Karnataka High Court
Shivanand S/O Kotesh Arkachari vs Bujingappa @ Bhuganngappa S/O ... on 7 February, 2023
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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MFA No. 103788 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.103788 OF 2019 (MV-I)
BETWEEN:
SHIVANAND S/O KOTESH ARKACHARI
AGE: 31 YEARS, OCC: MANAGER IN
PAULTRY FARM (NOW NIL), R/O KAMDOD VILLAGE,
TQ: RANEBENNUR, DIST: HAVERI,
...APPELLANT
(BY SHRI CHANDRASHEKHAR M. HOSAMANI, ADVOCATE)
AND:
1. BUJINGAPPA @ BHUGANNGAPPA
S/O HANUMANTHAPPA KUNTER
Digitally
AGE: 59 YEARS, OCC: AGRICULTURE,
ANNAPURNA signed by
CHINNAPPA ANNAPURNA
DANDAGAL CHINNAPPA
R/O KAMDOD VILLAGE, TQ: RANEBENNUR,
DANDAGAL
DIST: HAVERI-581145. (OWNER OF THE
VEHICLE BEARING REG. NO. KA-27/S-5845)
2. THE DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO.LTD.,
NO.14, BHAVANI ARCHADE, 3RD FLOOR, 363738,
NEAR OLD BUS STAND, OPP. BASAVA BHAVAN,
NEW COTTON MARKET, HUBBALLI-580020.
(INSURER OF THE VEHICLE BEARING
REG.NO. KA-27/S-5845)
...RESPONDENTS
(BY SHRI M.Y.KATAGI, ADVOCATE FOR R2:
SERVICE OF NOTICE TO R2 IS DISPENSED WITH)
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MFA No. 103788 of 2019
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES
ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
18.11.2017 PASSED IN MVC NO.1467/2015 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 18.11.2017 passed by Additional Senior Civil Judge and AMACT, Ranebennur, in MVC No.1467/2015, this appeal is filed by claimant for enhancement of compensation.
2. Though this appeal is listed for admission, with consent of learned counsel for parties, it is taken up for final disposal.
3. Brief facts as stated are that on 26.11.2014, when claimant was traveling on motorcycle bearing registration no.KA27/S-5845 as pillion rider, rider rode it in rash and negligent manner and jumped over speed breaker, due to -3- MFA No. 103788 of 2019 which claimant fell down and sustained grievous injuries. Despite taking inpatient treatment at Om Hospital, Ranebennur, he did not recover fully and sustained permanent physical disability.
4. Claiming compensation on account of same, he filed claim petition under Section 166 of Motor Vehicles Act against owner and insurer of offending vehicle.
5. Upon service of notice, only insurer filed objections contending that there was breach of policy condition but, admitting issuance of insurance policy. Age, occupation, income and loss of earning capacity were disputed and claim petition opposed as being exorbitant.
6. Based on pleadings, tribunal framed issues and recorded evidence of claimant as PW1 and Dr.Manoj P. Sawakar as PW2 and got marked Exhibits P1 to P19. On behalf of respondents, -4- MFA No. 103788 of 2019 Exhibits R1 to R8 were marked during cross- examination of PW2. No oral evidence was led by insurer.
7. On consideration, tribunal held that accident occurred due to rash and negligent riding of motorcycle by its rider, claimant sustained injuries and permanent physical disability and claimant was entitled for compensation. It assessed total compensation of Rs.2,25,374/- with 7% interest p.a. and held respondents jointly and severally liable to pay same.
8. Not satisfied with compensation claimant is in appeal.
9. Shri Chandrashekhar M.Hosmani, learned counsel appearing for claimant-appellant submitted that, as on date of accident claimant was 27 years of age working as manager in poultry farm and earning Rs.25,000/- per month. However, tribunal -5- MFA No. 103788 of 2019 erroneously considered his monthly income as Rs.6,000/- and sought enhancement. It was further submitted that though PW2-Dr.Manoj P. Sawakar assessed lower limb disability at 35%, tribunal considered loss of earning capacity at 1/4 t h of same at 8.75% which was erroneous and sought enhancement. It was submitted that even award towards pain and suffering, loss of amenities, loss of income during layoff period and other incidental charges were inadequate and tribunal erred in not awarding any compensation towards future medical expenses. Hence, sought to allow appeal.
10. On other hand Shri M.Y.Katagi, learned counsel for respondent-insurer sought to support award and opposed enhancement. It was submitted that claimant failed to establish his monthly income and therefore, tribunal was justified in taking it notionally. It was further submitted that -6- MFA No. 103788 of 2019 disability sustained would not come in way of loss of earning capacity of claimant as he was stated to have been working as manager in poultry farm. It was further submitted that on over all consideration compensation awarded was just and proper and no enhancement was called for.
