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2020 DIGILAW 1338 (KAR)

Gouravva v. Irappa Yamanappa Jinarali

2020-07-06

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The claimant in MVC No.212/2017 is questioning the validity of the judgment and award dated 19th March 2019, passed by the I-Addl. District Judge and MACT-II, Belagavi, in this appeal. 2. The brief facts, which are necessary for disposal of this appeal are as under: The claim petition came to be filed under Section 166 of the Motor Vehicles Act, alleging that on 11.06.2016, when the claimant and her son-in-law were returning towards Gokak Falls on motorcycle bearing No.KA23/W-6461, due to rash and negligent riding of motorcycle by the rider, the motorcycle fell down on the road hump, resulting in the accident and there by the claimant sustained grievous injuries on her head and on other parts of his body. Immediately she was shifted to Nimra Hospital, Gokak and then Lakeview Hospital at Belagavi. It is her case that she sustained permanent physical disability and thus sought for awarding suitable compensation. 3. On service of notice, both respondents appeared through their respective counsel and filed their respective objections denying the petition averments. However, respondent No.1 contended that his motorcycle was duly insured with respondent No.2 Insurance Company and also having valid driving licence as on the date of accident. Therefore, the liability, if any, should be saddled on the Insurance Company. 4. In the written statement filed by the Insurance Company, it is specifically denied that the motorcycle in question was not at all involved in the accident and the rider of the motorcycle was not having valid driving licence as on the date of accident. Hence, sought for dismissal of the petition. 5. Based on the rival contentions, the tribunal raised the following issues: 1) Whether petitioner proves that the accident in question was caused due to rash and negligent riding of motorcycle bearing No.KA-23/W-6461 by its rider and due to the said accident, petitioner has sustained grievous injuries? 2) Whether the petitioner is entitled for compensation? If so, for what amount and from whom? 3) What order or award? 6. In order to prove the claim petition averments, the son of the son of the petitioner was examined as PW1 and got marked 26 documents as Exs.P1 to P26. On behalf of the respondent, Officer of the Insurance Company was examined as RW1 and got marked two documents as Exs.R1 and R2. 7. 3) What order or award? 6. In order to prove the claim petition averments, the son of the son of the petitioner was examined as PW1 and got marked 26 documents as Exs.P1 to P26. On behalf of the respondent, Officer of the Insurance Company was examined as RW1 and got marked two documents as Exs.R1 and R2. 7. Based on the available evidence on record, the tribunal allowed the claim petition and awarded compensation to the claimant in a sum of Rs.15,43,867/- with interest at 9% p.a. from the date of the petition till payment of entire amount within 30 days from the date of award by answering the issues. It is that judgment and award, which is under challenge by the claimant in this appeal. 8. Learned counsel for the appellant-claimant vehemently contended that the tribunal erred in assessing the monthly income of the injured. It is her case that the tribunal did not consider that the injured had suffered disability and is unable to carry on day to day work. He further argued that the tribunal has not properly assessed the compensation towards medical expenses and on other heads. He further pointed out that the Tribunal has wrongly adopted the multiplier of 7' instead of applying multiplier 13' in view of the legal principles laid down in the case of Sarala Verma (Smt) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 . Hence, he sought for allowing the appeal by enhancing the compensation. 9. Per contra, the learned counsel for the respondents No.2, Insurance Company contended that the judgment and award passed by the tribunal is erroneous and the compensation awarded by the tribunal is just and proper. Hence, he sought for dismissal of the appeal. 10. Having heard the learned counsel appearing for the parties and on perusal of the records, the following points would arise for our consideration: (i) Whether the monthly income of the claimant assessed by the tribunal is proper and correct? (ii) Whether the claimant is made out a case of enhancement of compensation? (iii) Whether the tribunal was right in applying the multiplier of 11 while assessing the compensation towards loss due to physical disability? We answer point Nos. 1 and 3 in the negative and point No.2 in the affirmative for the following: REASON 11. (ii) Whether the claimant is made out a case of enhancement of compensation? (iii) Whether the tribunal was right in applying the multiplier of 11 while assessing the compensation towards loss due to physical disability? We answer point Nos. 1 and 3 in the negative and point No.2 in the affirmative for the following: REASON 11. Admittedly on record, there is no material to show that what was the avocation the injured had in the claim petition, she has stated that she was a coolie and was earning Rs.15,000/- per month and aged about 49 years as on the date of accident. In the present case, the tribunal has assessed the monthly of the claimant at Rs.6,000/- notionally. The accident has occurred in the year 2016. This Court and the Lok Adalath for the accidental claims of the year 2016 consistently assessed the monthly income of unskilled labourers at Rs.8,500/- notionally, where there is no formal proof of monthly income. Hence, we propose to reassess the monthly income at Rs.8,500/- notionally in the present case also to award compensation towards 'loss of future income'. 12. Further, PW2, the Doctor, who examined the injured has issued Ex.P23, disability certificate, in his opinion, the injured has suffered disability to an extent of 52% to 55% to the whole body. The tribunal taking into consideration the judgment of the Hon'ble Apex Court in the case of Raj Kumar vs. Ajay Kumar and another, (2011) ACJ 1 (SC) has taken 55% disability into consideration, while adjudging the compensation on the head of 'loss of income due to physical disability'. Normally this Court would interfere with such a finding as there is no material on record as to why the tribunal has taken into consideration the entire disability factor as is found in Ex.P23. But in the absence of any appeal filed by the Insurance Company, we do not want to interfere with the said finding 13. Accordingly, the claimant is entitled to a compensation towards 'loss due to physical disability' would be Rs.7,50,750/- (Rs.8,750/- x 12 x 13 x 55%). 14. But in the absence of any appeal filed by the Insurance Company, we do not want to interfere with the said finding 13. Accordingly, the claimant is entitled to a compensation towards 'loss due to physical disability' would be Rs.7,50,750/- (Rs.8,750/- x 12 x 13 x 55%). 14. In view of the fact that we have assessed the monthly income of the claimant at Rs.8,750/- notionally, having regard to the injuries sustained by the injured, we deem it appropriate to award compensation towards 'loss of income during laid up period at Rs.52,500/- (Rs.8,750/- x 6) instead of Rs.36,000/- awarded by the tribunal. The compensation awarded by the tribunal on the other heads, we do not find any good reason to interfere with the judgment and award passed by the tribunal. 15. In view of the foregoing discussions, the claimant would be entitled to the following modified compensation. Pain and suffering Rs.50,000/- Medical Expenses Rs.9,72,267/- Loss due to physical disability Rs.7,50,750/- Loss of income during laid up period Rs.52,500/- Attendant charges, food and nutrition and loss of comforts and amenities in life Rs.50,000/- TOTAL Rs.18,75,517/- 16. Thus, the claimants would be entitled for total compensation of Rs.18,75,517/- as against Rs.15,43,867/- awarded by the Tribunal with interest at 9% per annum from the date of petition till the date of realization. Accordingly, we proceed to pass the following: ORDER (i) The appeal is allowed in part. (ii) The judgment and award of the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.18,75,517/- as against Rs.15,43,867/- awarded by the Tribunal with interest at the rate of 9% per annum from the date of petition till realization. (iii) The respondent, Insurance Company is directed to deposit the entire compensation amount before the tribunal within six weeks from the date of receipt of a copy of this order. (iv) The Registry is directed to transmit the amount in deposit, if any, to the tribunal for disbursement forthwith. (v) The apportionment, deposit and disbursement shall be as ordered by the tribunal in the same proportion. (vi) Draw the modified award accordingly.