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Karnataka High Court · body

2019 DIGILAW 1178 (KAR)

Subhas v. Venkappa

2019-06-10

P.G.M.PATIL

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JUDGMENT : P.G.M.Patil, J. Though these matters are listed for orders, with consent of the learned counsels appearing on both sides, these matters are taken up for final disposal, as service is complete. 2. The claimant being dissatisfied with the common judgment and award dated 25.9.2013, passed in MVC No.2028/2011 and MVC No.2025/2011, by the Senior Civil Judge and Addl. MACT, Saundatti, have filed these appeals. 3. It is the case of the claimants before the tribunal that, on 20.1.2011, the claimants were travelling from Mangaluru to Bagalkote in Bolero vehicle bearing registration No.KA-48/M-2365 via Yaragatti. At about 4.30 a.m. when they were proceeding towards Bagalkote after passing Yaragatti, near Mangesh Dhaba, the driver of the vehicle drove the same in a rash and negligent manner and in a high speed and lost control over the vehicle and dashed to the katta of a bridge on the road side, due to which the driver succumbed to the injuries on the spot. All the claimants sustained grievous injuries all over the body. The injured were immediately shifted to primary health center and thereafter they were shifted to Ganga Surgical and Fracture Clinic, Gokak, wherein they took treatment as inpatient and spent huge amount towards medical expenses. 4. The claimant in MVC No.2028/2011 has further stated that prior to the accident he was hale and healthy and was doing advocacy and also agriculture personally and earning Rs. 20,000/- per month and maintaining the family. Now due to the accident, he is unable to go to lands to supervise the agricultural works and also unable to attend the Court work and he has become permanently disabled and lost his future earning capacity. 5. The claimant in MVC No.2025/2011 has further stated that prior to the accident he was hale and healthy and was an agriculturist by profession and earning Rs. 20,000/- per month and maintaining the family. Now due to the accidental-injuries, he is unable to go to the lands to supervise the agricultural works and has become physically disabled. Therefore the claimants claimed compensation against the owner and insurer of the offending vehicle. Three claim petitions were heard together before the tribunal. 6. In pursuance of notices, respondents No.1 and 2 appeared before the tribunal. Respondent No.1 has not chosen to file any objections. Therefore the claimants claimed compensation against the owner and insurer of the offending vehicle. Three claim petitions were heard together before the tribunal. 6. In pursuance of notices, respondents No.1 and 2 appeared before the tribunal. Respondent No.1 has not chosen to file any objections. Respondent No.2/the insurance company has filed the written statement denying the age, occupation and medical expenses of the injured and contended that the compensation claimed by the claimants is highly exorbitant, excessive and without any basis. It is also contended that the owner of the vehicle has violated the terms and conditions of the insurance policy and therefore the 2nd respondent is not liable to pay any compensation. 7. On the basis of the pleadings of the parties, the tribunal framed issues in all the cases. In support of their claim petitions, claimants got examined themselves as PWs.1 to 3 and also got examined one witness as PW.4 and got marked in all 44 documents as Exs.P.1 to P.44. Respondent No.2 has produced two documents as Exs.R.1 and R.2. The learned member of the tribunal after hearing both the parties, passed the impugned judgment, awarding a compensation of Rs. 10,000/- in MVC No.2028/2011 and Rs. 1,22,900/- in MVC No.2025/2011 with interest at 6% p.a. from the date of petition till realization. 8. The claimant in MVC No.2028/2011, being dissatisfied with the impugned judgment and award, has filed MFA No.24789/2013 and the claimant in MVC No.2025/2011, being dissatisfied with the impugned judgment and award, has filed MFA No.24790/2013, seeking enhancement of the compensation. 9. Heard the learned counsel for the claimants/appellants and the learned counsel for the respondent insurance company. MFA No.24789/2013 10. Learned counsel for the appellant submitted that the tribunal has not awarded medical expenses in terms of the medical bills produced before the tribunal. The learned counsel further submitted that the claimant has produced medical bills at Ex.P.10 and prescriptions at Exs.P.8 and P.9. Accordingly a sum of Rs. 4,600/- is shown to have been incurred towards medical expenses. However the tribunal has awarded Rs. 800/- towards medical expenses and has awarded global compensation of Rs. 10,000/-. 11. The learned counsel further submitted that the claimant has produced medical bills at Ex.P.10 and prescriptions at Exs.P.8 and P.9. Accordingly a sum of Rs. 4,600/- is shown to have been incurred towards medical expenses. However the tribunal has awarded Rs. 800/- towards medical expenses and has awarded global compensation of Rs. 10,000/-. 