11. Heard learned counsel for both parties and perused judgment and award and also records.
12. From above submission, since only claimant is in appeal seeking for enhancement of compensation, point that would arise for consideration is:
"Whether claimant is entitled for enhancement of compensation as sought for?"
13. Insofar as monthly income though claimant stated that he was working as manager in poultry farm and earning Rs.25,000/- per month, same was not substantiated with any evidence. In -7- MFA No. 103788 of 2019 absence of specific evidence, tribunal would be justified in assessing it notionally, which for year 2014 is Rs.7,500/- as per norms adopted by Karnataka State Legal Services Committee for settlement of cases before Lok Adalath. Therefore, tribunal would not be justified in taking it at Rs.6,000/-. It would be just and proper to take it at Rs.7,500/-.
14. In order to establish disability, claimant examined Dr.Manoj P. Sawakar as PW2. PW2 in his deposition stated that immediately after accident, claimant was admitted to his hospital and was treated by him. Thereafter, he examined claimant for assessment of disability. On clinical examination, he found that there was flexion deformity of 10 degrees and knee extension and flexion were painful. As a result, claimant was unable to sit cross leged and squat and bear weight. X-ray taken at time of examination on -8- MFA No. 103788 of 2019 15.03.2017 indicated malunion of fracture. Based on same, he assessed permanent physical disability at 35% to right lower limb. However, while assessing loss of earning capacity, tribunal considered 1/4 t h of limb disability at 8.75%.
15. Firstly, though claimant stated that he was working as manager, same is not substantiated with any evidence. Secondly, even if he was working as manager in poultry farm, nature of duties required to be performed would be affected by disability sustained. Considering facts and circumstances of this case, it would be appropriate to assess loss of earning capacity at 10%. Thus, future loss of income would be as follows:
"Rs.7,500/- x 10% x 12 x 17 = Rs.1,53,000/-."
16. Tribunal has awarded sum of Rs.10,000/- towards pain and suffering. Since fracture is -9- MFA No. 103788 of 2019 grievous in nature, same would not be adequate and is enhanced to Rs.35,000/-.
17. Tribunal has awarded Rs.71,274/- towards medical expenses which is in complete reimbursement. Therefore, there is no scope for enhancement.
18. Tribunal has awarded Rs.10,000/- towards loss of amenities. Considering extent of disability assessed to limb, same would be inadequate. It would be appropriate to enhance it to Rs.25,000/-.
19. Normally fractures take about three months to heal. Considering said period as layoff, compensation towards loss of income would be Rs.22,500/- (Rs.7,500/- X 3).
20. Tribunal has awarded sum of Rs.15,000/- towards food, nourishment, attendant and other incidental expenses considering inpatient period
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MFA No. 103788 of 2019for a period of 14 days. Same appears just and proper.
21. In discharge summary as well as in deposition, PW2 has stated about implants in-situ which require removal or replacement. Sum of Rs.20,000/- is awarded towards same.
22. Thus, claimant is entitled for re-assessed compensation as follows:
Sl.no. Heads Amount
(in Rs.)
1. Pain and suffering 35,000/-
2. Loss of amenities 25,000/-
3. Future loss of income 1,53,000/-
4. Medical expenses 71,274/-
5. Loss of income during laid 22,500/-
up period
6. Towards Food and 15,000/-
nourishment & other
incidental charges
7. Future medical expenses 20,000/-
Total: Rs.3,41,774/-
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MFA No. 103788 of 2019
23. Insofar as rate of interest, this Court in case of Shriram General Insurance Company Limited, Rajasthan V/s Smt.Laxmi and others reported in (2018) 8 AKR 808, has held rate of interest awardable in a claim petition arising under Motor Vehicles Act has to be at 6%. Therefore, rate of interest awarded by tribunal is reduced to 6%.
Therefore, point for consideration is answered partly in affirmative as above.
24. Hence following:
ORDER a. Appeal is allowed in part.
b. Judgment and award dated 18.11.2017, passed by Additional Senior Civil Judge and AMACT, Ranebennur, in MVC No.1467/2015 is modified.
c. Claimant is held entitled for reassessed compensation of Rs.3,41,774/- as against Rs.2,25,374/- awarded by
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tribunal, which shall carry interest at 6% per annum from date of claim petition till deposit.
d. Insurer is directed to deposit enhanced compensation within a period of six weeks from date of receipt of a certified copy of this judgment.
e. Directions issued by tribunal regarding deposit and release would apply proportionately to enhanced compensation also.
Sd/-
JUDGE AM