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2020 DIGILAW 950 (KAR)

Malakari v. Laxman Maleppa Nandi

2020-06-02

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT S.G. Pandit, J. - Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is heard finally and taken up for final disposal. 2. The claimant appellant is before this court praying for enhancement of compensation not being satisfied with the quantum of compensation awarded by the tribunal under judgment and award dated 02.03.2015 in MVC No.2286/2013 on the file of II Additional Senior Civil Judge and Additional MACT, Belagavi. 3. Brief facts of the case are that, the claimant filed the claim petition under Section 166 of Motor Vehicles Act, claiming compensation on account of injuries sustained by him in a road traffic accident. It is stated that on 16.05.2013, at about 9.00AM when the claimant was proceeding in his bicycle from his house to Kankanwadi, a motorcycle bearing No.KA-23/ED- 7673 came from back side in a rash and negligent manner and dashed to the claimant. Due to which, he sustained grievous injuries, immediately he was shifted to Nimra hospital, Gokak and was admitted as inpatient from 16.05.2013 to 19.06.2013. It is stated that the claimant was doing agricultural work and was earning Rs.1,00,000/- per annum. In addition to that he was doing milk vending business and was earning a sum of Rs.6,000/- per month. 4. On issuance of notice, both respondents appeared, but only second respondent filed objections denying the claim petition averments. Further, the 2nd respondent Insurer also disputed the driving licence of the driver of the offending vehicle. The claimant examined himself as PW1 and got examined Doctor as PW2. In support of his case, got marked the documents as Ex.P1 to P16. The respondents have got marked Ex.R1 the Insurance policy. The tribunal on appreciating the material on record both oral and documentary, awarded total compensation of Rs.2,46,218/- with interest @ 6% p.a. on the following heads: 1 Towards loss of earning capacity 1,29,600/- 2 Towards medical expenses 99,618/- 3 Towards pain and suffering, special diet, conveyance and incidental charges 10,000/- 4 Towards during lay off period for 35 days (Rs.200 X 35=Rs.7000) 7,000/- Total 2,46,218/- 5. While awarding the above compensation, the tribunal assessed the income of the claimant at Rs.6,000/- per month and assessed the disability at 10% and awarded total compensation of Rs.2,46,218/-. Aggrieved by the same, the claimant is before this court in this appeal for enhancement of compensation. 6. While awarding the above compensation, the tribunal assessed the income of the claimant at Rs.6,000/- per month and assessed the disability at 10% and awarded total compensation of Rs.2,46,218/-. Aggrieved by the same, the claimant is before this court in this appeal for enhancement of compensation. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent-Insurance company. 7. The learned counsel for the appellant would submit that the compensation awarded by the tribunal is on the lower side and prays for enhancement of the same. He submits that the claimant has suffered Malunited fracture neck of the right femur. Malunited comminuted fracture of upper 1/3rd shaft of the right ulna. Malunited fracture lower end of the right radius. The doctor has deposed that the claimant suffers from 30% disability with respect to right lower limb and 45% with respect of right upper limb. Further, he submits that in support of his case, the claimant has marked Ex.P9 disability certificate, but, the tribunal failed to consider medical evidence to assess physical disability. Thus, he prays to reassess the disability. 8. Further, the learned counsel contended that the tribunal also failed to properly assess the income of the claimant. He submits that the claimant was doing agricultural work and was earning Rs.1,00,000/- per annum and in addition to that he was also doing milk vending business, earning Rs.6,000/- per month. Instead of properly assessing the income of the claimant, the tribunal erroneously assessed the income of the claimant at Rs.6,000/- per month which needs to be reassessed. Further, he submit that the tribunal has not awarded any compensation on the head of loss of amenities and the compensation awarded on the other heads are also on the lower side. Thus, he prays for enhancement of the compensation by allowing the appeal. 9. The learned counsel for the respondent- Insurance company submits that the compensation awarded by the tribunal is just compensation, which needs no interference. Further, he submits that in the absence of any material to indicate the exact income of the claimant, the tribunal rightly assessed the income of the claimant at Rs.6,000/- per month which needs no interference. 9. The learned counsel for the respondent- Insurance company submits that the compensation awarded by the tribunal is just compensation, which needs no interference. Further, he submits that in the absence of any material to indicate the exact income of the claimant, the tribunal rightly assessed the income of the claimant at Rs.6,000/- per month which needs no interference. Further, taking note of the fact that the claimant has suffered 30% disability with respect to right lower limb and 45% disability with respect to right upper limb, the tribunal has assessed the disability at 10% for the whole body, which also needs no interference. Hence, he prayed to dismiss the appeal filed by the claimant. 10. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for our consideration:- 1. Whether the disability assessed by the tribunal at 10% to the whole body is proper and correct? 2. Whether the income assessed by the tribunal at Rs.6,000/- per month is proper and correct? 3. In the facts and circumstances of the case, whether the claimant would be entitled for enhanced compensation ? 11. Answer to the above point Nos.1 and 2 are negative and point No.3 is affirmative for the following reasons: 12. The accident which took placed on 16.05.2013 involving the bicycle and motorcycle bearing No.KA-23/ED-7673 and the injuries sustained by the claimant are not in dispute. The claimant is before this court praying for enhancement of compensation. 13. The claimant has placed on record Ex.P6 wound certificate, Ex.P8 discharge summary, Ex.P9 disability certificate. It is not in dispute that the claimant was inpatient for a period of 35 days from 16.05.2013 to 19.06.2013. The claimant has suffered malunited fracture neck of the right femur, malunited comminuted fracture of upper 1/3rd shaft of the right ulna and malunited fracture lower end of the right radius. Doctor, who is examined as PW2 opines that the claimant has suffered 30% disability with respect to right lower limb and 45% disability with respect to right upper limb. Looking to the injury sustained by the claimant, the evidence of Doctor PW2 and disability certificate Ex.P9, we are of the view that the total disability of the entire body could be assessed at 20% instead of 10% as assessed by the tribunal. 14. Looking to the injury sustained by the claimant, the evidence of Doctor PW2 and disability certificate Ex.P9, we are of the view that the total disability of the entire body could be assessed at 20% instead of 10% as assessed by the tribunal. 14. It is contended that the claimant was earning a sum of Rs.1,00,000/- per annum from agricultural reward and Rs.6,000/- per month from doing milk vending business, but, no material is placed on record to establish the income of the claimant. In the absence of any material, the tribunal has assessed the income of the claimant at Rs.6,000/- per month notionally. The accident is of the year 2013, normally this court and the Lok Adalath while settling the accident claims of the year 2013 would normally assess the notional income at Rs.7,000/- per month. In this case, in the absence of any material to assess the exact income of the claimant, we assess the notional income of the claimant at Rs.7,000/- per month. 15. As stated above, the claimant was inpatient for more than 30 days. Therefore, we feel that the compensation awarded by the tribunal at Rs.10,000/- towards pain and suffering needs to be enhanced. Thus, we award Rs.15,000/- in addition to Rs.10,000/- awarded under the head of pain and suffering. The tribunal failed to award any compensation under the head of 'loss of amenities'. Looking to the nature, injuries suffered, treatment taken by the appellantclaimant, we deem it to award compensation of Rs.25,000/- towards loss of amenities. The tribunal has not separately awarded any compensation on the head of nourishment, special diet and other incidental charges. We award Rs.10,000/-on the said head. Looking to the injuries sustained by the claimant he would have out of employment for three months. Therefore, he would be entitled for compensation on the head of loss of income during laid up period for three months. The claimant would be entitled for Rs.21,000/- on the said head. We award Rs.10,000/-on the said head. Looking to the injuries sustained by the claimant he would have out of employment for three months. Therefore, he would be entitled for compensation on the head of loss of income during laid up period for three months. The claimant would be entitled for Rs.21,000/- on the said head. Thus, the claimant would be entitled for total compensation as under : 1 Loss of earning capacity Rs.7,000X12X20%X18 3,02,400/- 2 Medical expenses 99,618/- 3 Loss of amenities 25,000/- 4 Pain and suffering 25,000/- 5 Loss of income during laid up period 21,000/- 6 Conveyance, special diet, incidental charges 10,000/- Total 4,83,018/- The claimant is entitled to total compensation of Rs.4,83,018/- as against Rs.2,46,218/- awarded by the tribunal with interest @ 6% p.a. The appeal is allowed in part. The judgment and award of the tribunal is modified by awarding the enhanced compensation of Rs.2,36,800/- with interest @ 6% p.a. from the date of petition till the date of realization. Respondent-Insurance company is directed to deposit the enhanced compensation amount accrued interest within six weeks from the date of receipt of certified copy of this judgment. The deposit and apportionment of the enhanced compensation shall hold good as per the order of the tribunal. Draw the modified award accordingly.