11. Considering the injuries sustained by the claimant, namely crushed laceration on the forehead and cut laceration on the left side of the forehead each measuring 5 x 2 cms and 3 x 2 cms, respectively and that he was treated initially in the Government hospital and thereafter he took treatment at Ganga Surgical and Fracture Clinic, Gokak, the tribunal has observed that the amount claimed towards dressing operation to the tune of Rs. 4,600/- is not satisfactorily explained. Since the medical bills are produced at Ex.P.10, it appears, there was no necessity of any explanation. Under these circumstances, the tribunal ought to have awarded a global compensation of Rs. 15,000/- in all, considering the medical expenses and the injuries sustained by the claimant. Accordingly this Court holds that the claimant is entitled for global compensation of Rs. 15,000/-. MFA No.24790/2013 12. Learned counsel for the claimant submitted that the tribunal has considered the income of the claimant at Rs. 5,000/- per month which ought to have been Rs. 6,000/- per month, even as per the guidelines for settlement of cases before the Lok Adalat and further that the disability considered by the tribunal at 5% of the whole body is on lower side. 13. The learned counsel for the insurer submitted that the income considered by the tribunal is proper and the disability considered is also proper and there is no need for interference with the judgment and award. 14. The learned counsel for the appellant/claimant also submitted that the tribunal has not awarded medical expenses of Rs. 22,400/- in terms of medical bills produced at Ex.P.32. The claimant contended before the tribunal that he was an agriculturist and earning Rs. 20,000/- per month. However he has not produced any acceptable evidence to prove his income, except Exs.P.37 to P.42 record of rights, which do not stand in the name of the claimant. Therefore the tribunal has considered his income at Rs. 5,000/- per month. The accident occurred on 20.1.2011. 20,000/- per month. However he has not produced any acceptable evidence to prove his income, except Exs.P.37 to P.42 record of rights, which do not stand in the name of the claimant. Therefore the tribunal has considered his income at Rs. 5,000/- per month. The accident occurred on 20.1.2011. Considering the age and occupation of the claimant and also year of the accident, and also the guidelines provided for settlement of cases before the Lok Adalat, it appears, it is just and necessary to consider the income of the claimant at Rs. 6,000/- per month for calculating the compensation under the head loss of future earning capacity. 15. It is further seen that as per the evidence of PW.4 Dr.G.S.Umarani, the claimant is suffering from disability to the extent of 25% for the fracture of mandible and loss of three teeth on the right side. He has issued the disability certificate Ex.P.35. The tribunal has considered the permanent disability of the claimant at 5% of the whole body which ought to have been considered at 8% being 1/3rd of the 25% for the fracture of mandible and loss of three teeth. Therefore the compensation towards loss of future earning capacity has to be awarded considering the permanent disability of the claimant at 8% of the whole body. Further the tribunal has applied the multiplier 17 which should be 18. The claimant has produced medical bills at Ex.P.32 to the tune of Rs. 22,400/-. However the tribunal has awarded only Rs. 4,000/- under the head medical expenses, which needs to be enhanced by awarding Rs. 22,400/-. Therefore on reassessment of the compensation, just compensation is hereby awarded to the claimant. Accordingly the compensation towards loss of future earning capacity comes to Rs. 1,03,680/- (Rs. 6,000/- x 12 x 8% x 18). 16. A total compensation of Rs. 50,851/- is awarded towards medical expenses as against Rs. 32,851/- awarded by the tribunal. Towards pain and suffering Rs. 30,000/- and Rs. 2,000/- towards attendant charges awarded by the tribunal is left undisturbed. Rs. 5,000/- is awarded towards food and nutrition as against Rs. 3,000/- awarded by the tribunal. Rs. 6,000/- is awarded towards loss of income during laid up period and a sum of Rs. 10,000/- is awarded towards loss of amenities. Thus, the claimant/appellant is entitled for a total compensation of Rs. 2,07,531/- as against Rs. 1,22,900/- awarded by the tribunal. Rs. 5,000/- is awarded towards food and nutrition as against Rs. 3,000/- awarded by the tribunal. Rs. 6,000/- is awarded towards loss of income during laid up period and a sum of Rs. 10,000/- is awarded towards loss of amenities. Thus, the claimant/appellant is entitled for a total compensation of Rs. 2,07,531/- as against Rs. 1,22,900/- awarded by the tribunal. Therefore both the appeals deserve to be partly allowed. Accordingly, this Court proceed to pass the following: ORDER MFA No.24789/2013 and MFA No.24790/2013 are partly allowed. The appellant/claimant in MFA No.24789/2013 is awarded with compensation of Rs. 15,000/-, with interest at 6% p.a. from the date of petition till realization. The appellant/claimant in MFA No.24790/2013 is awarded with compensation of Rs. 2,07,531/- with interest at 6% p.a. from the date of petition till realization. The order with regard to deposit and disbursement passed by the tribunal holds good. Send the records to the concerned tribunal.