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2020 DIGILAW 1037 (KAR)

Mahantesh @ Mahantayya v. Mailar Hosur

2020-06-10

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The appellant/claimant is before this Court not being satisfied with the compensation awarded by the Senior Civil Judge And Member, Motor Accident Claims Tribunal Gangavathi (hereinafter referred to as "the Tribunal" for short) under judgment and award dated 08.01.2018 in MVC No. 488/2016 and praying for enhancement of compensation. 2. Though this appeal is listed for admission, with the consent of the learned counsel for parties, heard finally and disposed of by this order. 3. The brief facts which are necessary for disposal of the appeal are as under: In the claim petition, it is contended that on 08.03.2015 at about 1.40 p.m., one Hanumesh Naik, Pandappa and Mahantesh were traveling on motorcycle bearing No.KA-37/L-4137 and they met with an accident near the land of one Umlooti Mariswamy, situated at Sindhanoor-Kustagi Road on account of rash and negligent driving of the driver of Bolero Champ Jeep bearing No.KA-25/MA-1451 due to which Hanumesh Naik and Pandappa sustained grievous head injury and died on the spot and one Mahantesh sustained grievous injuries and was shifted to Government Hospital, Tavaragera and for better treatment was shifted to Dr. Mahantesh Akki Hospital, Ilkal. It is contended that the claimant was working as a supervisor with a private contractor and was earning Rs.20,000/- per month and due to the injuries sustained by him in the accident, he is disable to do and hence, sought for compensation of Rs.25,00,000/-. On issuance of notice, respondent No.2 did not appear before the Tribunal and remained absent. Respondent No.1/owner of the offending vehicle and respondent No.3/insurance company appeared before the Tribunal through their respective counsel. Respondent No.3/insurance company filed its statement of objections contending that the accident did not occur on account of any negligence on the part of the driver of Jeep but it was occurred on account of negligent riding of the motorcycle by its rider himself. They also disputed the age and income of the injured claimant. They further contended that the rider of the motorcycle has contributed for the accident since there were three persons traveling on the motorcycle. Hence, the claim petition needs to be dismissed. They further contended that the claim petition needs to be dismissed on account of non-joinder of necessary parties. 4. They further contended that the rider of the motorcycle has contributed for the accident since there were three persons traveling on the motorcycle. Hence, the claim petition needs to be dismissed. They further contended that the claim petition needs to be dismissed on account of non-joinder of necessary parties. 4. In order to substantiate the averments made in the claim petition, the claimant in this case got examined as P.W.1, the 1st claimant in MVC No.167/2016 got examined as P.W.2 and the petitioner in MVC No. 488/2016 got examined himself as P.W.3 and the doctor, who treated the injured in MVC No.488/2016 got examined as P.W.4 and the claimants relied on 41 documents which were marked before the Tribunal vide Exs.P.1 to 41. On behalf of the insurance company, nobody was examined orally, but they produced the insurance policy before the Tribunal, which was marked as Ex.R.1. 5. After hearing the parties, the Tribunal awarded the compensation to the claimant as under:- Sl. No. HEAD Amount awarded by the Tribunal (in Rs.) 1 Loss of future income 85,680/- 2 Pain and sufferings 10,000/- 3 Loss of amenities in life 10,000/- 4 Loss of earning during treatment 18,000/- 5 Diet, Nourishment, Attendants charges and conveyance 10,000/- 6 Medical reimbursement 18,611/- Total 1,52,291/- 6. It is the argument of the learned counsel for the appellant/claimant that the amount of compensation awarded by the Tribunal is too low. It is contended that the petitioner was working as a supervisor with a private contractor and was also doing field work through which he used to earn Rs.20,000/- per month and due to the accident, the claimant is disabled and is not in a position to work as before but the Tribunal without considering the same has erroneously assessed the income of the claimant at Rs.6,000/- per month and thus, sought for enhancement of the compensation under the head of loss of future earnings. The claimant in this case sustained fractures to hip joint, left clavicle, left wrist and other injuries and was operated. It is contended that the claimant was admitted as an inpatient for a period of one month and he spent Rs.1,50,000/- towards his medical expenses but the tribunal without considering the said aspect has awarded a meager compensation towards medical expenses. It is contended that the claimant was admitted as an inpatient for a period of one month and he spent Rs.1,50,000/- towards his medical expenses but the tribunal without considering the said aspect has awarded a meager compensation towards medical expenses. He further contended that due to the said accident, he suffered injuries and pain and spent amount towards his treatment and nourishment, but the Tribunal has not awarded any sum towards nourishment, diet etc., and hence, prayed for enhancement of compensation. 