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2019 DIGILAW 726 (KAR)

Md. Ashisq Ali v. Mohd. Rizwan Pasha

2019-03-25

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. 1. The claimant being unsatisfied with the judgment and award dated 07.03.2012 passed in MVC No. 116/2011 on the file of Fast Track Court, Basavakalayan has filed this appeal. 2. It is the case of the claimant before the Tribunal that on 04.09.2010 the petitioner was proceeding towards Basavakalayan along with his goods i.e., leather in lorry bearing No. AP-09/U-7082 and when the said lorry came near Chandkapur village on N.H. 9 around 07.45 a.m. the driver of the lorry drove the same in a high speed and also in a rash and negligent manner and dashed to the tree situated on the roadside. Hence, the petitioner sustained crush injury on his left foot and other parts of the body. He was shifted to Government hospital, Basavakalyan, thereafter he has taken treatment at Vasavi hospital, Hyderabad and spent more than Rs. 2.00 lakh towards medical expenses and requires more than Rs. 1.00 lakh for future medical treatment. The petitioner was aged 35 years and was doing leather business and earning more than Rs. 25,000/- per month. Now he is unable to do the work as he was doing prior to the accident. Therefore, claimed compensation of Rs. 10.00 lakh against respondent No. 1 owner of the vehicle and respondent No. 2 insurer of the offending vehicle. 3. In pursuance of notice respondent No. 1 remained absent, placed ex. parte. Respondent No. 2 appeared through counsel and filed written statement. Respondent No. 2 has denied the age, occupation and income of the petitioner and also denied the nature of injuries sustained by him. Further he has contended that the petitioner was proceeding in a lorry with leather load by paying fare to the respondent No. 1. Respondent No. 1 has violated the terms and conditions of the policy. Therefore, he is not liable to pay any compensation. 4. On the basis of the pleadings, the Tribunal framed issues. Claimant was examined as P.W. 1, also got examined one witness as P.W. 2 and got marked 57 documents as Ex. P-1 to P-57 in support of his claim. The respondent No. 2 has not produced oral or documentary evidence. The learned Member of the Tribunal after hearing both the parties passed the impugned judgment, awarding a compensation of Rs. 1,61,811/- with interest at 6% per annum from the date of petition till realization. 5. P-1 to P-57 in support of his claim. The respondent No. 2 has not produced oral or documentary evidence. The learned Member of the Tribunal after hearing both the parties passed the impugned judgment, awarding a compensation of Rs. 1,61,811/- with interest at 6% per annum from the date of petition till realization. 5. Heard the learned counsel for both the parities. The following point arises for consideration before this Court; Whether the appellant/claimant has made out grounds for enhancement of the compensation? 6. The learned counsel for the appellant/claimant submitted that there is amputation of left leg of the petitioner below the knee which amounts to 50% of the physical disability as per the item No. 20 in the schedule to Workmen's Compensation Act and that the Tribunal has erroneously considered the disability of the petitioner at 5% of the whole body. The learned counsel further submitted that the Tribunal ought to have applied multiplier of 16 instead of 15 and further submitted that the compensation towards artificial limb is also not awarded by the Tribunal. Hence seeks for enhancement of compensation. 7. Per contra, learned counsel for respondent No. 2 supports the impugned judgment and award, however the learned counsel fairly submitted that in view of the amputation below the knee the disability may be taken at 30% of the whole body in awarding compensation towards loss of future income. 8. The appellant/claimant has stated that he was aged about 35 years doing leather business and earning Rs. 25,000/- per month. However, he has not produced any positive evidence to prove his income. Therefore, the Tribunal has assessed the notional income at Rs. 6,000/- per month, which appears to be proper. It is not disputed that where the amputation is below the knee, in view of item No. 20 in the schedule to Workmen's Compensation Act, the disability should be taken as 50%. Therefore, in the present case the Tribunal has erred in considering the disability of the petitioner at 5% to the whole body which needs to be enhanced to 50% to the whole body for the purpose of assessing loss of future income, so also the proper multiplier applicable is 16 in view of the age of the petitioner is 35 years. Thus the petitioner is entitled for loss of future income due to 50% disability is as follows; The monthly income of the petitioner Rs. Thus the petitioner is entitled for loss of future income due to 50% disability is as follows; The monthly income of the petitioner Rs. 6,000/- x 12 x 16 x 50% = Rs. 5,76,000/-. 9. The Tribunal has awarded compensation of Rs. 25,000/- towards pain and suffering. The petitioner had sustained crush injury on his left foot which ultimately resulted in amputation below the knee. Under these circumstances in view of the decision laid down in the case of Sanjay Kumar V/s. Ashok Kumar and another reported in [2014 Kant. M.A.C. 350 (SC)], a sum of Rs. 1,00,000/- is awarded towards pain and suffering. Rs. 64,811/- is awarded towards medical expenses is retained. Rs. 25,000/- is awarded towards special diet and attendant charges. The compensation towards loss of income during the period of treatment for four month Rs. 24,000/- is awarded. In view of the decision in the case of Ankur Kapoor V/s. Oriental Insurance Co. Ltd., reported in 2017 (4) T.A.C. 940 (SC) a sum of Rs. 1,00,000/- is awarded towards loss of amenities and unhappiness. 10. The learned counsel for the appellant submits that in view of the amputation of left leg of the petitioner below the knee, he is required to obtain artificial limb and some amount of compensation may be awarded towards purchase of an artificial limb. The learned counsel for the Respondent No. 2 submits that the claimant has neither claimed compensation on this ground nor has produced any documents showing the cost of artificial limb. Considering the fact that there is amputation of left leg of the petitioner below the knee, he is required to take artificial limb. Therefore, a sum of Rs. 50,000/- is awarded towards purchase of artificial limb. Thus, the appellant/claimant is entitled for total compensation of Rs. 9,39,811/- as against the compensation awarded by the Tribunal at Rs. 1,61,811/- Therefore the claimant is entitled for just compensation on reassessment of evidence on record. 11. Thus the compensation is enhanced to Rs. 7,78,000/-. Accordingly the judgment and award needs to be modified. In the result I proceed to pass the following: ORDER The appeal is allowed in part. The appellants/claimants are awarded enhanced compensation of Rs. 7,78,000/- together with interest at 6% p.a. from the date of petition till its realization. The respondent is directed to deposit the enhanced compensation amount within eight weeks from today before the concerned Tribunal. In the result I proceed to pass the following: ORDER The appeal is allowed in part. The appellants/claimants are awarded enhanced compensation of Rs. 7,78,000/- together with interest at 6% p.a. from the date of petition till its realization. The respondent is directed to deposit the enhanced compensation amount within eight weeks from today before the concerned Tribunal. Out of the enhanced compensation awarded a sum of Rs. 6,00,000/- shall be deposited in Fixed deposit in the name of petitioner in any nationalised bank of his choice initially for a period of five years. Remaining amount shall be released to the claimant.