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2020 DIGILAW 1378 (KAR)

T. Satyanarayana v. Shankrayya

2020-07-09

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - The injured-claimant is in appeal being not satisfied with the judgment and award dated 15.09.2016, passed in MVC No.414/2015 on the file of the Senior Civil Judge & MACT, Gagavathi (for short 'the tribunal'). 2. The brief facts, which are necessary for disposal of this appeal are as under: A claim petition came to be filed under Section 166 of M.V. Act, alleging that on 05.02.2015, at about 10:30 a.m. when the claimant was standing by the side of Gangvathi- Sindhanur main road, near Pragathinagar, in front of Shivaramakrishna Petrol Bunk to fill petrol to his vehicle. At that time, a Tempo Trax Toofan vehicle bearing No.KA-37/A- 5343 came from Gangavathi side in a rash and negligent manner and dashed to the vehicle of the claimant and caused accident. Due to the said impact, the claimant/appellant sustained grievous injuries. After the accident, the claimant/appellant was shifted to Dr.Mallanagouda Hospital, Gangavathi for treatment. The brother of the claimant lodged the complaint before the Gangavathi Rural Police Station. On the basis of the complaint, the Gangavathi Rural Police have registered the case, investigated the matter and filed the charge sheet against respondent No.1. It is further contended that the claimant was an agriculturist and also indulged in milk vending business and was earning Rs.36,000/- per month and due to the accident, he lost his earning capacity and sought for grant of suitable compensation. 3. On issuance of notice, respondent Nos.1 to 3 appeared before the tribunal and contested the matter. Respondent Nos.1 and 2 denied the petition averments in toto. They also contended that no accident has occurred as is alleged by the claimant. If the driver of the vehicle is responsible for the accident, since the vehicle is insured, the Insurance Company be saddled with the liability. Whereas the Insurance Company also denied the petition averments and denied that the driver of the offending vehicle was not negligent. They also contended that the terms of the policy was violated and sought for dismissal of the petition. 4. Based on the rival contentions, the tribunal raised the following issues: 1. Whereas the Insurance Company also denied the petition averments and denied that the driver of the offending vehicle was not negligent. They also contended that the terms of the policy was violated and sought for dismissal of the petition. 4. Based on the rival contentions, the tribunal raised the following issues: 1. Whether the petitioner proves that he sustained grievous injuries in road traffic accident occurred on 05.02.2015 at about 10:30 a.m. on Gangavathi- Sindhanur main road, near Shivaramkrishna Petrol Bunk, when the petitioner was standing by the side of road, at that time, the tempo trax of respondent No.1 bearing No.KA-37/A-5343 came from opposite direction in high speed in rash and negligent manner and dashed to the petitioner and caused accident? 2. Whether respondent No.3 proves that the respondent No.3 is not liable to pay compensation as respondent No.2 violated terms and conditions of the insurance policy? 3. Whether petitioner is entitled for compensation? 4. What order or award? 5. In order to prove the case, the claimant-injured got himself examined as PW1 and also got examined PW2 to PW4 and got marked 80 documents as Exs.P1 to P80. On behalf of the respondents, no oral evidence was adduced and only got marked the Insurance Police as Ex.R1 by the respondent No.3. 6. Based on the available evidence on record, the tribunal allowed the claim petition and awarded compensation to the claimant in a sum of Rs.2,12,098/- with interest at 6% p.a. from the date of the petition till realization by answering the issues. It is that judgment and award, which is under challenge by the claimant in this appeal. 7. The learned counsel for the appellant-claimant vehemently contended that the tribunal has grossly erred in awarding meager compensation towards loss of future income, pain and suffering, loss of amenities in life, loss of earning during treatment and etc., and sought for enhancement of compensation. 8. He further contended that the tribunal erred in notionally assessing the monthly income of the injured and ought to have taken into consideration the functional disability as is assessed by the Doctor-PW4. He further contended that the tribunal erred in adopting the appropriate multiplier. Hence, he sought for enhancement of compensation by allowing the appeal. 9. 8. He further contended that the tribunal erred in notionally assessing the monthly income of the injured and ought to have taken into consideration the functional disability as is assessed by the Doctor-PW4. He further contended that the tribunal erred in adopting the appropriate multiplier. Hence, he sought for enhancement of compensation by allowing the appeal. 9. Per contra, the learned counsel appearing for the respondent-Insurance Company supported the impugned judgment and award passed by the tribunal stating that the tribunal has rightly taken into account the disability factor as well as the monthly income of the injured and also adopted the appropriate multiplier to award compensation towards loss of future income. 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 injured assessed by the tribunal at Rs.6,500/- is proper and correct? (ii) Whether the disability assessed by the tribunal at 13% is proper and correct?' (iii) Whether the appellant is entitled for enhancement of compensation? We answer the point Nos.1 in the negative and point Nos. 2 and 3 in the affirmative for the following: REASON 11. In this matter, the appellant being injured, when he was standing in front of Shivaramkrishna Petrol Bunk on Gangavathi-Sindhanur main road for filling the fuel, met with an accident due to the rash and negligent driving of Tempo Trax Toofan vehicle bearing No.KA-37/A-5343 by the driver and so also the appellant sustaining grievous injuries in the said accident is not in dispute. 12. The Police papers amply establish that it was the negligent driving of the vehicle bearing No.KA-37/A-5343 resulted in accident and the charge sheet is not challenged by the driver of the offending vehicle or the Insurance Company. Thus, the tribunal negatived the contention urged on behalf of the respondents that there was no accident as is contended by the claimant and since they have not filed any appeal and thus the finding of the Tribunal that, it is the driver of the offending vehicle who is responsible for the cause for the accident, becomes final. 