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2020 DIGILAW 425 (KAR)

MAHABOOB S/O RASHEED v. YASODA BAI SUGALI

2020-02-13

ALOK ARADHE, RAVI V.HOSMANI

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JUDGMENT : This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimant being aggrieved by the judgment dated 23.03.2016 passed by the Motor Accident Claims Tribunal. 2. Facts giving rise to the filing of the appeal briefly stated are that on 17.08.2014 at about 11.00 p.m., the appellant was riding his motorcycle along with pillion rider near Nandagudi bus stand, Hosakote Taluk, Bangalore District. The driver of the Indigo car bearing registration No.AP03 AM3768 which was driven in a rash and negligent manner, came from opposite direction namely Chintamani side and dashed against the motorcycle of the claimant. As a result of the aforesaid accident, the claimant sustained injuries and was hospitalized. The claimant underwent surgery for open reduction with internal fixation and was discharged. The claimant filed a petition under Section 166 of the Act on the ground that the claimant was employed as a mechanic and was earning Rs. 15,000/ p.m. It was also pleaded that the police have filed a charge sheet against the driver of the offending vehicle for the offence punishable under Sections 297 and 337 of IPC. The claimant claimed compensation to the tune of Rs. 15,00,000/along with interest. On service of notice, the respondent No.1 did not appear and was proceeded exparte. Respondent No.2 filed written statement in which inter aliait was pleaded that the offending vehicle was insured with it. It was further pleaded that the driver of the vehicle was not holding effective and valid driving licence as on the date of accident and the jurisdictional police have not complied with mandatory requirements contained in Section 134(c) and 158(6) of the Act. It was also pleaded that the compensation claimed by the appellant is exorbitant and speculative. 3. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and recorded the evidence. The claimant examined himself as PW1 and got exhibited documents namely Ex.P1 to P35. Another witness namely PW2 was examined on behalf of the claimant who exhibited 3 documents namely Ex.P36 to Ex.P38. Learned counsel for the respondent did not adduce any evidence. The claimant examined himself as PW1 and got exhibited documents namely Ex.P1 to P35. Another witness namely PW2 was examined on behalf of the claimant who exhibited 3 documents namely Ex.P36 to Ex.P38. Learned counsel for the respondent did not adduce any evidence. The Claims Tribunal, by the impugned judgment, interalia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs. 4,54,890/along with interest. Being aggrieved, this appeal has been filed. 4. Learned counsel for the appellant submitted that the Tribunal grossly erred in taking the disability of the appellant at 15% and the same ought to have been taken at 22%. It is further submitted that paltry amount on account of loss of income during laid up period as well as on account of future income has been awarded to the claimant. On the other hand, learned counsel for the Insurance Company has submitted that the award passed by the Claims Tribunal is just and proper and the Tribunal has rightly assessed the permanent disability of the appellant at 15% and has awarded compensation which does not call for any enhancement. 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. PW2 namely Dr. Somashekara, in his evidence, has stated that the right ankle of the claimant has been relocated. It has further been stated by him that there is a restriction of movements of bone on left side dessiflexion at 70 degree and right side at 30 degree and inversion/eversion of left side at 60 degree and to right side at 30 degree and loss of muscle power around right ankle by one grade at 6% and disability involving the mobility component of right lower limb is at 21%. The aforesaid doctor has also stated that there has been shortening of leg and the claimant is unable to walk, climb stairs and squat and has restricted movements. The aforesaid witness has assessed the disability of right lower limb at 44% and the whole body disability at 22%. Therefore, we see no reason to disbelieve the aforesaid evidence of the Doctor who is an expert. The aforesaid witness has assessed the disability of right lower limb at 44% and the whole body disability at 22%. Therefore, we see no reason to disbelieve the aforesaid evidence of the Doctor who is an expert. Therefore, the finding of the Claims Tribunal that the claimant has suffered permanent disability to the extent of 15% is set aside and the permanent disability is assessed at 22%. Admittedly, as per the evidence of the claimant himself, he used to earn Rs. 7,000/p.m. If the permanent disability of the claimant is taken to be 22% and the age of the deceased which was 32 years, the multiplier of 16 will have to be applied, thus, the claimant will be entitled to a sum of Rs. 2,95,680/on account of loss of future earnings. Similarly, the claimant is entitled to a sum of Rs. 21,000/on account of loss of income during laid up period as he was unable to work for a period of 3 months on account of the injuries. In addition, the claimant is also entitled to a further sum of Rs. 10,000/towards food, conveyance, nourishment and attendant charges. Thus, in all, the claimant shall be entitled to Rs. 3,26,680/Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is disposed of.