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2015 DIGILAW 1309 (KAR)

Kallappa v. Abdul Shoaib Shaikh

2015-12-03

BUDIHAL R.B., S.ABDUL NAZEER

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JUDGMENT : Budihal R.B., J. This is the appeal preferred by the appellant/claimant, being aggrieved by the judgment and award passed by the MACT, Khanapur, dated 25th June 2014, in MVC No. 2496 of 2013. 2. The brief facts leading to filing of the claim petition by the appellant before the Tribunal are that, on 13.11.2013 at about 6.15 p.m., when the appellant stood by the side of the road near Hindalga Ganapati Temple, Belagavi, the driver of the offending Tata Sumo, bearing No. MH-04/AA-930 came from behind in rash and negligent manner and dashed to the appellant, due to which he sustained grievous injuries and immediately, he was shifted to Siddivinayak Hospital, Belagavi. He sustained multiple fractures to his left leg. His left leg was amputed above knee, for which he spent Rs. 1,50,000/-. Hence, he filed a claim petition. 3. The respondents filed objection statement denying the averments made in the claim petition and the respondent/ insurance company denied the averments with regard to age, occupation, income and nature of accident, and also denied that he was earning monthly income of Rs. 15,000/-. It is also contended that the accident had occurred when the appellant abruptly crossed the road and hence, there is no negligence on the part of the driver of the said vehicle and sought for dismissal of the claim petition. 4. On the side of the claimant, two witnesses were examined as PWs-1 and 2 and documents Exs. P-1 to 14 were got marked. On the side of the respondents, no witnesses were examined and one document i.e., the policy, was got marked as Ex. R-1. 5. The Tribunal, after assessing the merits of the case, both oral and documentary, ultimately awarded total compensation of Rs. 6,97,467/- with interest at 6% per annum from the date of petition till realisation and held that both the respondents are jointly and severally liable to pay the compensation. 6. Being aggrieved by the same and also challenging the legality and validity of the said judgment and award, the claimant/appellant is before this Court. 7. We have heard the arguments of the learned counsel for the appellant, so also learned counsel for the respondent No. 2/insurance company. 8. Learned counsel for the appellant submitted that the appellant was working as a Mason and earning income of Rs. 15,000/- per month, but the Tribunal has taken only Rs. 7. We have heard the arguments of the learned counsel for the appellant, so also learned counsel for the respondent No. 2/insurance company. 8. Learned counsel for the appellant submitted that the appellant was working as a Mason and earning income of Rs. 15,000/- per month, but the Tribunal has taken only Rs. 4,500/- as monthly income, which is on the lower side. Further, he submitted that so far as the other heads are concerned, the compensation awarded is on the lower side. Hence, he submitted to allow the appeal and to award the compensation as claimed in the appeal memorandum. 9. Per contra, learned counsel appearing for the respondent No. 2/insurance company submitted that whatever compensation amount awarded by the Tribunal is just and proper and it does not require any interference by this Court. He also made submission insofar as monthly income is concerned that the appellant has not produced any document or supporting material. Therefore, the income of the appellant has been rightly taken by the Tribunal at Rs. 4,500/- per month. It is also submitted that under other heads also, the amount awarded is just and reasonable. 10. We have perused the materials placed on record, so also the judgment and award passed by the Tribunal. 11. No doubt, true that it is contended by the appellant/claimant that he was working as a Mason and earning Rs. 15,000/- per month and not produced any document in this regard, but orally he has deposed before the Tribunal. The accident is of the year 2013 i.e., on 13.11.2013. Therefore, the reasonable amount notionally to be taken is Rs. 7,500/- per month, which is just and proper. So far as injuries are concerned, the doctor has been examined, who opined that there is disability to an extent of 65%, whereas the Tribunal has taken 60% disability and in our opinion, whatever the percentage of disability taken by the Tribunal is just and proper. The proper multiplier applicable in this case, looking to the age of the appellant, is 16'. Therefore, the amount under the head of loss of future earning capacity comes to Rs. 8,64,000/- [Rs. 7,500/- X 12 X 16' X 60/100]. 12. Towards pain and suffering, the Tribunal has awarded a sum of Rs. 30,000/-. The proper multiplier applicable in this case, looking to the age of the appellant, is 16'. Therefore, the amount under the head of loss of future earning capacity comes to Rs. 8,64,000/- [Rs. 7,500/- X 12 X 16' X 60/100]. 12. Towards pain and suffering, the Tribunal has awarded a sum of Rs. 30,000/-. But, looking to the injuries sustained, the left leg of the appellant is amputed, we are of the opinion that a sum of Rs. 75,000/- will be just and reasonable amount under the said head. 13. For the loss of amenities in life, the appellant is entitled to an amount of Rs. 1,00,000/-. 14. So far as the medical expenses, the Tribunal has awarded a sum of Rs. 85,567/- based on the documents and it does not call for interference by this Court. 15. Under the head of diet, nourishment and other attendant charges, the Tribunal has awarded Rs. 25,000/-, which is on the lower side and a sum of Rs. 50,000/- is just and reasonable amount under that head. 16. Under the head loss of earning during laid up period, the appellant is entitled to Rs. 45,000/- and so far as future medical expenses, the appellant is entitled to Rs. 1,00,000/-. 17. Thus, in all the appellant/claimant is entitled to a sum of Rs. 13,19,567/-. The Tribunal has awarded an amount of Rs. 6,97,467/-. The difference comes to Rs. 6,22,100/-. The respondent No. 2/insurance company is liable to pay the difference amount of Rs. 6,22,100/- with interest at 6% per annum from the date of petition till realisation. 18. Hence, the appeal is allowed-in-part. The insurance company is directed to deposit the enhanced amount of Rs. 6,22,100/- (Rupees Six Lakhs Twenty-two Thousand and one hundred only) with interest at 6% per annum from the date of petition till realization, within eight weeks from the date of receipt of a 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.