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2019 DIGILAW 1966 (KAR)

Fayaz Ahamed, S/o. Allabaksha Tigadi v. Nazeer Ahamad S/O. Muktumasab Mujawar

2019-09-05

K.NATARAJAN

body2019
JUDGMENT : This appeal is filed by the claimant assailing the judgment and award dated 20.07.2011 passed by the Fast Track Court-III and Addl. MACT, Belgaum (hereinafter referred to as ‘the Tribunal’, for short) in MVC No.1309/2009. 2. Heard the arguments of the learned counsel for both the parties. 3. The ranks of the parties before the Tribunal are retained for brevity. 4. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’, for short), claiming compensation of Rs.10,00,000/- with 12% interest p.a., inter alia contending that on 02.06.2009 at about 12.00 hours, when the claimant was unloading the Coco cola Boxes and other cold drinks from his goods Rickshaw bearing No.KA-22/A-4102, to the shop, at that time, one Truck bearing No.MH-04/CA-4363 came in a rash and negligent manner, without following the Traffic Rules and dashed to the petitioner, due to which, he sustained multiple injuries and was taken to the hospital. The claimant was treated as an in-patient in various hospitals and spent huge amount towards his medical expenses. Due to the accidental injuries, the claimant suffered disability and filed a petition claiming compensation on various grounds and prayed to allow the petition. 5. In pursuance to the notice, respondent No.1/owner of the vehicle appeared before the Tribunal filed his statement of objections by denying the rash and negligent driving and the manner of accident, as false. However, he has contended that if any liability is there, the same shall be fastened on the respondent No.2/insurer. Respondent No.2/insurer also appeared before the Tribunal through his counsel by filing statement of objections and taking similar contentions as taken by respondent No.1 and further contended that the claimant, in collusion with the police and respondent No.1, has filed a false case to grab compensation. The insurer has denied the age, occupation, injuries and disability sustained by the claimant in the accident as false and also contended that if any liability is there, the same may be restricted as per the terms and conditions of the policy and also contended that the driver of the truck was not holding any valid and effective driving licence as on the date of the accident and hence, the insurer is not liable to pay any compensation and prayed for dismissal of the claim petition. 6. 6. Based on the rival pleadings of the parties, the Tribunal framed the following issues: ISSUES 1. Whether the petitioner prove that, the accident on 2-6-2009 at 12.00 p.m. on Khanapur-Nandgad road, near Kalamba village Bus stop took place, due to the rash and negligent driving of Truck No.MH-04/CA-4363 by its driver and that in the said accident he sustained grievous injuries as mentioned in the petition? 2. Whether petitioner is entitled for compensation? If so, what amount and from whom? 3. What order? 7. In order to substantiate his contention, the claimant himself examined as P.W.1 and also examined four more witnesses as P.W.2 to P.W.5 including the doctor and got marked 33 documents as Ex.P1 to Ex.P33. The respondent/insurer not let in any evidence except marking Ex.R1/insurance policy with the consent of the counsel for claimant. After considering the evidence on record, the Tribunal answered Issue No.1 in affirmative and partly allowed the petition by awarding compensation of Rs.2,96,400/- together with interest at the rate of 8% per annum. Assailing the judgment and award passed by the Tribunal, the claimant preferred this appeal for enhancement of compensation. 8. The counsel for claimant has strenuously contended that though the claimant was able to prove that he was driver cum owner of the vehicle and was earning income of Rs.12,000/- per month, the Tribunal has considered income of only Rs.4,500/- per month, which is very meager. This Court normally use to consider the income of unskilled labour for Rs.5,000/- per month for the year 2011 and therefore, the income of the claimant shall be enhanced to at least Rs.10,000/- per month. It is further contended that P.W.2 and P.W.3 have also been examined by the claimant to prove his disability and as per the evidence of P.W.2/Doctor, he has opined that the claimant sustained 30% disability to the right limb and 5% disability to the left pelvic. Apart from that, P.W.4 was also examined for the injuries sustained by the claimant to his Urethra, which itself amounts to 25% disability to the whole body and there is nearly 60% disability suffered by the claimant, but the Tribunal considered 10% disability to the whole body, which is very meager and prayed to enhance the compensation under the head of loss of earning capacity. It is further contended that the compensation awarded by the Tribunal towards loss of amenities, pain and sufferings, food and nourishment and other incidental charges like transportation is also very meager. It is further contended that there is no award passed by the Tribunal in respect of future medical expenses. The claimant has spent nearly Rs.2,19,000/- for his treatment but the Tribunal has awarded only Rs.1,00,000/- towards his medical expenses, which is very meager. Therefore, prayed to allow the petition and enhance the compensation. 