HUBBALLI-580023.
...RESPONDENTS
(BY SRI. RAJASHEKHAR S. ARANI, ADV., FOR R2;
R1 NOTICE DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 17.10.2018
PASSED IN MVC NO.408/2016 ON THE FILE OF THE I-
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MFA No. 101060 of 2019
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIMS TRIBUNAL, HUBBALLI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The claimant in MVC No. 408/2016 on the file of the I- Additional Senior Civil Judge and Additional M.A.C.T., Hubballi (for short "the Tribunal") has filed this appeal seeking enhancement of the compensation awarded by the Tribunal.
2. The facts in brief are that the claimant was employed in a private company and had gone to Udupi and Mangalore to fix the flex boards of his company in a mini goods vehicle bearing registration No.KA-25/AA-0703. When they were on their way, a heavy goods vehicle bearing registration No.MH-09/CU-2052, driven by its driver from the opposite direction in a rash and negligent manner, dashed against the vehicle in which the claimant was traveling. As a result, he sustained fracture of right femur and right patella and other injuries. He was an inpatient between 25.03.2016 -3- MFA No. 101060 of 2019 to 20.04.2016 and spent Rs.2,50,000/- for his treatment. He claimed that he was aged 23 years and was earning Rs.15,000/- per month. Hence, he sought for compensation from the owner and insurer of the heavy goods vehicle.
3. The insurer denied the accident as well as its liability to pay the compensation on various grounds. It also accused of the driver of the mini goods vehicle of composite negligence. Based on these rival contentions, the Tribunal awarded the compensation as follows:
Head Amount
(in Rs.)
Pain and sufferings 40,000/-
Medical expenses 2,02,393/-
Future loss of earnings on account of disability 1,81,440/-
For loss of income during laid up period 14,000/-
For loss of amenities, nourishment, food, 20,000/-
shelter, conveyance, attendance charges etc. For loss of future medical expenses 10,000/-
Total 4,67,833/-
Being aggrieved by the quantum of compensation awarded, the claimant is in appeal.
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4. The learned counsel for the claimant contends that as against the evidence of the claimant that he was earning a sum of Rs.15,000/- per month, the Tribunal has considered his notional income at a sum of Rs.7,000/- per month. He submitted that even as per the chart prescribed for settlement of accidental cases before Lok-Adalath, the notional income is a sum of Rs.8,750/- per month. He, therefore, prayed that the income of the claimant be considered at a sum of Rs.8,750/- per month and the compensation be reworked accordingly. He further submitted that the Tribunal failed to award adequate compensation towards pain and sufferings and other conventional heads. Further he claimed that since claimant had suffered two fractures on right leg, as against the evidence of the doctor that he claimant had suffered disability to the extent of 38% to the right lower limb, the Tribunal had considered the disability to the whole body at 12%, which is inadequate having regard to the fact that the claimant was employed in a private company which has involved in the business of putting up flex boards and therefore, there is a partial functional disability in so far as the claimant is concerned -5- MFA No. 101060 of 2019 and therefore, the disability ought to have been assessed reasonably considering the disability assessed by the doctor who treated the claimant.
5. Per contra, the learned counsel for the insurer contended that the doctor had deposed that the claimant had suffered disability to the extent of 38% to the right lower limb and as per the ALIMCO guidelines, the disability to the whole body is rightly considered at 1/3rd. He submitted that the compensation awarded by the Tribunal under conventional heads is just and proper and does not call for any reconsideration.
6. I have considered the submissions made by the learned counsel for the appellant-claimant and the insurer. As rightly contended by the learned counsel for the claimant, this court has accepted a sum of Rs.8,750/- in similar circumstances as the monthly notional income. Hence, there is no reason as to why the said sum should not be applied to the claimant in this case also. The claimant claims to be a person employed in a private company which is involved in the business of putting up flex boards. Therefore, the -6- MFA No. 101060 of 2019 fracture of two bones of right leg would result in partial functional disability to the claimant and therefore, it is appropriate that the disability is assessed at 15% to the whole body. This Court has also noticed that the Tribunal has awarded inadequate compensation under conventional heads and therefore, the same is recalculated and re-determined as follows:
Head Amount
(in Rs.)
Pain and sufferings 50,000/-
Medical expenses 2,02,393/-
Future loss of earnings on account of disability Rs.8,750/- x 12 (months) x 18 (multiplier) x 2,83,392/- 15% (disability) = Rs.2,83,392/-
For loss of income during laid up period 17,500/-
(Rs.8,750 x 2 months =Rs.17,500/-)
For loss of amenities 40,000/-
nourishment, food, shelter, conveyance, 15,000/-
Attendant charges 5,000/-
For loss of future medical expenses 25,000/-
Total 6,38,285/-
7. In view of the above, the appeal is allowed in part and the compensation of Rs.4,67,833/- awarded by the Tribunal is enhanced to Rs.6,38,285/-.
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8. The enhanced compensation shall carry interest @6% per annum from the date of petition till the date of realization, which shall be deposited by the insurer before the Tribunal within a period of one month from the date of receipt of certified copy of this order.
9. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed off accordingly.
Sd/-
JUDGE YAN List No.: 1 Sl No.: 26