7. Per contra, it is the argument of the learned counsel for the respondent No.3/insurance company that the Tribunal has rightly awarded the compensation in the absence of any cogent evidence placed by the claimant and submitted that the appeal needs to be dismissed. 8. In view of the rival contentions, the points that would arise for our consideration are as under:- i) Whether the appellant/claimant has made out a case for enhancement of compensation? 9. We answer the above point in the affirmative for the following:- REASONS 10. It is the specific contention of the learned counsel for the appellant/claimant that the Tribunal has erred in law in assessing the monthly income of the claimant at Rs.6,000/- per month. He contended that the claimant was working as a supervisor with a private contractor and was also doing field work through which he used to earn Rs.20,000/- per month and due to the accident, the claimant is disabled and is not in a position to work as before but the Tribunal without considering the same has erroneously assessed the income of the claimant at Rs.6,000/- per month and therefore sought for enhancement. 11. On record there was no appreciable evidence placed by the claimant and as such, the Tribunal assessed the monthly income at Rs.6,000/- notionally. However, this Court and the Lok-Adalaths have assessed the monthly income of Rs.8,000/- per month notionally for accident claims of the year 2015, wherever there is no proof of income. 12. Hence, we deem it fit to assess the monthly income at Rs.8,000/- in the present case also. However, this Court and the Lok-Adalaths have assessed the monthly income of Rs.8,000/- per month notionally for accident claims of the year 2015, wherever there is no proof of income. 12. Hence, we deem it fit to assess the monthly income at Rs.8,000/- in the present case also. In order to prove the disability, the claimant got examined the P.W.3/medical officer, who treated him and P.W.4 in his evidence opined 40% disability to particular part and assessed disability at 20% to the whole body but the Tribunal has assessed the disability @ 7% to the whole body, which appears to be incorrect and looking to the nature of injury, disability certificate (Ex.P.39) and evidence of P.W.3/doctor, we take the same @ 13% to the whole body. Accordingly, the claimant would be entitled to Rs.2,12,160/- (Rs.8000 x 12 x 13% x 17 = 2,12,160/-). 13. The Tribunal has awarded a sum of Rs.18,000/- towards loss of income during the period of treatment. In view of taking notional income at Rs.8,000/- the claimant would be entitled to enhancement in a sum of Rs.6000/-. 14. The Tribunal has awarded Rs.10,000/- towards pain and sufferings and Rs.10,000/- towards loss of amenities and Rs.10,000/- towards nourishment, attendant charges etc., 15. Considering the injuries sustained by the claimant and treatment taken, we are of the opinion that the claimant is entitled to another sum of Rs.10,000/- towards pain and sufferings, another sum of Rs.10,000/- towards loss of amenities and another sum of Rs.5,000/- towards nourishment, attendant charges etc. 16. The Tribunal, considering the medical documents produced by the claimant, has awarded a sum of Rs.18,611/- towards medical expenses, in our opinion, needs no interference. Accordingly the above point is answered in the affirmative and we proceed to pass the following:- ORDER The appeal is allowed in part. Consequently, the judgment and award passed by the Tribunal in MVC No.488/2016 is modified and the claimant is entitled for the total compensation of Rs.3,09,771/- as against Rs.1,52,291/- awarded by the Tribunal. The enhanced compensation of Rs.1,57,480/- shall carry interest @ 6% per annum from the date of petition till realization. The respondent/insurance company shall deposit the enhanced compensation with interest before the jurisdictional Tribunal, within a period of six weeks from the date of receipt of certified copy of this order. Draw the modified award accordingly.