13. On record, the claimant has produced the evidence that he was doing agriculture and milk vending business. 13. On record, the claimant has produced the evidence that he was doing agriculture and milk vending business. In fact the documents produced and marked at Ex.P19 would show that the injured was supplying milk on an average of 52 liters and was earning Rs.1,200/- per day. On perusal of the oral evidence available on record, in the form of PW2 and PW3, also corroborates that the injured was supplying milk. Ex.P20 is the extract of payment register, whereunder the injured had been paid a sum of Rs.3,61,659/- for the period from 01.04.2014 to 04.02.2015. The learned counsel for the appellant vehemently contended that the tribunal ignored the evidentiary value of these documents while assessing the income of the injured. We find sufficient force in the said submission made on behalf of the appellant. 14. There is no contra evidence placed on record to disprove the supply of milk by the injured to the Hoskera 'A' Camp Milk Produces Co-Op. Society. It cannot be construed that Exs.P19 and P20 have come into being in order to claim higher compesantion as the same have been in existence at an undisputed point of time. The Tribunal ignored the probative value of the documents produced at Exs.P19 and 20 and the same requires to be interfered by this Court. 15. The tribunal while dealing with loss of future income, at paragraph 22 of the judgment, has no doubt referred to Exs.P19 to 22 and 68 to 80 for assessing the income, but in paragraph No.23, it has stated that the oral evidence of PW2 and PW3 and Exs.P19 to 22 and 68 to 80 cannot be accepted. But no reason is assigned by the tribunal as to why it should not be accepted. The tribunal has observed that the petitioner did not plead and prove as to how many cattles he had to supply 52 liters of milk per day and how many persons were assisting him in his business. But that is not the criteria for the tribunal to assess the monthly income of the injured. 16. Thus, the tribunal ignoring the oral and documentary evidence on record assessed the monthly income of the injured at Rs.6,500/-. 17. But that is not the criteria for the tribunal to assess the monthly income of the injured. 16. Thus, the tribunal ignoring the oral and documentary evidence on record assessed the monthly income of the injured at Rs.6,500/-. 17. In our considered opinion and after reappreciation of the entire material on record to establish the documentary evidence referred to supra, we are of the considered opinion that the monthly income of the injured assessed by the tribunal at Rs.6,500/- is on the lower side and same needs to be enhanced to Rs.10,000/- per month, having regard to incidental expenditure that is incurred for maintaining the cattle, fodder, assistance, etc., 18. Further, as per the disability certificate vide Ex.P17 issued by the Doctor, who examined as PW4, the claimant has suffered permanent disability to an extent of 40% to the particular limb and to the extent of 18% to 20% to the whole body. The Doctor states that the injured has taken treatment in his hospital for a period of five days as an inpatient and the tribunal has made guess work and assessed the whole body disability at 13%. Thus, we do not find any serious infirmity in the same. 19. Having regard to the age of the injured, the tribunal ought to have adopted the multiplier of 15 instead of 13. Ex.P17 itself mentions the age of the injured as 40 years and the appropriate multiplier would be "15" and not "13". Accordingly, in view of foregoing discussion the loss of future income would be reassessed at Rs.2,34,000/-[Rs.10,000/- (income) x 12 (months) x 15 (multiplier) x 13% (disability)]. 20. In view of the reassement of monthly income at Rs.10,000/-, the claimant would be entitled to the compensation towards loss earning during treatment at Rs.20,000/- instead of Rs.13,000/- awarded by the Tribunal. 21. On the head of 'pain and suffering', the tribunal has granted a sum of Rs.20,000/-, which is on the lower side. Admittedly, the injured has suffered two fractures namely fractures of tibia and fibula. Therefore, we deem it proper to award another sum of Rs.20,000/- on the head of pain and suffering. Accordingly, the injured would be entitled to a sum of Rs.40,000/- instead of Rs.20,000/- towards pain and suffering. 22. Admittedly, the injured has suffered two fractures namely fractures of tibia and fibula. Therefore, we deem it proper to award another sum of Rs.20,000/- on the head of pain and suffering. Accordingly, the injured would be entitled to a sum of Rs.40,000/- instead of Rs.20,000/- towards pain and suffering. 22. Further, the tribunal has granted only a sum of Rs.5,000/- towards 'loss of amenities in life', in our considered opinion the same is on the lower side. Hence, we deem it appropriate to enhance the same by Rs.20,000/-. 23. The tribunal has granted only a sum of Rs.5,000/- towards 'Diet, nourishment, attendant charges and conveyance'. In our considered opinion the same is also on the lower side. Hence, we deem it appropriate to enhance the same to Rs.20,000/- instead of Rs.5,000/- awarded by the tribunal. Further, the compensation of Rs.37,278/- awarded by the tribunal towards 'medical reimbursement' is just and proper and the same is undisturbed. 24. In view of the foregoing discussions, the claimant would be entitled to the following modified compensation. Loss of future income Rs.2,34,000/- Pain and suffering Rs.40,000/- Loss of amenities in life Rs.25,000/- Loss of earning during treatment Rs.20,000/- Diet, nourishment, attendant charges and conveyance Rs.20,000/- Medical reimbursement Rs.37,278/- TOTAL Rs.4,66,278/- 25. Thus, the claimant would be entitled for total compensation of Rs.4,61,278/- as against Rs.2,12,098/- awarded by the Tribunal with interest at 6% per annum from the date of petition till 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 claimant would be entitled for total compensation of Rs.4,61,278/- as against Rs.2,12,098/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization. (iii) The respondent-Insurance Company is directed to deposit the entire compensation amount within six weeks from today. Draw the modified award accordingly.