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2020 DIGILAW 376 (KAR)

HANUMANTHAPPA v. GIRIDHARA H. S.

2020-02-07

H.T.NARENDRA PRASAD

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JUDGMENT : This appeal is filed by the claimant challenging the judgment and award dated 29.4.2015 passed by the Court of the Prl. Senior Civil Judge & Member MACTIV, Davanagere in MVC 36/2013. 2. Brief facts of the case: On 1.10.2012 at about 2 p.m. when the claimant was proceeding on a motorcycle bearing Registration No.KA17ED6444 to Dindadahalli, hear Hanumanahalli Village as a pillion rider, at that time, the rider of the said motorcycle rode same in a rash and negligent manner and caused accident. As a result, he sustained injuries and immediately he was shifted to the hospital. After recovering from injuries, the claimant filed a claim petition before the Tribunal. In order to support his case, he examined himself as PW1, and Dr.G.C.Basavaraja as PW2, and submitted 61 documents. On the other hand, the Insurance Company has neither examined any witnesses nor produced any documents. After appreciation of the evidence, the Tribunal granted compensation of Rs.90,850/with interest at 6% p.a. Being aggrieved by the same, the present appeal is filed. 3. The learned counsel for the claimant has raised the following contentions: Firstly, the claimant claims that he was doing agricultural work and earning Rs.8,000/per month, but the Tribunal has assessed the income of the claimant as merely as Rs.4,500/p.m. Secondly, PW2, the doctor has stated in his evidence that the claimant has suffered 32% physical permanent disability. But the Tribunal is not justified in taking the whole body disability at 5% while calculating the 'loss of future income'. Thirdly, claimant has sustained fracture of shaft of Tibia and Fibula at Mid 1/3rd of right leg. Swelling at right leg and puncture wound tenderness over the right leg, closed reduction and internal fixation with IMIL nail done under spinal anesthesia. Considering the same, the Tribunal has not granted any compensation towards 'loss of amenities' and has granted meager compensation towards 'pain and sufferings'. Hence, the learned counsel for the claimant prays for allowing the appeal. 4. Per contra, the learned counsel for the Insurance Company has raised the following counter contentions: Firstly, even though the claimant claims that he was an agriculturist and earning Rs.8,000/per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Secondly, PW2, the doctor has stated in his evidence that the claimant has suffered disability of 32% to whole body. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Secondly, PW2, the doctor has stated in his evidence that the claimant has suffered disability of 32% to whole body. PW2 is not the treated doctor. The Tribunal considering the same has rightly assessed the whole body disability at 5%. Thirdly, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation. Hence, the learned counsel for the Insurance Company prays for dismissal of the appeal. 5. Heard the learned counsel for the parties. Perused the records. 6. It is not in dispute that the claimant had sustained injuries in a road traffic accident occurred on 1.10.2012 due to rash and negligent driving of the offending vehicle by its driver. 7. The claimant claims that he was doing agricultural work and earning Rs.8,000/per month. But the same is not established by producing any documents. Therefore, the Tribunal is left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by the Lok Adalath for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2012, the income should be taken notionally as Rs.7,000/per month. Therefore, this Court enhances the claimant’s income from Rs.4,500/to Rs.7,000/per month. 8. As per the testimony of the claimant coupled with that of the evidence of PW2, the nature of injuries suggests that the claimant must have been under rest and treatment for a period of 3 months. Further, the claimant has stated that he was not in a position to do any manual work. Accordingly, compensation of Rs.2,250/granted by the Tribunal under the head of 'loss of income during laid up period' is enhanced to Rs.21,000/(Rs.7,000 X 3 months). 9. As per wound certificate, the claimant has sustained fracture of right leg shaft of Tibia and Fibula at mid 1/3rd and swelling at right leg and considering puncture wound and tenderness over the right leg and abnormal movement. PW2, the doctor has stated in his evidence that the claimant has suffered permanent physical disability of 32%. Taking into consideration the wound certificate and testimony of the doctor, this court is of the opinion that the whole body disability can be taken at 11%. PW2, the doctor has stated in his evidence that the claimant has suffered permanent physical disability of 32%. Taking into consideration the wound certificate and testimony of the doctor, this court is of the opinion that the whole body disability can be taken at 11%. The claimant is aged about 26 years at the time of accident, and the multiplier applicable to his age group is 17 instead of 18 applied by the Tribunal. His income is assessed at Rs.7,000/per month. Therefore, the ‘loss of future income’ works out to Rs.1,57,080/(7000 x 12 x 17 x 11%) and it is awarded as against Rs.48,600/awarded by the Tribunal. 10. Considering the injuries mentioned in the wound certificate, disability stated by the doctor and the nature of injuries and an amount of discomfort and unhappiness, the claimant has to undergo in his life, this Court enhances the compensation from Rs.10,000/to Rs.20,000/under the head of 'pain and sufferings' and Rs.20,000/is awarded under the head 'loss of amenities'. 11. The claimant was treated as inpatient for 15 days. Considering the same, Rs.30,000/awarded by the Tribunal under ‘medical and incidental expenses’ is enhanced to Rs.40,000/. 12. The compensation awarded by the Tribunal under other heads remains undisturbed. 13. For the reasons stated above, this appeal is partly allowed. The judgment and award of the Tribunal stands modified. The claimant is entitled to receive the following compensation: 14. The Insurance Company is directed to deposit the entire compensation amount before the Tribunal along with an interest @ 6% per annum, from the date of filing of the claim petition till the date of realization, within a period of three months from the date of receipt of the certified copy of this judgment. The amount so deposited shall be released forthwith to the claimant by the learned Tribunal after verifying his identity. Compensation under different Heads As awarded by the Tribunal (Rs.) As awarded by this Court (Rs.) Pain and sufferings 10,000 20,000 Medical and incidental 30,000 40,000 expenses Loss of income during laid up period 2,250 21,000 Loss of future income 48,600 157,080 Loss of amenities 0 20,000 Total 90,850 258,080