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2020 DIGILAW 1297 (KAR)

Iqbal Sayyad Ambi v. Sunil Nimbaji Khandekar

2020-07-01

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The injured claimant is before this court in this appeal praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under judgment and award dated 01.10.2014, passed by the Additional Senior Civil Judge and Additional MACT, Athani in MVC No.2602/2012. 2. The claim petition was filed under Section 166 of M.V. Act claiming compensation for the injury sustained by the claimant in a road traffic accident involving truck bearing No.KA-23/A-918 on 23.09.2012. 3. The accident occurred involving to the above vehicle, the accidental injuries sustained by the claimant is not in dispute in this appeal. 4. The tribunal on consideration of the material placed on record by both claimants as well as the Insurance company awarded compensation of Rs.8,12,346/- with interest @ 6% p.m. from the date of petition till realization under the following heads: 1 Pain and suffering 50,000/- 2 Food and Nourishment 5,000/- 3 Attendant charges 2,000/- 4 Traveling expenses 3,000/- 5 Medical expenses 63,246/- 6 Future medical expenses Nil 6 For artificial limb 1,00,000/- 7 Loss of future income due 5,34,600/- to disability 8 Permanent disability 25,000/- 9 Loss of income for one month including during laid off period 4500/- 10 Loss of amenities of life not inclusive of marriage prospects 25,000/- TOTAL 8,12,346/- 5. While awarding the above compensation, the tribunal assessed the income of the claimant at Rs.4,500/- per month and added 50% towards future loss of income. Further the tribunal assessed the disability at 60% taking the multiplier at 11. The injured claimant not being satisfied with the quantum of compensation, is before this court in this appeal and prayed for enhancement of the compensation. 6. Heard the learned counsel for the appellantinjured claimant and respondent-Insurance company. Perused the lower court records. 7. The learned counsel for the appellant would submit that the tribunal committed an error in assessing the monthly income of the injured at Rs.4,500/- per month. It is his submission that the injured claimant was owner of the lorry and to demonstrate the same, R.C. book was placed on record as Ex.P79. As such, the tribunal taking note of the oral evidence of PW1 as well as Ex.P79 ought to have assessed the monthly income of the injured claimant on the higher side. 8. It is his submission that the injured claimant was owner of the lorry and to demonstrate the same, R.C. book was placed on record as Ex.P79. As such, the tribunal taking note of the oral evidence of PW1 as well as Ex.P79 ought to have assessed the monthly income of the injured claimant on the higher side. 8. Further, the learned counsel submits that injured claimant has sustained amputation of left leg below knee and the disability assessed by the tribunal at 60% is on the lower side. Taking note of PW2 doctor's evidence and medical evidence placed before the tribunal, it is his submission that the disability of the injured is to be assessed at 100% taking note of his amputation. He was inpatient for 18 days and the compensation awarded on the other heads are also on the lower side. 9. The learned counsel submits that the compensation awarded particularly on the head of pain and suffering at Rs.50,000/- is on the lower side, since he has undergone amputation below knee, whereby he has suffered mental agony and pain and suffering. Thus, he prays for enhancement of the compensation. 10. Per contra, the learned counsel for the respondent-Insurance company would submit that the compensation awarded by the tribunal is just compensation, which needs no interference. 11. He further submits that the injured claimant has not placed on record any material to establish his income. Further, it is his submission that the appellantclaimant has not suffered any functional disability. He was the owner of the lorry as could be seen from Ex.P79, but he has not placed on record any documents to indicate the volume of lorry business, which he was having. In the absence of such material, the tribunal has assessed the income notionally at Rs.4,500/- per month, which needs no interference. 12. The learned counsel also submits that PW2- doctor examined on behalf of the injured claimant has deposed that the injured claimant has suffered 60% disability in view of amputation below knee. The tribunal assessed and has taken at 60% disability, which is proper. Further, it is his submission that the compensation awarded on the other heads when compared to the injury sustained by the claimant is on the higher side and prays for dismissal of the appeal. 13. The tribunal assessed and has taken at 60% disability, which is proper. Further, it is his submission that the compensation awarded on the other heads when compared to the injury sustained by the claimant is on the higher side and prays for dismissal of the appeal. 