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2020 DIGILAW 1460 (KAR)

Kiran Pundalik Desurkar v. Laxman Mahadev Patil

2020-07-22

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - The claimant-injured is before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 25.08.2015, passed in M.V.C.No.1465/2013 on the file of the II-Addl. Senior Civil Judge and Member Addl. MACT, Belagavi (for short 'the Tribunal') praying for enhancement of the compensation. 2. A claim petition came to be filed under Section 166 of M.V. Act, claiming compensation for the injuries sustained by the claimant in a road traffic accident that occurred on 21.01.2013, involving Bajaj M-80 motorcycle bearing registration No.KA-23/J-2416 and the motorcycle bearing registration No.KA-22/EE-2284. It is stated that the claimant was aged about 29 years as on the date of accident and was earning Rs.10,000/- per month by doing centering and bar bending work. 3. On issuance of notice, second respondent Insurer appeared before the tribunal and filed its objection statement. Whereas, respondent No.1 was placed exparte. In its statement, the second respondent denied the averments made in the claim petition in toto. Further it is contended that the rider of the offending motorcycle was not holding valid and effective driving licence as on the date of accident. 4. In support of the claim, the claimant himself got examined as PW1 and also examined the Doctor as PW2, apart from marking the documents as Exs.P1 to P27. On behalf of the respondents, Ex.R1-insurance policy was marked with consent. 5. The tribunal on close scrutiny of the materials made available before it and after hearing the parties, awarded total compensation of Rs.2,90,600/- with interest at 6% p.a. from the date of the petition till realization. The claimant not being satisfied with the quantum of compensation is before this Court praying for enhancement of compensation. 6. Heard the learned counsel for the appellantinjured and the learned counsel for respondent No.2-Insurer through Video Conferencing. Perused the trial Court records. 7. Learned counsel for the appellant-claimant submits that the accident is of the year 2013 and the tribunal had failed to assess the income of the claimant based on the material evidence on record. It is his submission that the injured was earning Rs.10,000/- per month by doing centering and bar bending work. Perused the trial Court records. 7. Learned counsel for the appellant-claimant submits that the accident is of the year 2013 and the tribunal had failed to assess the income of the claimant based on the material evidence on record. It is his submission that the injured was earning Rs.10,000/- per month by doing centering and bar bending work. He further submits that, the notional income while settling the accident claims of the year 2013, this Court and Lok Adalaths would assess the notional income more than the income assessed by the Tribunal. He also submits that the claimant was admitted to the hospital as an inpatient for 78 days and suffered three fractures. Without taking note of the injuries sustained and the evidence of PW2, the tribunal awarded meager compensation on other heads. Hence, he prays for enhancement of compensation. 8. Per contra, the learned counsel for the respondent No.2-Insurance Company vehemently contended that the tribunal has properly assessed the monthly income of the claimant and so also the disability. The compensation awarded by the tribunal is just compensation and the same does not call for any interference in this appeal and sought for dismissal of the appeal. 9. Having heard the learned counsel for the parties and on perusal of the trial Court records, the following points would arise for our consideration: i) Whether the income assessed by the tribunal at Rs.6,000/- per month is proper and correct? ii) Whether the claimant would be entitled for enhanced compensation? We answer the point No.1 in the negative and point No.2 in the affirmative for the following reasons: 10. Admittedly, the accident is of the year 2013. The occurrence of accident and the accidental injuries sustained by the claimant-appellant is not in dispute in this appeal. The claimant states that he was earning Rs.10,000/- by doing centering and bar bending work as on the date of accident, but he has not placed on record any material to establish his income. In the absence of any material, the tribunal has assessed the income notionally at Rs.6,000/- per month, which is on the lower side. This Court and the Lok Adalaths while settling the accident claims of the year 2013 would normally assess the income of unskilled labourers at Rs.7,000/- per month. In the absence of any material, the tribunal has assessed the income notionally at Rs.6,000/- per month, which is on the lower side. This Court and the Lok Adalaths while settling the accident claims of the year 2013 would normally assess the income of unskilled labourers at Rs.7,000/- per month. Hence, we deem it appropriate to assess the notional income of the injured in the present case also at Rs.7,000/- per month instead of Rs.6,000/- as assessed by the tribunal. 11. The claimant examined the Doctor as PW2. Based on the evidence of PW2, the Doctor and the medical records, the tribunal had rightly assessed the whole body disability at 15%, which is just and proper. The disability assessed is not disputed nor is under challenge in this appeal. Further, the tribunal has applied right multiplier of 17 to assess the compensation towards loss of earning capacity, taking the age of the claimant at 29 years. On reassessment of income, taking disability at 15% as assessed by the tribunal and adopted multiplier of 17, the "loss of earning capacity due to disability" would be Rs.2,14,200/- (Rs.7,000/- x 12 x 17 x 15%). 12. Further, the claimant was admitted to the Hospital as an inpatient for 78 days in three intervals for treatment. He suffered injuries of CLW on right leg, CLW on right middle finger and ring finger, CLW on right ear and abrasion on right leg. The Doctor had opined that among the said injuries, injury Nos.1, 2 and 4 are grievous in nature and the claimant had undergone operations. As such, we are of the view that the compensation of Rs.5,000/- each awarded towards "pain and suffering" and "loss of amenities in life" are on the lower side. Hence, taking note of the injuries sustained, treatment taken and the evidence of PW2 along with medical records, the claimant would be entitled to an additional compensation of Rs.35,000/- each towards "pain and suffering" and "loss of amenities in life". 13. Hence, taking note of the injuries sustained, treatment taken and the evidence of PW2 along with medical records, the claimant would be entitled to an additional compensation of Rs.35,000/- each towards "pain and suffering" and "loss of amenities in life". 13. In view of the fact that we have assessed the monthly income of the claimant at Rs.7,000/- 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.35,000/- instead of Rs.12,000/- awarded by the tribunal taking note of the fact that due to the injuries sustained the claimant would have been out of employment for nearly five months. The compensation awarded by the tribunal towards "Medical & other incidental expenses" is just and proper. In all, the claimant would be entitled to the following modified compensation. Medical and other incidental expenses Rs.85,000/- Pain and Suffering Rs.40,000/- Future Loss of earning capacity due to disability Rs.2,14,200/- Loss of income during laid up period (Rs.7,000/- x 5) Rs.35,000/- Loss of amenities in life Rs.40,000/- TOTAL Rs.4,14,200/- 14. Thus, the claimant would be entitled for total compensation of Rs.4,14,200/- as against Rs.2,90,600/- awarded by the Tribunal with interest at 6% 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 claimant would be entitled for total compensation of Rs.4,14,200/- as against Rs.2,90,600/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization. (iii) The respondent No.2-Insruacne Company is directed to deposit the entire compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment. (iv) The deposit and release of compensation would be as ordered by the tribunal in the same ratio. (v) Draw the modified award accordingly.