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2022 DIGILAW 1077 (KAR)

Appasao v. Divisional Controller, M. s. r. t. c.

2022-08-16

ANANT RAMANATH HEGDE, SHANKAR GANAPATHI PANDIT

body2022
JUDGMENT Shankar Ganapathi Pandit, J. - Though this appeal is listed for admission, with consent of both learned counsel, matter is taken up for final disposal. 2. The claimant-injured is before this Court dissatisfied with the quantum of compensation awarded under judgment and award dated 14.10.2019 in M.V.C. No. 2219/2018 on the file of the learned II Addl. District and Sessions Judge and Member, MACT, Belagavi (for short, 'Tribunal'), praying for enhancement of compensation. 3. Heard learned counsel Sri. Umesh C Ainapur, for the appellant and Sri. C.V. Angadi, learned counsel for respondent-MSRTC and perused the appeal papers along with original records. 4. The appellant/claimant filed a claim petition under Section 166 of the M.V. Act claiming compensation for the injuries sustained in the road traffic accident that occurred on 08.09.2017 involving Motorcycle bearing registration No. MH-09/CB-9214 & MSRTC Bus bearing registration No. MH-14/BT-3397. It is stated that the appellant/claimant was aged 37 years as on the date of the accident and was working as Driver and earning Rs. 12,000/- per month apart from Rs. 100/- per day as bhatta. 5. On appearance, the respondent-MSRTC filed statement of objections denying the entire averments made in the claim petition. It was further contended that due to negligence on the part of the claimant/injured, accident took place. Hence, sought for dismissal of the claim petition. 6. The claimant in support of his case examined himself as PW1 and examined an Orthopedic Surgeon as PW2 and got marked documents as Exs.P1 to P20, whereas respondent-Corporation examined driver of MSRTC Bus in question as RW1, but no documents are marked. The Tribunal on appreciation of the material on recorded awarded a total compensation of Rs. 1,88,800/- with interest at 9% per annum from the date of petition till date of realization. 7. While awarding the above compensation, the Tribunal assessed the income of the claimant/injured at Rs. 8,000/- per month, applied multiplier of 15 and assessed the disability of the injured at 10% to the whole body. Not being satisfied with the quantum of compensation, the claimant is before this Court praying for enhancement of compensation. 8. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs. 8,000/- per month is on the lower side, inasmuch as he was working as Driver and earning Rs. 12,000/- per month apart from Rs. 8. Learned counsel for the appellant would submit that the income of the claimant assessed by the Tribunal at Rs. 8,000/- per month is on the lower side, inasmuch as he was working as Driver and earning Rs. 12,000/- per month apart from Rs. 100/- per day as Bhatta. He further submits that the Tribunal erred in not awarding any compensation towards future prospects, which the claimant would be entitled to at 25% as held by the Hon'ble Apex Court in the case of Jagdish Vs. Mohan & Others (2018) 4 SCC 571 . It is his submission that PW2-doctor was of the opinion that the injured/claimant had suffered permanent physical disability to the extent of 40% to the right lower limb, but the Tribunal committed an error in assessing the disability of the claimant at 10% to the whole body and it ought to have assessed the disability on higher side, taking note of the injuries sustained by the claimant. He also submits that no compensation has been awarded on the head of loss of amenities. He further submits that the compensation awarded on the other heads are also on the lower side. Thus, he prays for enhancement of compensation. 9. Learned counsel for respondent-Corporation submits that the quantum of compensation awarded by the Tribunal is just and proper, which needs no interference. He submits that to prove the avocation and earning of the appellant/claimant as Driver, no material is placed on record. In the absence of any material on record, the Tribunal assessed notional income of the injured/appellant at Rs. 8,000/- per month which is just and proper. Thus, he prays for dismissal of the appeal. 10. Having heard the learned counsel for the parties and on perusal of the appeal papers along with original records, the only point that would fall for consideration in this appeal is, whether the claimant/injured would be entitled for enhanced compensation? 11. Answer to the above point is in the affirmative for the following reasons. 12. The occurrence of the accident that took place on 08.09.2017 resulting in injuries to the claimant is not in dispute in this appeal. It is the contention of the appellant that he was working as Driver and earning Rs. 12,000/- per month, besides getting Rs. 100/- per day as Bhatta. 12. The occurrence of the accident that took place on 08.09.2017 resulting in injuries to the claimant is not in dispute in this appeal. It is the contention of the appellant that he was working as Driver and earning Rs. 12,000/- per month, besides getting Rs. 100/- per day as Bhatta. The claimant has produced Ex.P19-Extract of Driving License, which shows that the claimant was having license to drive LMV-Transport vehicle. But, no acceptable evidence is placed on record to prove his avocation as Driver as well as earning of Rs. 15,000/- per month including daily bhatta of Rs. 100/-. In the absence of any material on record to establish the avocation and earning of the appellant/claimant, this Court and Lok Adalath while settling the accidental claims of the year 2017, normally would assess notional income of the injured at Rs. 10,250/- per month, taking note of the chart prepared by KSLSA based on various factors including the minimum wage fixed. In the instant case also, in the absence of any material evidence to establish the income of the injured, we are of the opinion that it would be appropriate for us to determine the income of the injured at Rs. 10,250/- p.m. taking note of the income chart prepared by KSLSA. 