13. Having heard the learned counsels for the parties and on consideration of the rival contentions, the following points would arise for consideration. 1. Whether the income assessed by the tribunal at Rs.4,500/- per month of the injured claimant is proper and correct? 2. Whether the tribunal is justified in assessing the disability to the whole body at 60% is proper ? 3. Whether the injured claimant would be entitled for enhancement of compensation? 14. Answer to the above point No.1 in the negative and point Nos.2 and 3 are in the affirmative for the following reasons : 15. The accident is of the year 2012. The injured claimant was aged 55 years as on the date of accident. The accident involving truck bearing No.KA-23/A-918 and the accidental injury sustained by the appellant-injured claimant is not in dispute in this appeal. The claimants states that he was the owner of the lorry and to establish that he was the owner of the lorry Ex.P79 notarized copy of R.C. book is placed on record. But, no documents are placed on record to indicate the income earned by him from the said lorry. 16. Further, he has also not placed on record any material to show that he has suffered functional disability. It is not his case that he was driving the lorry, nor he has placed on record the driving licence. Under such circumstances, the income has to be assessed notionally. The notional income assessed by the tribunal at Rs.4,500/- per month is on the lower side. Taking note of price Index and other material, this court and the Lok Adalath while settling the accident claims of the year 2012 would normally take the notional income at Rs.6,500/- per month. In the instant case, the notional income of the injured claimant could be taken at Rs.6,750/- per month in the absence of any material to indicate the income of the injured claimant. The tribunal committed an error in awarding future loss of income at 50%, when it has awarded the compensation on the head of future loss of income due to disability. 17. The tribunal committed an error in awarding future loss of income at 50%, when it has awarded the compensation on the head of future loss of income due to disability. 17. The claimant-appellant has sustained amputation of left leg below knee. In support of the injured claimant's case, PW2 doctor is examined and in his deposition he states that the claimant has suffered at 60% permanent physical disability. The tribunal taking note of the doctor's evidence and the amputation below knee suffered by the claimant, has taken permanent physical disability at 60%, which on reappreciation of the material on record, we find that the assessment is proper and correct, which needs no interference. 18. The appellant-injured claimant was inpatient for 18 days, as stated above he has suffered amputation of left leg below knee. Taking note of the same, we are of the view that the injured claimant would be entitled for another sum of Rs.25,000/- towards pain and suffering and another sum of Rs.25,000/- towards loss of amenities of life. Due to injury sustained the claimant would have been out of employment for nearly 3 months, thus, he would be entitled for loss of income during 3 months @ Rs.6,750/- per month. The compensation awarded by the tribunal on the head of food and nourishment, attendant charges, traveling expenses are on the lower side when compare to the treatment taken by the injured as inpatient. Hence, we award a sum of Rs.5,000/- in addition to Rs.5000/- awarded by the tribunal on the head of food and nourishment, a sum of Rs.8,000/- in addition to Rs.2,000/- awarded by the tribunal on the head of attendant charges, a sum of Rs.7,000/- in addition to Rs.3,000/- awarded by the tribunal on the head of Traveling expenses. Thus, the injured claimant would be entitled for the following modified compensation as below: 1 Pain and suffering 75,000/- 2 Food and Nourishment 10,000/- 3 Attendant charges 10,000/- 4 Traveling expenses 10,000/- 5 Medical expenses 63,246/- 6 For artificial limb 1,00,000/- 7 Loss of future income due to disability 5,34,600/- 8 Permanent disability 25,000/- 9 Loss of income for 3 months(6750x3) 20,250/- 10 Loss of amenities of life 50,000/- TOTAL 8,98,096/- 19. The claimant would be entitled for total compensation of Rs.8,98,096/- as against Rs.8,12,346/- awarded by the tribunal with interest at the rate of 6% p.a. from the date of petition till realization. The claimant would be entitled for total compensation of Rs.8,98,096/- as against Rs.8,12,346/- awarded by the tribunal with interest at the rate of 6% p.a. from the date of petition till realization. Appeal is allowed in part. The respondent Insurance company is directed to deposit the compensation awarded by this Court with up to date interest within a period of six weeks from the date of receipt of copy of this order. The registry is directed to draw the modified award accordingly.