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2020 DIGILAW 1520 (KAR)

Parashuram v. Pushpa Vijaya

2020-07-29

B.M.SHYAM PRASAD, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal. 2. The injured claimant is before this court in this appeal praying for enhancement of compensation by questioning the validity of judgment and award dated 04.09.2015, passed by the Additional Senior Civil Judge and JMFC and Member, MACT-VI, Jamkhandi in MVC No.513/2013. 3. The brief facts which are necessary for the disposal of this appeal are as under : It is contended in the claim petition that on 25.10.2012 at about 10.30 a.m. when the petitioner was going to his duty on the motorcycle bearing No.KA- 48/H-8789, near Basaveshwar circle on Jamkhandi- Bijapur PWD road, one Milk Tanker bearing No.KA- 02/D-4060 came from hind side in a rash and negligent manner and dashed against the petitioner resulting in fall of the claimant and sustained grievous injuries. 4. Soon thereafter he was shifted to Dr. G.N. Sanadi hospital, Jamkhandi and he took treatment for about three months as inpatient and spent more than Rs.1,50,000/- towards medical expenses and even as on the date of filing of the claim petition, he was in follow up treatment. 5. It is also contended that he has undergone two surgeries and he is unable to continue with the work and sought for suitable compensation. 6. After issuance of notice, the first respondentowner of the vehicle remained absent and he was placed exparte. The second respondent appeared through his Advocate and filed detailed written statement denying the averments made in the claim petition in toto. 7. Based on the rival contentions, the tribunal raised the following issues: 1. Whether the petitioner proves that on 25.10.2012 at about 10.30 am while he was proceeding in his motorcycle bearing No.KA-48/H-8789 near Basaveshwar circle, a milk tanker bearing No.KA-02/D-4060 driven by the driver in rash and negligent manner and dashed to the petitioner's motorcycle as a result he fell down and he sustained injuries by the driver of the said milk tanker belonging to the respondent No.1? 2. Whether the respondent proves that petition is not maintainable? 3. Whether the petitioner is entitled to the compensation ? If he is entitled, how much and from whom? 4. What order or award? 8. 2. Whether the respondent proves that petition is not maintainable? 3. Whether the petitioner is entitled to the compensation ? If he is entitled, how much and from whom? 4. What order or award? 8. In order to discharge the burden cast on the claimant, the claimant got examined himself as PW1 and relied on 8 documents vide Ex.P1 to P8. He also got examined the Doctor as PW2 and got marked Ex.P9 and 10 through him. Respondents did not adduce oral or documentary evidence. 9. After hearing the parties and after considering the entire material on record, the tribunal answered the above issues No.1 in the affirmative, issue No.2 in the negative and issue No.3 partly in affirmative and allowed the claim petition by awarding the compensation to a sum of Rs.1,74,302/- with interest @ 9% p.a. from the date of petition till its realization. 10. It is that judgment which is under challenge in this appeal. 11. Heard the learned counsel for the appellantinjured claimant and respondent-Insurance company. Perused the material available on record. 12. The learned counsel for the appellantinjured claimant submits that the tribunal grossly erred in assessing the monthly income of the claimant at Rs.5,000/- and sought for enhancement. He also submits that the tribunal did not grant any compensation on the head of loss of amenities and loss of income during laid up period and seeks awarding suitable compensation on those heads. It is also his submission that awarding only Rs.20,000/- towards pain and suffering is on the lower side and sought for enhancement. He also submits that no compensation is granted on the head of attendant and conveyance charges. 13. Per contra, the learned counsel for the Insurance company contended that the tribunal has rightly assessed the monthly income of the claimant and the compensation awarded is just compensation and sought for dismissal of the appeal. 14. 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.5,000/- per month of the injured claimant is proper and correct? 2. Whether the tribunal is justified in not awarding any compensation on the head of loss and amenities and loss of income during laid up period? 