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2019 DIGILAW 2134 (KAR)

Divisional Controller v. Mahadev

2019-11-05

ALOK ARADHE, P.G.M.PATIL

body2019
JUDGMENT : 1. NWKRTC (for short 'the Corporation') being aggrieved by the judgment and award dated 07.05.2011 passed in MVC No.13/2010 on the file of the Senior Civil Judge and Additional M.A.C.T., Athani (for short 'the Tribunal'), has filed this appeal. 2. It is the case of the claimant before the Tribunal that on 31.10.2009 at about 3.45 p.m. the petitioner along with his mother were proceeding towards Bhiradi to attend funeral of their relative on motorcycle bearing No.MH-10/ AP-4085, when they reached near Datta Mandir Kudachi, the driver of the KSRTC Bus bearing No.KA-01/F-8148 came from the opposite side, driving the vehicle in a rash and negligent manner and dashed against the motorcycle, due to the impact the petitioner and his mother fell down and the petitioner sustained grievous injuries to his right leg and other injuries. Immediately, he was shifted to Dr.Anil Chandrapattan Hospital, Miraj and thereafter he was shifted to Army Hospital, Pune for further treatment and there, his leg was removed and the petitioner spent more than one lakh towards medical treatment. It is further submitted that the petitioner was hale and healthy prior to the incident, aged about 25 years, was serving in Army as a Soldier and earning more than Rs.20,000/- per month. Due to the accidental injuries, the petitioner has become permanently physically disabled and is unable to do any work as he was doing earlier. Therefore, he filed the claim petition against the Corporation. 3. Upon service of notice, the Corporation appeared and filed objections denying the averments made in the petition. It is further contended that the accident in question occurred due to rash and negligent riding of the motorcycle by the petitioner and not due to rash and negligent driving of the KSRTC Bus. On the basis of the pleadings, the Tribunal framed issues. The claimant examined himself as PW1 and one witness as PW2 and got marked nineteen documents as Exs.P1 to P19. The respondent has not produced any oral or documentary evidence. The Tribunal after hearing both the parties allowed the claim petition in part awarding compensation of Rs.37,98,353/- with interest at the rate of 6% per annum from the date of petition till its realization after deducting 10% out of the total compensation of Rs.42,20,392/- towards the negligence on the part of the claimant. 4. The Tribunal after hearing both the parties allowed the claim petition in part awarding compensation of Rs.37,98,353/- with interest at the rate of 6% per annum from the date of petition till its realization after deducting 10% out of the total compensation of Rs.42,20,392/- towards the negligence on the part of the claimant. 4. The Corporation being aggrieved by the impugned judgment has filed this appeal on the ground that the impugned award is passed erroneously. The appellants along with appeal have filed I.A.No. 1/2018 under Order 41 Rule 27 of C.P.C. seeking leave of this Court to produce additional evidence/documents annexed to the application. The claimant-respondent has not filed any objection to the said application. 5. We have heard learned counsel for the appellants. 6. The Tribunal has awarded a sum of Rs.40,58,172/- towards loss of future earnings due to disability of the claimant. This Court by order dated 23.07.2019 directed the respondent-claimant to produce necessary document to show that the respondent-claimant has been discharged from the Army service or he has been entrusted with any other job which has diminished his earning capacity as that was existing prior to amputation of his leg. If no authenticated document is produced, then this Court will be compelled to rely on the document produced by the appellants. However, the respondent has not produced any documents as directed. On the other hand, the documents produced by the appellants along with I.A.No. 1/2018 goes to show that the claimant-respondent has been continued in service. Therefore, we are of the considered opinion that the application filed by the appellants seeking leave of the Court to produce additional documents by way of additional evidence is to be allowed in terms of the order dated 23.07.2019. Accordingly, the application is allowed. 7. The letter dated 12.04.2018 issued by the ASC Records (South) shows that the respondent-claimant is still in service. On the other hand, the respondent-claimant has not produced any document as directed by this Court by order dated 23.07.2019. Therefore, we hold that the respondent is not entitled for a sum of Rs.40,58,172/- towards loss of future earning due to disability as awarded by the Tribunal and the said claim has to be disallowed as he is continued in service and there is no loss of future income. Accordingly, the appeal is allowed in part. The impugned award is modified disallowing a sum of Rs.40,58,172/-. Accordingly, the appeal is allowed in part. The impugned award is modified disallowing a sum of Rs.40,58,172/-. 8. The statutory deposit, if any, made by the appellants shall be refunded to the appellants.