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2015 DIGILAW 1272 (KAR)

Mehboobsab v. Mahesh

2015-11-23

BUDIHAL R.B., S.ABDUL NAZEER

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JUDGMENT : Budihal R.B., J. This appeal is preferred by the appellant/claimant being aggrieved by the judgment and award dated 15.07.2015 passed by the Principal Senior Civil Judge and Addl. MACT Belagavi, in MVC No. 103/2015. 2. Brief facts leading to filing of the petition before the Claim's Tribunal: "The appellant filed a petition under Section 166 of MV Act, alleging that on 07.01.2015 at about 06.00 p.m., when he was going on the left side of the road by walk at Hanuman Nagar, at that time the rider of motorcycle bearing No. KA-22/EF-6601 came from his behind without following traffic rules in a rash and negligent manner and dashed to him. In the process, he sustained severe grievous injuries. He took treatment at Vijaya Hospital and also at Kapileshwar Hospital and spent a sum of Rs. 3,00,000/- for medicine. He was aged about 35 years as on the date of accident and earning Rs. 500/- per day by doing centering work. He suffered permanent physical disability. Hence, he prayed Rs. 50,00,000/- as compensation. Respondent Nos. 1 and 2 appeared and filed their objections statement denying the contention taken in the petition and respondent No. 2-Insurance Company filed the objections specifically contending that the vehicle of respondent No. 1 was involved falsely and there was no accident as alleged by the petitioner. Considering the pleadings of both the parties, the Tribunal framed the issues and parties led evidence. On behalf of the appellant/claimant two witnesses were examined and documents Exs. P1 to P34 got marked. On the side of the insurance company the insurance policy got marked as Ex. R.1 and no oral evidence was led by the insurance company. After considering the oral, as well as documentary evidence, ultimately the Tribunal allowed the petition in part and awarded total compensation of Rs. 17,90,200/-. Being aggrieved by the same that it is inadequate, the appellant/claimant is before this Court in this appeal." 3. Heard the arguments of the learned counsel appearing for the appellant/claimant and also the learned counsel appearing for the respondent/insurance company. 4. Learned counsel for the appellant submitted that he was doing centering work and he was earning Rs. 500/- per day. It is also his submission that though the doctor was of the opinion that he was having disability of 95%, but ultimately the Tribunal has taken only 80%, which is on the lower side. 4. Learned counsel for the appellant submitted that he was doing centering work and he was earning Rs. 500/- per day. It is also his submission that though the doctor was of the opinion that he was having disability of 95%, but ultimately the Tribunal has taken only 80%, which is on the lower side. The learned counsel submitted that it is case of paraplegia, the Tribunal accepted the same and recorded the findings to that effect also. He also submitted that there was 100% functional disability and hence, the disability of 80% taken by the Tribunal is on the lower side. He also made the submission that so far as the monthly income is concerned, the monthly income taken at Rs. 7,000/- is also on the lower side, reasonable income of Rs. 10,000/- per month ought to have been considered by the Tribunal. Hence, submitted that the compensation awarded is on the lower side, the appeal be allowed and the enhancement of amount of compensation as claimed may be awarded. 5. Per contra, learned counsel for respondent No. 2-insurance company has submitted that firstly so far as the age of the appellant-claimant that he was aged 35 years, absolutely no documents are produced before the Court. It is also submitted that looking to the cross-examination of P.W.1, his age comes to 42 years, this aspect is totally ignored by the Tribunal. So far as monthly income is concerned, Rs. 7,000/-, which is taken by the Tribunal itself is on the higher side and no Neurologist has been examined before the Tribunal. He has submitted that even with regard to the functional disability of 80% taken by the Tribunal is just and proper and it does not call for interference by this Court. Learned counsel has submitted that whatever the compensation awarded is just and proper and submitted to dismiss the appeal. 6. We have perused the grounds urged in the appeal memorandum, judgment and award passed by the Tribunal and also other materials produced in the case. 7. Looking to the judgment and award of the Tribunal, the Tribunal has taken into consideration the oral and documentary evidence in detail, but in spite of such material produced and there is opinion of the doctor that there is disability of 95% to the whole body, the Tribunal has taken only 80%. 7. Looking to the judgment and award of the Tribunal, the Tribunal has taken into consideration the oral and documentary evidence in detail, but in spite of such material produced and there is opinion of the doctor that there is disability of 95% to the whole body, the Tribunal has taken only 80%. But perusing the materials placed on record, nature of the injuries suffered, physical disability, we are of the opinion that as it is a case of paraplegia, functional disability of 100% is just and proper. 8. So far as the age of the appellant-claimant is concerned, though the learned counsel for the respondent No. 2-insurance company contended that there is no material produced in the case to prove the said aspect, but after assessing entire materials on record, Tribunal has already recorded the finding that he was aged 35 years, challenging the same, the insurance company has not come up in appeal. Therefore, the age of 35 years is to be accepted as a correct age. 9. Regarding the monthly income of the appellant-claimant is concerned, no doubt it is contended by the appellant-complainant that he was earning Rs. 500/- per day, doing centering work, but during the course of trial, he has not placed cogent material to accept the same. Therefore, the Tribunal has taken notional income of Rs. 7,000/- per month, but considering the facts and circumstances, nature of the injuries suffered and the other materials placed on record, we are of the opinion that Rs. 7,000/- per month is totally on the lower side, as incident is of the year 2015, therefore, Rs. 9,000/- per month is considered to be just and reasonable. If the age of claimant is taken as 35 years, the proper multiplier applicable is 16 and there is 100% functional disability, therefore, the total amount comes to Rs. 17,28,000/- (Rs. 9,000 X 12 x 16). 10. So far as other heads are concerned, looking to the reasonings and findings recorded by the Tribunal as narrated in paragraph 20 of the said judgment, we are of the opinion that under the said heads, the Tribunal has awarded just and reasonable amount, which does not call for any interference by this Court. 11. Therefore, the loss of future earnings is enhanced from Rs. 10,75,200 to Rs. 17,28,000/-, hence, the enhanced amount is Rs. 11. Therefore, the loss of future earnings is enhanced from Rs. 10,75,200 to Rs. 17,28,000/-, hence, the enhanced amount is Rs. 6,52,800/- and the compensation awarded under the other heads remain as it is. 12. Hence, appeal is allowed-in-part enhancing the compensation amount to the tune of Rs. 6,52,800/-. The insurance company is directed to deposit the enhanced amount of Rs. 6,52,800/- with at 6% interest p.a. from the date of petition till realization. The insurance company is directed to deposit the said amount with interest within 8 weeks from the date of receipt of copy of this judgment. The entire amount, which is enhanced by this Court be released in favour of the appellant-claimant. No order as to costs.