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2023 DIGILAW 705 (KAR)

Aneesahemmed v. Mohammed Yusuf

2023-05-25

S.G.PANDIT, VIJAYKUMAR A.PATIL

body2023
JUDGMENT S.G.PANDIT, J. - Though this appeal is listed for Admission, with the consent of the learned counsel for both the parties, the same is taken up for final disposal. 2. The injured claimant is before this Court in this appeal not being satisfied with the quantum of compensation awarded under the judgment and award, dtd. 30/7/2016, passed in M.V.C. No.565/2014 by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Dharwad (for short, 'the Tribunal'). 3. Heard learned counsel Sri. S.L.Linganagoudar for Sri. Harish S.Maigur, for the appellant-claimant, and learned counsel Sri. Suresh S.Gundi, appearing for respondent No.2-insurance company. 4. The appellant-claimant filed a claim petition under Sec. 166 of the Motor Vehicles Act, 1988 claiming compensation for the accidental injuries sustained by him in a road traffic accident that occurred on 15/12/2013 involving Mahindra Xylo Car bearing registration No.KA25/P-6367. It was stated that by the claimant that he was aged 35 years as on the date of the accident and he was earning Rs.50, 000.00 per month from his transport business and used to contribute to the maintenance of his family. 5. On service of notice, the respondent-insurance company appeared and filed its written statement denying the allegations that the accident occurred due to rash and negligent driving of the offending vehicle. The respondentinsurance company also contended that the driver of the offending car was not holding a valid and effective driving licence as on the date of the accident. 6. Before the Tribunal, the claimant got examined himself as P.W.1, and examined a doctor viz., Dr. Duresh Duggani, as P.W.2, apart from marking eleven documents as Exs.P.1 to P.11. No evidence was led on behalf of the respondents. The Tribunal based on the material on record, awarded a total compensation of Rs.8, 46, 200.00 on the following heads: While granting the above compensation, the Tribunal has assessed the income of the appellant-claimant at Rs.6, 000.00 per month and assessed the total physical disability at 40%, adopted the multiplier 15' taking the age of the appellant-claimant at 39 years. The appellantclaimant not being satisfied with the quantum of compensation is before this Court seeking enhancement. 7. Learned counsel, Sri. S.L.Linganagoudar, for the appellant would submit that the income of the injured claimant assessed by the Tribunal at Rs.6, 000.00 per month is on the lower side. The appellantclaimant not being satisfied with the quantum of compensation is before this Court seeking enhancement. 7. Learned counsel, Sri. S.L.Linganagoudar, for the appellant would submit that the income of the injured claimant assessed by the Tribunal at Rs.6, 000.00 per month is on the lower side. He submits that the claimant was earning Rs.50, 000.00 per month from his transport business, and because of the injuries suffered by him in the accident, the appellant-claimant cannot carry on his transport business effectively as he is not able to drive the vehicle. Thus, he submits that the Tribunal, without taking note of the evidence of the claimant, has assessed the income at Rs.6, 000.00 per month which is on lower side. Thus, he prays for reassessing the income on the higher side. 8. Learned counsel for the appellant-claimant would submit that the Tribunal erred in assessing the whole body disability at 40% without looking to the evidence of P.W.2, the doctor. He further submits that the injuries suffered by the appellant-claimant would not permit the claimant to drive the vehicles and as such, the Tribunal ought to have assessed the total whole body disability at 100%. Learned counsel would also submit that the Tribunal erred in taking the age of the appellant as 39 years ignoring the disability certificate-Ex.P.9 which indicates the age of the injured claimant as 35 years. Learned counsel would also submit that the claimant was inpatient for four days and having regard to the injuries suffered, the compensation awarded on other heads is on the lower side. Thus, he prays for allowing the appeal and enhancing the compensation. 9. Per contra, Sri. Suresh S. Gundi, learned counsel appearing for respondent No.2-insurance company, would submit that the compensation awarded by the Tribunal is just and proper and the same needs no interference. Learned counsel would also submit that though the claimant states that he was carrying on transport business and earning Rs.50, 000.00 per month from the said business, no material is placed on record to prove the transport business carried on by him as well as the earnings from the said business. Learned counsel would also submit that the Tribunal has rightly taken the age of the claimant at 39 years and the multiplier 15. Learned counsel would also submit that the Tribunal has rightly taken the age of the claimant at 39 years and the multiplier 15. He submits that the wound certificate at Ex.P.5 indicates the age of the appellant-claimant at 39 years which is taken note of by the Tribunal. Learned counsel would further submit that taking note of the treatment taken by the claimant and that the claimant-appellant was inpatient for four days, the compensation awarded on other heads are sufficient and needs no interference. Thus, he prays for dismissal of the appeal. 