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2020 DIGILAW 1706 (KAR)

K. A. Gopalakrishna v. United India Insurance Co. Ltd. , Bengaluru

2020-09-04

N.S.SANJAY GOWDA

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JUDGMENT N.S.Sanjay Gowda, J. - The claimant, being aggrieved by the exoneration of liability of the Insurance Company and also by the quantum of compensation awarded, is in appeal. 2. The fact that an accident took place on 23.04.2010 is not in dispute and the fact that the offending vehicle was insured is also not in dispute. 3. The Tribunal has ascertained from the medical evidence adduced that the claimant had suffered an amputation of his left hand below the elbow joint and it has determined the disability at 70% and after assessing the monthly income at Rs.4,500/-, awarded compensation of Rs.6,72,400/- under the following heads: 1 Pain and suffering 50,000/- 2 Medical expenses 36,000/- 3 Food, diet, nourishment, transportation charges, attendant charges, conveyance, etc. 25,000/- 4 Loss of future earning capacity 4,91,400/- 5 Loss of amenities 50,000/- 6 Loss of longevity, discomfort, etc. 20,000/- TOTAL 6,72,400/- 4. Learned counsel for the appellant contended that in view of the judgment rendered in PAPPU & OTHERS Vs. VINOD KUMAR LAMBA & ANOTHER, (2018) 3 SCC 208 , the Insurance Company cannot be exonerated merely because the driver of the vehicle did not possess the requisite endorsement to his Driving Licence. He also submitted that the monthly income determined by the Tribunal was on the lower side and so also were the sums awarded towards pain and suffering. 5. Learned counsel for the Insurance Company fairly submitted that the finding regarding absolving the Insurance Company of liability will have to be set aside in the light of the judgment rendered by the Apex Court in Pappu's case referred to supra. He further submitted that the sums awarded by the Tribunal was just and proper and do not call for any enhancement. 6. As far as the question of liability is concerned, in view of the fact that the Apex Court has held in Pappu's case referred to supra that non-possessing of a requisite endorsement will not absolve the Insurance Company of its liability, the finding of the Tribunal under the impugned award will have to be set aside and it will have to be held that the Insurance Company would be liable to pay the compensation awarded. 7. As far as the quantum is concerned, the claimant was aged 46 years and since there was no positive evidence to establish his monthly income, the Tribunal has determined it as Rs.4,500/-. 7. As far as the quantum is concerned, the claimant was aged 46 years and since there was no positive evidence to establish his monthly income, the Tribunal has determined it as Rs.4,500/-. In my view, in such a situation, it would be prudent to adopt the monthly income as assessed by the Karnataka State Legal Services Authority, which would be a sum of Rs.5,500/- since the accident is of the year 2010. 8. The Tribunal has assessed the percentage of disability at 70%. The said assessment cannot be found fault with and the same is affirmed. Consequently, the claimant would be entitled to a sum of Rs.6,00,600/- (Rs.5,500/- X 12 X 13 X 70/100) towards loss of future earning capacity. 9. The Tribunal has awarded a sum of Rs.50,000/- towards pain and sufferings. In my view, since the claimant has lost a part of his left hand, it would be just and proper to award a sum of Rs.1,00,000/- towards pain and sufferings and Rs.75,000/- towards loss of amenities as against sum of Rs.50,000/- awarded by the Tribunal. 10. The Tribunal has awarded a sum of Rs.36,000/- towards medical expenditure which is based on documentary evidence, which is just and proper and hence, the same is confirmed. 11. The Tribunal has awarded a sum of Rs.25,000/- towards nourishment, conveyance, etc., which would have to be marginally enhanced to Rs.35,000/-. 12. As the claimant has suffered an amputation, it is indisputable that he would have been hospitalized for quite some time and would have also had to recuperate from the procedures and thi period would be for at least 6 months. As I have assessed the monthly income of the claimant at Rs.5,500/-, the loss of income during laid up period will also have to be granted and having regard to the fact the claimant has suffered an amputation, it would be just and proper to award loss of income for a period of six months which would be Rs.33,000/- (Rs.5,500 X 6) 13. Thus, the claimant is held entitled to the following compensation: 1 Pain and suffering 1,00,000/- 2 Medical expenses 36,000/- 3 Food, diet, nourishment, transportation charges, attendant charges, conveyance, etc. 35,000/- 4 Loss of future earning capacity 6,00,600/- 5 Loss of amenities 75,000/- 6 Loss of longevity, discomfort, etc. 20,000/- 7 Loss of earning during laid up period 33,000/- TOTAL 8,99,600/- 14. 35,000/- 4 Loss of future earning capacity 6,00,600/- 5 Loss of amenities 75,000/- 6 Loss of longevity, discomfort, etc. 20,000/- 7 Loss of earning during laid up period 33,000/- TOTAL 8,99,600/- 14. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till its realization. 15. The Insurance Company is held liable to pay the said compensation and is directed to deposit the same within two months from the date of receipt of a copy of this judgment. 16. The appeal is thus allowed in part to the extent stated above.