9. Per contra, the learned counsel Sri. Nagaraj C. Kolloori, appearing for the respondent/insurer has supported the judgment and award passed by the Tribunal and contended that in view of non-production of any document, the Tribunal has rightly considered the income of Rs.4,500/- per month and same shall not be considered more than Rs.6,000/- per month. Apart from that, the learned counsel has also contended that as per the evidence of P.W.2, the claimant suffered 35% disability towards right limb and hip and 1/3rd of it comes to 12%. Even if the doctor assessed 25% disability of Urethra, 1/3rd of the same would come to 8% to 9% and in all it may not cross 22% towards whole body. Therefore, the learned counsel restricted his arguments to consider 20% disability to the whole body but not 60% or 45%. He has further contended that in view of the evidence available on record, the Tribunal has awarded just compensation under the conventional heads and hence, prayed to dismiss the appeal. 10. Upon hearing the arguments advanced by both the counsel, the points arise for consideration of this Court are as under: 1. Whether the Tribunal is not justified in awarding compensation of Rs.2,96,400/-, which calls for interference? 2. Whether the claimant is entitled for enhancement of compensation? 3. What order? 11. The claimant has established the factum of the accident that was occurred on 02.06.2009, when he was unloading Coco-cola boxes as a driver cum owner of goods auto-rikshaw bearing registration No.KA-22/A-4102 and at that time, the driver of the lorry bearing registration No.MH-04/CA-4363 came in a rash and negligent manner and dashed to him, due to which, he sustained multiple injuries. Thereafter he took treatment in various hospitals from 02.06.2009 to 20.01.2010 on various dates, as an in-patient. Thereafter he took treatment in various hospitals from 02.06.2009 to 20.01.2010 on various dates, as an in-patient. As per the wound certificate/Ex.P8, issued by the Vijaya Hospital, Belagavi, it shows that the claimant has suffered nine injuries and except 4th and 6th injury, all other injuries are grievous injuries. Most of the injuries are fracture injuries for which the claimant was admitted in various hospitals for four times i.e. from 02.06.2009 to 13.06.2009 for first time in Vijaya Hospital, Belagavi, from 19.06.2009 to 30.06.2009 for second time again in Vijaya Hospital, Belagavi, from 25.09.2009 to 12.10.2009 for third time in Kolhapur for the purpose of surgery and thereafter from 19.01.2010 to 20.01.2010 for fourth time, again in Kolhapur hospital. During the above said period of treatment and due to the surgeries, he might have suffered lot of pain and agony and the Tribunal awarding Rs.60,000/- towards pain and agony is very meager. Hence, propose to award Rs.1,00,000/- towards pain and agony as against Rs.60,000/- awarded by the Tribunal. 12. As regards compensation awarded by the Tribunal towards medical expenses, though the claimant produced medical bills and calculated for Rs.2,19,326/- but there were some duplication in the medical bills. Therefore, the Tribunal awarded only Rs.1,00,000/- towards medical expenses. However, propose to award Rs.1,25,000/- as against Rs.1,00,000/- awarded by the Tribunal. 13. As regards the income of the claimant the Tribunal has considered Rs.4,500/- per month, which is very meager. Even this Court use to consider Rs.5,000/- per month for unskilled labour as a notional income, but the claimant has established that he was owner cum driver of goods auto-rikshaw involved in the accident. Such being the case, considering Rs.4,500/- as monthly income by the Tribunal is appears to be very meager. Even if Rs.250/- per day is considered as a income, it comes to Rs.7,500/- per month. Therefore, I propose to consider Rs.7,500/- per month as income of the claimant, since he was driver cum owner of the auto-rikshaw. As regards disability, P.W.2/doctor has given his evidence. Ex.P-23, the disability certificate issued by Dr. Even if Rs.250/- per day is considered as a income, it comes to Rs.7,500/- per month. Therefore, I propose to consider Rs.7,500/- per month as income of the claimant, since he was driver cum owner of the auto-rikshaw. As regards disability, P.W.2/doctor has given his evidence. Ex.P-23, the disability certificate issued by Dr. A. B. Patil, Orthopedic Surgeon shows that the doctor found mal-united fracture of right tibia, fibula with implant in situ, mal-united fracture of pubic rami left side and osteoarthritis of right knee and ankle and observed functional disability of restriction of right knee and ankle movements, restriction of left hip movement, muscle wasting right leg and shortening of right lower limb, and as per the clinical and radiological findings and after going through ALIMCO and WHO manuals, has opined that the claimant has suffered 30% disability to his right lower limb and 5% disability of