3. Whether the injured claimant would be entitled for enhancement of compensation? 15. 1. Whether the income assessed by the tribunal at Rs.5,000/- per month of the injured claimant is proper and correct? 2. Whether the tribunal is justified in not awarding any compensation on the head of loss and amenities and loss of income during laid up period? 3. Whether the injured claimant would be entitled for enhancement of compensation? 15. Answer to the above point Nos.1 and 2 in the negative and point No. 3 is partly in the affirmative for the following : REASONS 16. In the present case, the injured claimant having sustained injuries in an accident involving the motorcycle bearing No.KA-48/H-8789 and milk Tanker vehicle bearing No.KA-02/D-4060 at about 10.30 a.m. on 25.10.2012, is not in dispute. The driver of the Milk Tanker has been charge sheeted and negligence on the part of the Milk Tanker stands proved. 17. In the claim petition, it is contended that the claimant was having monthly income of Rs.8,000/- by working in private service. But, the tribunal has recorded a finding that no documents whatsoever are produced to substantiate that the injured claimant was having monthly income of Rs.8,000/- and as such, has assessed the monthly income at Rs.5,000/- notionally. 18. For the accidental claims of the year 2012, this court and Lok Adalaths, in the absence of formal proof of income, have assessed the monthly income at Rs.6,500/- consistently. 19. In the present case also, in the absence of proof of monthly income of the injured claimant, we deem it appropriate to assess the monthly income at Rs.6,500/- notionally. 20. The tribunal has rightly taken at 9% disability as against 28% i.e., mentioned in Ex.P9 marked through doctor who is examined as PW2. 21. Admittedly, PW2 is not a treating doctor and therefore, the tribunal taking 1/3rd of the disability factor as is shown in Ex.P9, is just and proper. 22. Having regard to the age of the claimant being 34 years, the proper multiplier would be 16. Therefore, on the head of loss of future income towards disability is to be reassessed by considering the monthly income at Rs.6,500/-. The same works out at Rs.1,12,320/- (6500X12X16X9/100). 23. The tribunal granted Rs.67,902/- towards medical expenses, which requires no interference. 24. On the head of pain and suffering, the tribunal has granted Rs.20,000/-. Therefore, on the head of loss of future income towards disability is to be reassessed by considering the monthly income at Rs.6,500/-. The same works out at Rs.1,12,320/- (6500X12X16X9/100). 23. The tribunal granted Rs.67,902/- towards medical expenses, which requires no interference. 24. On the head of pain and suffering, the tribunal has granted Rs.20,000/-. Having regard to the injuries sustained by the claimant, in our considered opinion granting Rs.40,000/- on the head of pain and suffering, would meet the ends of justice. 25. The tribunal failed to grant any amount on the head of loss of amenities, loss of income during laid up period and attendant and conveyance charges. No reason is also recorded as to denial of the compensation on those heads. In our opinion, the claimant is entitled to a sum of Rs.30,000/- on the head of loss of amenities; a sum of Rs.19,500/- (6,500X3) on the head of loss of income during laid up period and Rs.10,000/- on the head of attendant and conveyance charges, would meets the ends of justice. 26. Accordingly, the injured claimant would be entitled for the following modified compensation as under : 1 Pain and Suffering 40,000/- 2 Medical expenses 67,902/- 3 Loss of future income towards disability (6500X12X16X9%) 1,12,320/- 4 Attendant and conveyance charges 10,000/- 5 Loss of income during laid up period (Rs.6,500X3) 19,500/- 6 Loss of amenities 30,000/- TOTAL 2,79,722/- 27. Thus, the claimant would be entitled for total compensation of Rs.2,79,722/-. 28. In view of the foregoing discussions, I pass the following: ORDER Appeal is allowed in part. The claimant is entitled for total compensation of Rs.2,79,722/- as against Rs.1,74,302/- awarded by the tribunal. The injured claimant is entitled to interest @ 6% p.a. only on the enhanced compensation amount. 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. Deposit ordered by the tribunal would be in the same proportion. The registry is directed to draw the modified award accordingly.