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2020 DIGILAW 1403 (KAR)

Shiva @ Shivalingappa v. Vinayaka

2020-07-14

S.G.PANDIT, SHIVASHANKAR AMARANNAVAR

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JUDGMENT Shivashankar Amarannavar, J. - The claimant-injured is in appeal being dissatisfied with the quantum of compensation awarded by the learned Presiding Officer, Fast Track Court-III, Belgaum, in MVC No.2100 of 2011 dated 13.11.2014. 2. A claim petition was laid by the claimant under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the accidental injuries sustained by him in a road traffic accident that occurred on 07.06.2011 involving motor bike bearing registration No.KA-22-X-8893 and autorickshaw bearing registration No.KA-22-B-1578. 3. There is no dispute with regard to the accident and the accidental injuries sustained by the claimant involving the above said motor bike and the autorickshaw. Before the Tribunal, the claimant examined himself as PW-1 and also examined the Doctor as PW-2 and a witness as PW3 3 apart from marking documents Exs.P-1 to P-39. Respondent No.2-insurance company, with consent, got marked Ex.R-1-insurance policy. 4. The Tribunal analyzing the material placed before it awarded compensation of Rs.7,35,000/- with interest at the rate of 9% per annum from the date of petition till realization under the following heads: 1 Pain and sufferings 2,50,000/- 2 Loss of comfort and amenities 1,25,000/- 3 Medical expenditure, attendant charges, conveyance and incidental charges etc. 3,60,000/- Total 7,35,000/- The Tribunal has not awarded compensation towards loss of earnings on the ground that the claimant has not sustained any loss in his earnings. The claimant being dissatisfied with the quantum of compensation awarded by the Tribunal is before this Court praying for enhancement of compensation. 5. Heard the learned counsel for the appellant as well as the learned counsel for the respondent-insurance company and perused the records. 6. Learned counsel for the appellant would submit that the Tribunal erred in not awarding compensation towards loss of earnings even though the claimant has suffered loss in his business; that the Tribunal has not taken into consideration that the claimant has engaged an employee-PW-3 to look after his business and spending Rs.8,000/- per month towards his salary. Thus, he prays for awarding compensation towards loss of earnings. 7. Per contra, learned counsel for the respondentinsurance company would submit that the compensation awarded by the Tribunal is just and proper and the claimant would not be entitled for any enhancement. Thus, he prays for awarding compensation towards loss of earnings. 7. Per contra, learned counsel for the respondentinsurance company would submit that the compensation awarded by the Tribunal is just and proper and the claimant would not be entitled for any enhancement. The finding of the Tribunal in not awarding compensation towards loss of earnings is proper and correct, as the claimant has not suffered any loss in his business instead, he has earned profit in his business. Thus, he prayed for dismissal of the appeal. 8. Having heard the learned counsel for the parties and on considering the rival contentions, the points that would arise for our consideration are as under: i. Whether the Tribunal has erred in not awarding compensation towards loss of earnings? ii. Whether the compensation awarded by the Tribunal is proper, just and reasonable? answer to the aforesaid point No.1 is in the negative and Point No.2 is in the affirmative for the following reasons: 9. The accident took place on 07.06.2011. The claimant was admitted to the hospital as an indoor patient from 07.06.2011 to 24.06.2011 and from 16.12.2012 to 25.12.2012. The number of days in the hospital, where the claimant was admitted as an in patient, is for a period of 28 days. PW-2 is the Doctor, who has treated the claimant. Ex.P-5 is the wound certificate. The injuries mentioned in the wound certificate-Ex.P-5 are not in dispute. Ex.P-13 is the disability certificate issued by PW-2. PW-2 has opined that the claimant has suffered permanent physical disability to an extent of 48% to his lower limb. There is no dispute with respect to the claimant suffering permanent physical disability due to the accidental injuries. Therefore, the claimant is required to prove not only his permanent physical disability but also should substantiate that because of the said injuries, his printing business has come down or because of the injuries, he suffered loss in the printing business. 10. The learned counsel for the insurance company has argued that on going through the contents of the documents filed by the claimant himself, it is very much clear that the claimant's printing business is neither stopped nor the annual turnover is reduced. 11. Ex.P-25 is the certificate issued by the Chartered Accountant and Exs.P-26 to 29 are the income tax returns for the assessment years 2008-09 to 2011-12. 11. Ex.P-25 is the certificate issued by the Chartered Accountant and Exs.P-26 to 29 are the income tax returns for the assessment years 2008-09 to 2011-12. It is not disputed that the claimant is the proprietor of M/s. Shiva Offset Printers near Raghuvendra Temple, Tilakchowk, Belgaum. PW-1-the cliamant has stated in his evidence that he is an income tax assessee and he used to submit his income tax annual returns. Exs.P-26 to 29 are the income tax returns submitted by the claimant to the Income Tax Department for the assessment years 2008-09 to 2011-12. On perusal of the income tax returns along with the statement of computation of income tax, total income as well as trading, profit and loss account of the petitioner's printing press business, it is clear that the annual taxable income of the petitioner has been increased every year from the assessment year 2008-09. The accident had occurred on 07.06.2011, hence, the accounting year is 2011-12. The gross income for the accounting year 2011-12 is Rs.7,85,587/- and if it is compared to the previous year, there is increase in the gross total income. Ex.P-25 is the certificate issued by the Chartered Accountant. The annual turnover of the claimant's business is enhanced from the year 2009-10 and 2010-11 and 2011-12. For the accounting year 2011-12, the turnover from the printing business is Rs.1,04,34,334/-. The said turnover from the printing business of the claimant, if, compared to the previous years, the business of the claimant is increased. Therefore, the said document clearly show that though the claimant has suffered permanent physical disability, it has not adversely affected his business. On the other hand, his business is increased. Hence, compensation has to be awarded only in a case of actual loss of future earnings. In the instant case, the claimant is neither put to any loss nor his printing business is stopped. 12. It is the evidence of PW-3 that he is working in the printing business of the claimant on monthly salary of Rs.6,000/- and it has been increased to Rs.8,000/- per month from the year 2012. The evidence of PW-3 is of no help to the claimant. The claimant has not engaged PW-3 to look after his business instead PW-3 was already working with the claimant. The evidence of PW-3 is of no help to the claimant. The claimant has not engaged PW-3 to look after his business instead PW-3 was already working with the claimant. Considering the above said facts, we are of the opinion that the Tribunal has rightly appreciated the oral and documentary evidence on record and has come to a right conclusion that the claimant is not entitled for compensation towards loss of earnings. 13. Awarding of compensation of Rs.3,50,000/- by the Tribunal towards medical expenses, is just and reasonable as the same is as per the hospital and medical bills produced by the claimant. Apart from that, the Tribunal has awarded a sum of Rs.10,000/- towards conveyance, attendant charges and incidental charges, which is also just and reasonable. 14. On considering fractures and the X-ray report- Ex.P-12, the Tribunal has come to the conclusion that the claimant cannot walk without the help of the walker throughout his life and thus has awarded a sum of Rs.2,50,000/- under the head pain and suffering. Considering the said injuries suffered by the claimant, we are of the view that the compensation awarded towards pain and suffering is proper and correct. The Tribunal has awarded a sum of Rs.1,25,000/- towards loss of comfort and amenities. The said amount awarded by the Tribunal is after considering the injuries sustained by the claimant and the fact that he cannot walk properly without the aid of walker. Thus, we are of the opinion that the compensation of Rs.7,35,000/- awarded by the Tribunal is just and proper and we do not find any ground to enhance the compensation. Accordingly, the points for consideration are answered and the following order is passed. The appeal is dismissed.