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2020 DIGILAW 1283 (KAR)

Suresh v. Anil B Patil

2020-06-30

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The claimant-injured is before this Court in this appeal praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under the judgment and award dated 16.02.2015 in M.V.C. No.2666/2013 on the file of the Principal Senior Civil Judge and Member Additional Motor Accident Claims Tribunal, Belgaum (for short 'the Tribunal'). 2. The claim petition was filed under Section 166 of M.V. Act seeking compensation for the accidental injuries sustained in a road traffic accident involving motorcycle bearing No.KA-23/J-633 and a tractor-trailer bearing No.MH-09/AL- 9788. The accident involving the above two vehicles and the accidental injuries sustained by the claimant-appellant is not in dispute in this appeal. The claimant states that he was doing agricultural work and also running a flour mill and earning and Rs.1,00,000/- p.a. and Rs.15,000/- per month respectivley. He was aged about 60 years as on the date of accident. The tribunal on the material made available before it, awarded total compensation of Rs.1,20,800/- with interest at the rate of 6% p.a. from the date of filing of the petition till its realization by respondent No.2, on the following heads: 1. Medical & other incidentalexpenses Rs.40,000/- 2. Pain and suffering Rs.5,000/- 3. Future loss of earning capacity due to disability Rs.64,800/- 4. Loss of income during laid up period Rs.6,000/- 5. Loss of amenities in life Rs.5,000/- TOTAL Rs.1,20,800/- 3. While awarding the above compensation, the tribunal assessed the monthly income of the injured-appellant at Rs.6,000/- per month and assessed the body disability at 10%. Not being satisfied with the same, the appellant is before this Court praying for enhancement of compensation. 4. Heard the learned counsel for the appellant through Video Conference and the learned counsel for the respondent Insurance Company in person. Perused the trial Court records. 5. Learned counsel for the appellant submits that the income of the injured assessed by the Tribunal at Rs.6,000/- per month is on the lower side and prays for enhancement of income. He further submits that the injured was running flour mill and thereby earning Rs.15,000/- per month, apart from earning Rs.1,00,000/- p.a. from agricultural work. He submits that the Tribunal failed to consider the evidence of PW1 and also Exs.P7 and P18 Record of Rights and Ex.P14 electricity bills, which were placed on record to show that he was running flour mill. He submits that the Tribunal failed to consider the evidence of PW1 and also Exs.P7 and P18 Record of Rights and Ex.P14 electricity bills, which were placed on record to show that he was running flour mill. Further, the learned counsel submits that the claimant examined PW2, the Doctor in support of his case. He deposed that the claimant suffered 40% injuries to a particular limb, whereas, the tribunal has failed to assess the whole body disability properly. The assessment of whole body disability by the tribunal at 10% is on the lower side. Thus, he prays for enhancement of percentage of whole body disability. It is submitted that the claimant has suffered closed fracture of upper end of left tibia/lateral condoyle of tibia, fracture of neck of fibula. The claimant was inpatient for seven days and the compensation awarded by the Tribunal on the head pain and suffering and on the other heads when compared to the injuries sustained and also the treatment taken, are on the lower side. It is his submission that the claimant-injured suffered permanent physical disability, hence, the compensation awarded by the tribunal on the head loss of income during laid up period also needs to be enhanced. Thus, he prays for allowing the appeal. 6. Per contra, the learned counsel for the respondent No.2 Insurance Company submits that the compensation awarded by the tribunal is just and correct, which needs no interference. Further, he submits that the income of the claimant assessed by the tribunal at Rs.6,000/- per month is proper in the absence of any material to establish the same. He further submits that Exs.P14, P17 and 18 would not indicate the income of the injured. But, it would only show that the injured claimant was possessing landed property. Further, the learned counsel submits that the whole body disability assessed by the tribunal at 10% is proper on the basis of the injuries sustained by the claimant-appellant. Thus, he prays for dismissal of the appeal. 7. Having heard the learned counsel for the parties and on perusal of the materials on record including the trial Court records, the following points would arise for our consideration: (i) Whether the income and the disability assessed by the tribunal is proper and correct? (ii) Whether the claimant would be entitled for enhancement of compensation? 