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2016 DIGILAW 704 (KAR)

Pavankumar Dyamappa Ani v. Maruti Mareppa Godake

2016-09-20

B.MANOHAR

body2016
JUDGMENT : B. Manohar, J. The appellant is the claimant. Being not satisfied with the quantum of compensation awarded by the Principal Senior Civil Judge and Additional MACT, Dharwad (hereinafter referred to as 'Tribunal' for short) in the judgment and award dated 20.03.2014 made in MVC No.211/2013, seeking enhancement of compensation. 2. The appellant filed claim petition contending that on 18.12.2012 at about 6.20 p.m., while he was proceeding as a pillion rider on a motorcycle bearing Reg.No.KA-25/EG-8279 on Gokul Road, Hubli, a motorcycle bearing Reg.No.KA-25/EJ-5551 came from the opposite direction in a rash and negligent manner and dashed against the motorcycle on which the claimant was proceeding. Due to the said impact, the claimant fell down and sustained grievous injuries. Immediately after the accident, he was shifted to the KIMS Hospital, Hubli and thereafter he took treatment at Vivekanand Hospital, Hubli as an inpatient for a period of 35 days. The claimant claimed that he spent more than Rs.2,50,000/- towards medical expenses. Prior to the accident, he was working as a mechanic and earning Rs. 10,000/- p.m. and due to the accidental injuries, he could not do the work of a mechanic. Hence, he sought for compensation of Rs. 12,00,000/-. 3. In response to the notice issued by the Tribunal, respondent No.1 though served remained unrepresented. Respondent No.2- insurance company filed written statement denying the entire averments made in the claim petition and also rash and negligent riding of the motorcycle. Respondent No.2 contended that due to contributory negligence on the part of the riders of the motorcycle as well as the offending vehicle, the accident occurred. However, the rider of the motorcycle not possessed any driving licence as on the date of the accident. The claim petition filed by the claimant is bad by non-joinder of necessary parties and sought for dismissal of the claim petition. 4. On the basis of the pleadings of the parties, the Tribunal framed necessary issues and additional issues. The claimant in order to prove his case examined himself as P.W.1, the doctor who treated the claimant, as P.W.2 and got marked Exs.P1 to 14. On behalf of the respondents, no witnesses were examined nor any document was marked. 5. 4. On the basis of the pleadings of the parties, the Tribunal framed necessary issues and additional issues. The claimant in order to prove his case examined himself as P.W.1, the doctor who treated the claimant, as P.W.2 and got marked Exs.P1 to 14. On behalf of the respondents, no witnesses were examined nor any document was marked. 5. The Tribunal after appreciating the oral and documentary evidence let in by the parties and taking into consideration the spot panchanama, MVI report, copy of the charge sheet and the complaint held that, due to the rash and negligent riding of the offending vehicle, the accident occurred and the claimant who was travelling as a pillion rider fell down and sustained injuries. Though the respondent had taken the contention regarding contributory negligence, the respondent did not step into the witness box and proved its case. Accordingly, it was held that due to the actionable negligence on the part of the rider of the offending vehicle accident occurred and the claimant was entitled for the compensation. 6. With regard to the quantum of compensation is concerned, in the accident the claimant sustained closed fracture of right femur and patella besides injuries to the right side of his forehead. The CT Scan film shows that the claimant has sustained injuries to his right lower limb. Further, he took treatment as an inpatient for a period of 35 days. The Tribunal awarded a sum of Rs.40,000/- towards pain and suffering, Rs.20,000/- towards loss of amenities, Rs.9,000/- towards loss of income during laid up period, Rs. 14,000/- towards attendant charges, extra diet and conveyance, Rs. 1,87,793/- towards medical expenses and Rs. 1,45,800/- towards loss of future income. In all, a sum of Rs.4,16,593/- has been awarded with interest at 6% p.a. 7. Sri. Gururaj R. Turamari, learned counsel appearing for the claimant contended that claimant was aged about 21 years at the time of the accident and he sustained fracture of right femur and patella and injuries to the right side of his forehead. In view of the fracture of right femur and patella, he cannot do the work of a mechanic. The accident was occurred in the year 2012. The Tribunal has determined the income of the claimant at Rs.4,500/- p.m., which is on the lower side. In view of the fracture of right femur and patella, he cannot do the work of a mechanic. The accident was occurred in the year 2012. The Tribunal has determined the income of the claimant at Rs.4,500/- p.m., which is on the lower side. Even in case of a daily wage worker working in various departments, the income is being taken at more than Rs.6,000/- p.m. The compensation awarded towards loss of amenities and loss of income during laid up period is on the lower side and sought for enhancement of compensation. 8. On the other hand, learned counsel Sri. Rajesh B. Rajanal appearing for the insurance company supports the impugned judgment and award passed by the Tribunal. He contended that, after considering the injuries sustained and treatment taken by the claimant, the Tribunal awarded just and fair compensation and it does not call for any interference by this Court and sought for dismissal of the appeal. 9. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the impugned judgment and order and oral and documentary evidence let in by the parties. The only point that arises for consideration in this appeal is, "Whether the quantum of compensation awarded by the Tribunal is in accordance with law ?" 10. The occurrence of the accident and injuries sustained by the claimant due to rash and negligent riding of the offending vehicle is not in dispute. The finding given by the Tribunal with regard to the actionable negligence on the part of the rider of the offending vehicle has become final. The dispute is only with regard to the quantum of compensation awarded by the Tribunal. 11. The claimant claimed that he was earning Rs. 10,000/- p.m. as a mechanic. No document has been produced in this regard. Even in case of a daily wage workers working in the various departments, their income is being taken at more than Rs.6,000/- p.m. Admittedly, the claimant was working as a mechanic and the income of Rs.4,500/- taken by the Tribunal is on the lower side. Hence, the income of the claimant is determined at Rs.6,500/- p.m. The doctor has stated the disability at 15%. As on the date of the accident, the claimant was aged about 21 years and the appropriate multiplier would be 18'. Hence, the income of the claimant is determined at Rs.6,500/- p.m. The doctor has stated the disability at 15%. As on the date of the accident, the claimant was aged about 21 years and the appropriate multiplier would be 18'. Hence, taking into consideration the income of the claimant at Rs.6,500/-, applying the multiplier of 18' and the disability of 15%, the loss of future income works out to Rs.2,10,600/- as against Rs. 1,45,800/- awarded by the Tribunal. The claimant has to lead remaining life with 15% disability. The Tribunal has awarded a sum of Rs.20,000/- towards loss of amenities, which is on the lower side. Hence, a further sum of Rs. 15,000/- is awarded towards loss of amenities. However, taking into consideration the income as Rs.6,500/- p.m., the claimant is entitled for compensation of Rs. 10,000/- towards loss of income during laid up period, in addition to Rs.9,000/- awarded by the Tribunal. In all other respects, the compensation awarded by the Tribunal is undisturbed. In all, the claimant is entitled for an enhanced compensation of Rs.89,800/- with interest at 6% p.a. from the date of petition till the date of deposit. Accordingly, I pass the following : ORDER (i) The appeal is allowed in part. The judgment and award passed by the Tribunal dated 20.03.2014 in MVC No.211/2013 is modified. (ii) The claimant is entitled for the enhanced compensation of Rs.89,800/- with interest at 6% p.a. from the date of petition till the date of deposit. In view of the order dated 31.03.2016 passed by this Court, the claimant is not entitled to interest for the delayed period of 562 days in filing the appeal.