left hip joint. Though the Court use to consider 1/3rd of the disability towards whole body inspite of disability to particular limb, but even if it is considered 10% disability to the whole body in respect of right limb and 5% of disability towards left hip, it comes to 15% disability to the whole body. Likewise, as per the evidence of P.W.4/doctor, who issued disability certificate/Ex.P-26, damage was caused to the Urethra and the doctor has opined 25% disability to the whole body. The counsel for the claimant has contended that the entire 25% should be considered as disability towards whole body and it cannot be restricted. However, the counsel for the insurer has strenuously contended that even if 1/3rd of the same is considered, it would come to 8% to 9% towards whole body and there is no percentage of disability to particular parts of the body. Of course, normally, the arms either upper arm or lower arm, use to consider 1/4th towards whole body but the Urethra cannot be considered as some percentage. Considering the crush injuries on the pelvic bone including the right leg and damage caused to the Urethra, I propose to consider 15% disability instead of 25% assessed by the doctor and accordingly, I propose to consider total 30% disability to the whole body for all the injuries sustained by the claimant. Considering the crush injuries on the pelvic bone including the right leg and damage caused to the Urethra, I propose to consider 15% disability instead of 25% assessed by the doctor and accordingly, I propose to consider total 30% disability to the whole body for all the injuries sustained by the claimant. If Rs.7,500/- of monthly income and 30% of disability towards whole body is considered, it would come Rs.2,250/- and as the age of the claimant, at the time of the accident, was in between 31 to 35, the appropriate multiplier applicable is ‘16’ and hence, the claimant is entitled to Rs.4,32,000/- (Rs.2,250 X 12 X 16 = 4,32,000/- ) towards future earning capacity due to the disability sustained by him in the accident. 14. As regards loss of income during the laid up period, as per the medical documents, the claimant was admitted on different dates in various hospitals almost nearly seven months and hence, I propose to award Rs.52,500/- (7,500/- x 7 months = 52,500/- ) towards loss of income during the laid up period. 15. The Tribunal has awarded Rs.15,000/- towards nourishing, attendant charges, extra nourishment and conveyance. The claimant was admitted in various hospitals for four times, almost seven months, and he could have spent lot of amount towards food and nourishment apart from conveyance charges, therefore, I propose to award Rs.40,000/- towards food and nourishment, attendant charges, transportation charges etc., as against the Rs.15,000/- awarded by the Tribunal. 16. The Tribunal has not awarded future medical expenditure but by looking to the condition and implants, the claimant may require at least Rs.25,000/- towards future medical expenses and hence, I propose to award Rs.25,000/- towards future medical expenses. 17. The Tribunal has awarded Rs.20,000/- towards loss of amenities and future unhappiness, but by looking to the injury of pelvic bone and urethra, the amount of Rs.20,000/- awarded by the Tribunal appears to be very meager and hence, I propose to award Rs.50,000/- towards loss of amenities and future unhappiness as against Rs.20,000/- awarded by the Tribunal. Accordingly, I answer Point No.1 in favour of the claimant and as against the insurer and the claimant is entitled for the reassessed compensation as under: Towards pain and agony Rs. 1,00,000/- Towards loss of earning capacity Rs. 4,32,000/- Towards loss of income during the laid up period Rs. 52,500/- Towards medical expenses Rs. Accordingly, I answer Point No.1 in favour of the claimant and as against the insurer and the claimant is entitled for the reassessed compensation as under: Towards pain and agony Rs. 1,00,000/- Towards loss of earning capacity Rs. 4,32,000/- Towards loss of income during the laid up period Rs. 52,500/- Towards medical expenses Rs. 1,25,000/- Towards future medical expenses Rs. 25,000/- Towards food, nourishment, attendant charges and transportation charges Rs. 40,000/- Towards loss of amenities and future unhappiness Rs. 50,000/- Total Rs.8,24,500/- 18. Consequently, the appeal filed by the claimant is allowed in part. The claimant is entitled to the reassessed compensation of Rs.8,24,500/- as against Rs.2,96,400/- awarded by the Tribunal. However the claimant is entitled to interest at the rate of 6% per annum on the enhanced compensation from the date of petition. 19. The insurer is directed to deposit the enhanced compensation amount together with interest at the rate of 6% per annum from the date of petition till realization of entire amount, within a period of four weeks from the date of receipt of certified copy of this order. 20. Out of the award amount, 40% with interest shall be kept in fixed deposit in the name of the claimant, in any nationalized bank, for a period of five years. 21. I.A.No.1/2019 filed for early hearing is disposed off accordingly.