7. Having heard the learned counsel for the parties and on perusal of the materials on record including the trial Court records, the following points would arise for our consideration: (i) Whether the income and the disability assessed by the tribunal is proper and correct? (ii) Whether the claimant would be entitled for enhancement of compensation? We answer the above points in the negative and affirmative respectively for the following reasons: 8. The accident is of the year 2013. The accident involving motorcycle bearing No.KA-23/J-633 and tractor-trailer bearing No.MH-09/AL-9788 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The notional income assessed by the tribunal at Rs.6,000/- per month of the claimant-injured is on the lower side. The claimant-injured states that he was running flour mill and earning Rs.15,000/- per month and also earning Rs.1,00,000/- p.a. from agricultural work. He has produced only Exs.P14, P17 and P18, the record of rights in respect of the landed properties, but he has not produced any material on record showing the license of the flour mill said to have been run by the appellant7 claimant. Record of Rights would not indicate the income of the claimant. Thus, the Tribunal is justified in assessing the notional income of the claimant. However, the notional income assessed by the Tribunal at Rs.6,000/- per month is on the lower side. This Court and Lok Adalats while settling the accidental claims of the year 2013, normally would assess the notional income at Rs.7,000/- per month. In that circumstance, we deem it proper to assess the notional income of the claimant at Rs.7,000/- per month. 9. The claimant has sustained closed fracture of upper end of left tibia/lateral condyle of tibia, fracture of neck of fibula and he was inpatient for a period of 7 days. Ex.P11 is Discharge Card. PW2 is a doctor who treated the claimant and issued Ex.P8-Disability Certificate. As per Ex.P6-Wound Certificate and evidence of PW2-doctor, the claimant has suffered 40% disability to the left lower limb. The claimant has not stated as to how injury would come in the way of his day to day activities of running his flour mill and also carrying on agricultural activities. As per Ex.P6-Wound Certificate and evidence of PW2-doctor, the claimant has suffered 40% disability to the left lower limb. The claimant has not stated as to how injury would come in the way of his day to day activities of running his flour mill and also carrying on agricultural activities. It is well settled law that 1/3rd of disability of a particular limb of the body would be assessed as whole body disability while calculating the loss of earning capacity of the victim of the accident. PW2-doctor has stated that the claimant has suffered 40% disability to the left lower limb. If the same is taken at 1/3rd,whole body disability of the claimant would be 13%. Thus, the disability of the claimant assessed at 10% by the Tribunal is revised to 13%. The compensation awarded on the head pain and suffering and loss of amenities in life are on the lower side when compared to the injuries suffered and the treatment taken by the claimant. Hence, the claimant would be entitled for another sum of Rs.25,000/- each on the head pain and suffering and loss of amenities in life. The Tribunal awarded compensation of Rs.40,000/- on the head medical and other incidental expenses. It is stated that the claimant has undergone 2nd operation, hence, we are inclined to award another sum of Rs.10,000/- on the said head. Looking into the injuries suffered by the claimant, he would have been out of employment for a period of three months. Hence, he would be entitled for a sum of Rs.21,000/- on the head loss of income during the laid up period. Thus, the claimant would be entitled for modified compensation as under: Medical and other incidental expenses Rs.50,000/- Pain and suffering Rs.30,000/- Loss of amenities in life Rs.30,000/- Loss of income during the laid up period for three months Rs.21,000/- Loss of earning capacity due to disability Rs.98,280/- (Rs.7,000 x 12 x 9 x 13/100) Total Rs.2,29,280/- 10. In all, the claimant would be entitled for total compensation of Rs.2,29,280/- as against Rs.1,20,800/- awarded by the Tribunal with interest at 6% per annum from the date of petition till date of payment. 11. In the result, we proceed to pass the following: ORDER a) The appeal filed by the claimant is allowed in part. In all, the claimant would be entitled for total compensation of Rs.2,29,280/- as against Rs.1,20,800/- awarded by the Tribunal with interest at 6% per annum from the date of petition till date of payment. 11. In the result, we proceed to pass the following: ORDER a) The appeal filed by the claimant is allowed in part. b) The judgment and award passed by the Tribunal is modified by awarding total compensation of Rs.2,29,280/- as against Rs.1,20,800/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till date of payment. c) Respondent No.2-Insurance Company is directed to deposit the enhanced compensation along with accrued interest within a period of six weeks from the date of receipt of certified copy of this judgment. d) The enhanced compensation amount shall be released in favour of the claimant immediately on deposit made by the insurance company on proper identification. e) Draw the modified award accordingly.