10. Having heard the learned counsel for the parties and on perusal of the memorandum of appeal and the Trial Court Records, the followings points would arise for consideration: i) Whether the Tribunal is justified in assessing the income of the appellant at Rs.6, 000.00 per month? ii) Whether the claimant would be entitled for enhancement of compensation? 11. The answers to the above points would be in the negative and affirmative for the following reasons: (a) The accident that occurred on 15/12/2013 involving Mahindra Xylo Car bearing registration No.KA-25/P-6367 and the accidental injuries suffered by the appellantclaimant is not in dispute, in this appeal. In the accident, the claimant has suffered following injuries: 1. Cervical spine injury 2. Fracture dislocation C5-C6 3. Tramumatic Disc prolapse. 4. Quadriparasis cervical spine The claimant has taken treatment for the above injuries and he was an inpatient for four days. (b) The Tribunal while granting compensation has assessed the income of the claimant at Rs.6, 000.00 per month as against Rs.50, 000.00 per month claimed by the appellant-claimant. The claimant has not placed any material much less cogent material to establish his avocation as well as his income. The claimant states that he was running transport business, but he has not placed even a piece of paper to establish his avocation and the earnings from the said avocation of transport business. In the absence of any cogent material to establish the avocation and income, the Tribunal has assessed the income of the claimant notionally at Rs.6, 000.00 per month. However, the same is on the lower side. This Court and Lok-Adalat, while settling the accidental claims of the year 2013, would normally assess the notional income at Rs.7, 000.00 based on the Chart prepared by the Karnataka State Legal Services Authority. However, the same is on the lower side. This Court and Lok-Adalat, while settling the accidental claims of the year 2013, would normally assess the notional income at Rs.7, 000.00 based on the Chart prepared by the Karnataka State Legal Services Authority. Therefore, we assess the income of the injured appellant-claimant at Rs.7, 000.00 per month. (c) Perusal of Ex.P.9 issued by the doctor-P.W.2 would indicate that the doctor has certified that the appellantclaimant suffers from total physical disability of 40%. The Tribunal, taking note of the evidence of P.W.2 as well as the disability certificate at Ex.P.9, has rightly assessed the whole body disability at 40%. It is the contention of the learned counsel for the appellant that the claimant was running transport business and because of the injuries suffered the claimant would not be in a position to drive the vehicle and carry on his transport business and, as such, the total physical disability has to be assessed at 100%. However, the claimant has not placed on record any material to show that he was running transport business, nor has placed on record the driving licence to show that he too was driving the vehicle. Thus, we hold that the claimant has suffered total physical disability to an extent of 40%. (d) The Tribunal has assessed the age of the claimant at 39 years. Ex.P.5 is the wound certificate which indicates the age of the claimant at 39 years, whereas the disability certificate at Ex.P.9 indicates the age of the appellantclaimant at 35 years. No other independent material or document is placed on record by the appellant-claimant to establish his age. The Tribunal has taken note of the age mentioned in the wound certificate (Ex.P.5) and assessed the age of the claimant at 39 years which needs no interference. (e) The appellant was inpatient for only four days. Taking note of the treatment taken, the evidence of P.W.2-doctor and the fact that the claimant was inpatient for four days, we are of the view that the compensation awarded by the Tribunal on various other heads, except under the heads of "loss of future income" and "loss of income during laid up period", is just compensation, which needs no interference. (f) Since the income of the appellant-claimant is reassessed at Rs.7, 000.00 per month, and since the total physical disability assessed at 40% and the multiplier 15' adopted by the Tribunal is not interfered with, the appellant-claimant would be entitled to "loss of future income" at Rs.5, 04, 000.00 [Rs.7, 000.00 x 12 x 15 x 40%]. (g) The Tribunal has awarded a sum of Rs.30, 000.00 towards "loss of income during laid up period" by taking the income at Rs.6, 000.00 per month for five months. Since the income is now reassessed at Rs.7, 000.00 per month, the appellant-claimant would be entitled to a sum of Rs.35, 000.00 under aforesaid head. 12. On reassessment, the claimant would be entitled for enhanced compensation as under: Thus, the claimants would be entitled to total compensation of Rs.9, 23, 200.00 as against Rs.8, 46, 200.00 awarded by the Tribunal. 13. Hence, we pass the following: ORDER a) The above appeal is allowed in part. b) The impugned judgment and award of the Tribunal is modified to the extent that the claimants are entitled to total compensation Rs.9, 23, 200.00 as against Rs.8, 46, 200.00 awarded by the Tribunal. c) The enhanced compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization. d) The respondent No.2-Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment. e) Apportionment, deposit and disbursement of the enhanced compensation shall be made as per the award of the Tribunal. f) Draw modified award accordingly. Registry to transmit the records to the Tribunal forthwith. No order as to costs.