13. Ex.P11 is the Disability Certificate of the claimant issued by PW2-Dr. Satish D Patil, Orthopedic Surgeon, wherein it is stated that the claimant/injured sustained fracture of right tibia & fibula with displacement and fracture of 3rd & 4th ribs right side. PW2-Doctor in his evidence deposed that the injured/claimant has complains of pain over right leg right side chest with restriction of right knee/ankle movements and inability to run/stand/walk for long/squat/lift weight and difficulty in climbing/stand on right leg. PW2-doctor considering the clinical and radiological examinations was of the opinion that the claimant has got permanent physical disability amounting to 40% to right lower limb. Taking note of the evidence of PW2-Doctor along with documentary evidence viz. Ex.P10-Wound Certificate, Ex.P11-Disability Certificate, Ex.P12-Diagnostic reports and Ex.P13 to P15-X-ray films, we are of the opinion that it is appropriate to re-assess the disability of the claimant at 15% to the whole body as against 10% assessed by the Tribunal. 14. Further, the Tribunal committed an error in not awarding any compensation on the head of future prospects. Ex.P10-Wound Certificate, Ex.P11-Disability Certificate, Ex.P12-Diagnostic reports and Ex.P13 to P15-X-ray films, we are of the opinion that it is appropriate to re-assess the disability of the claimant at 15% to the whole body as against 10% assessed by the Tribunal. 14. Further, the Tribunal committed an error in not awarding any compensation on the head of future prospects. As held by the Hon'ble Apex Court in the case of Jagdish (supra), the claimant would be entitled to an addition of 25% on the head of future prospects. There is no dispute with regard to the age of the claimant i.e. 37 years. The Tribunal adopted multiplier of 15 to the age of the claimant. Thus, the claimant would be entitled to compensation on the head of loss of earning capacity at Rs. 3,45,937.5 (Rs. 10,250 + 25% (future prospects) X 12 (months) x 15(multiplier) x 15/100 (disability), which is rounded off to Rs. 3,45,950/-. 15. Further, the Tribunal awarded a sum of Rs. 800/- towards medical expenses, based on Ex.P17-X-ray bill, which in our view is proper and correct and needs no interference. Tribunal awarded a sum of Rs. 25,000/- on the head of pain and suffering, which in our view is on the lower side and same is enhanced to Rs. 40,000/-. The tribunal awarded a sum of Rs. 16,000/- towards nourishment food, attendant charges and conveyance etc. which is also on the lower side. Since the claimant was hospitalized for about 15 days, we deem it appropriate to award a sum of Rs. 25,000/- on the head of nourishment food, attendant charges & conveyance etc. as against Rs. 16,000/- awarded by the Tribunal. The Tribunal committed an error in not awarding any compensation on the head of loss of amenities, even though the claimant has sustained fracture of right tibia & fibula with displacement and fracture of 3rd & 4th ribs right side. Therefore, it is just and proper to award a sum of Rs. 30,000/- on the head of loss of amenities. The Tribunal awarded a sum of Rs. 3,000/- under the head of loss of income during laid-up period, which in our view is on the lower side. No doubt, the claimant was an inpatient for about 15 days. Therefore, we deem it appropriate to award a sum of Rs. 30,750/- (Rs. 10,250 x 3 months) towards loss of income during laid up period. 16. 3,000/- under the head of loss of income during laid-up period, which in our view is on the lower side. No doubt, the claimant was an inpatient for about 15 days. Therefore, we deem it appropriate to award a sum of Rs. 30,750/- (Rs. 10,250 x 3 months) towards loss of income during laid up period. 16. Thus, the claimant would be entitled to modified compensation as under: Sl.No. Particulars Amount 1. Pain & suffering Rs. 40,000/- 2. Medical expenses Rs. 800/- 3. Loss of earning capacity (Rs.10,250 + 25% (future prospects) x 12 x 15 x 15/100= Rs.3,45,937.5 rounded off to Rs.3,45,950/- Rs.3,45,950/- 4. Loss amenities Rs. 30,000/- 5. Loss of income during laid-up period Rs. 30,750/- 6. Nourishment food, attendant charges and conveyance etc. Rs. 25,000/- Total Rs.4,72,500/- 17. Thus, the claimant would be entitled to total compensation of Rs. 4,72,500/- as against Rs. 1,88,800/- awarded by the Tribunal. 18. Hence, we pass the following order. ORDER a) The appeal is allowed in part. b) The impugned judgment and award passed by the Tribunal is modified to the extent that the claimant would be entitled to total compensation of Rs. 4,72,500/- as against Rs. 1,88,800/- awarded by the Tribunal. c) The enhanced compensation amount shall carry interest at the rate of 9% per annum from the date of petition till date of payment. d) Respondent-Corporation shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. e) Apportionment, deposit and disbursement shall be made as per award of the Tribunal. f) Registry to transmit the records to the Tribunal forthwith. g) Draw modified award accordingly.