IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.100531/2016 (MV-I)
BETWEEN:
PRAKASH
S/O BASAPPA MANAGULI
AGE: 43 YEARS,
OCC: BUSINESS,
NOW NIL,
R/O: JAMKHANDI,
DIST: BAGALKOT.
...APPELLANT
(BY SHRI : HARISH S MAIGUR, ADVOCATE)
AND
1 . RANGAPPA
S/O BHIMAPPA GUDADAR,
AGE ABOUT 34 YEARS,
OCC: AGRICULTURE,
R/O: BABALADI,TQ: JAMKHANDI,
DIST: BAGALKOT.
2 . THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE,
VISWANATH PLAZA, 1ST FLOOR,
RANNA CIRCLE, MUDHOL,
DIST: BAGALKOT.
..RESPONDENTS
(By SHRI : G. N. RAICHUR, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
***
2
MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED:30.11.2015,
PASSED IN MVC.NO.94/2010 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., & MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL NO.VI,
JAMKHANDI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT PASSED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 30.11.2015 passed by the Addl. Senior Civil Judge and M.A.C.T. No.VI at Jamkhandi (hereinafter referred as 'tribunal' for short) in M.V.C. No.94/2010 by the claimant. This appeal is premised on the ground of inadequate and meager compensation awarded by the Tribunal.
2. Though this matter is listed for admission, with consent of learned counsel on both sides, matter is taken up for final disposal.
3
3. Parties to the appeal shall be referred to as per their status before the Tribunal.
4. Brief facts of the case are as under:
On 05.09.2009 when the claimant was proceeding from Gopal Chamber to Ambedkar Circle at Jamkhandi by walk on left side of the road along with his friends Suresh Kadakol and Prakash Mathapati and when they came near Jambagi Cross at 9.00pm at that time one Tractor and Trailer bearing Registration No. KA-48 T-213 and 214 came in a rash and negligent manner and in a high speed so as to endanger human life and dashed against the claimant from behind.
5. Due to the accident claimant fell down and sustained grievous injuries. Immediately he was shifted to KLE Hospital, Jamakhandi and thereafter he was shifted to KLE Hospital, Belgaum, where he was admitted as inpatient for one month and thereafter he took treatment in other private hospital.
6. It is the case of the claimant that he has spent more than Rs.1,50,000/- for medical expenses and he 4 require additional amount to undergo further treatment to the injuries sustained by him in the accident.
7. The claimant was hale and healthy prior to accident and was doing clothing and textile business and earning Rs.10,000/- per month. He was the sole bread winner in the family and due to the occurrence of accident and injuries sustained he is unable to speak and cannot do his business. He became partially disabled and the said disability has effected his future earning capacity. Therefore, he has filed a claim petition seeking for compensation for the injuries and for loss of future earning capacity.
8. On notice being issued, respondent No.1 - Owner of the Tractor and Trailer and respondent No.2 - Insurer of the said vehicle have appeared. Respondent No.1 - Owner of the offending vehicle appeared through Counsel and filed a detailed objections.
9. It was pleaded by the respondent No.1 that the injuries were not caused to the claimant due to occurrence of accident and vehicle belonging to 5 respondent No.1 was not involved in the accident and not responsible for causation of the injuries by the claimant. He further pleaded that the driver of the Tractor and Trailer did not possess valid and effective driving license as on the date and time of accident. He further pleaded that since he has insured his vehicle with the respondent No.2 - Insurer and in view of the policy being in force and is covered to his vehicle if any liability is fastened by this Court against the him the same will have to be indemnified by respondent No.2.
10. Respondent No.2 - Insurer also appeared and filed its detailed statement of objections, inter alia denied the occurrence of accident, income, avocation and injuries having been sustained by the claimant and disputed the medical expenses and future medical expenses sought for in the claim petition. It was further pleaded that accident did not occur due to rash and negligent driving of the Tractor and Trailer and in fact, the accident occurred due to the negligence of the claimant himself. It is also pleaded that the driver of the offending vehicle did not possess valid and effective driving license and hence there 6 is breach of terms and conditions of the policy. Hence, he seeks to dismiss the claim petition filed by the claimant.
11. On the basis of pleadings, Tribunal framed relevant issues for consideration.
12. In order to substantiate the issues and to establish the case, claimant got himself examined as PW1 and got marked Ex.P1 to 19. Claimant has also examined Doctor as PW2. On behalf of respondent No.2 - Insurer, its Manager was examined as RW1 and ARTO, Jamkhandi as RW2 and in support of its case got marked Ex.R1 - Copy of the Insurance Policy and Ex.R2 - Extract of driving licence.
13. On the basis of pleadings, evidence both oral and documentary, the tribunal awarded the total compensation of Rs.2,38,000/- along with interest @ 6% p.a. and held respondents No.1 and 2 would be jointly and severally liable to pay the compensation.
14. Being aggrieved by the said Judgment and Award passed by the Tribunal, appellant-insurer is before this Court in appeal.
7
15. Learned counsel appearing for claimant vehemently contends that the judgment and award passed by the Tribunal is erroneous as it is contrary to the material evidence on record and the same is liable to be modified. He further contends that the Tribunal has failed to consider the evidence adduced by Doctor-PW2 with regard to disability to the extent of 25% and having ignored the same Tribunal has committed gross error thereby causing mis-carriage of justice to the claimant.
16. It is also contended by the learned counsel that the Tribunal has committed serious error in not awarding suitable compensation under the head pain and sufferings, loss of income during the laid up period and Tribunal has also committed an error in not awarding any compensation under loss of amenities. So also no amount is awarded towards attendant charges, conveyance and nourishment. On the basis of these submissions he seeks to enhance the compensation and modify the judgment and award passed by the Tribunal.
17. Per contra, learned counsel appearing on behalf of respondent - Insurer contends that the Tribunal 8 has awarded reasonable compensation commensurate to the injuries sustained by the claimant. Hence, interference at the hands of this Court would not be required. He further contends that Tribunal, in fact, assessed excess income in comparison to the Notional Income Chart prescribed by the Legal Services Authority. Therefore, the other compensation awarded under different heads are just and reasonable and the same does not all for interference by this Court.
18. Learned counsel for respondent - Insurer further contends that the Tribunal has rightly assessed the disability at 10% in view of the evidence of the Doctor - PW2, who has adduced evidence and given disability certificate, but he is not the doctor who treated the claimant. Therefore, he contends that the judgment and award passed by the Tribunal in accordance with material evidence placed on record and the same does not call for any enhancement and he seeks to dismiss the appeal.
19. Having heard learned counsel for the appellant and the respondents, the points that would arise for consideration are;
9
(1) Whether claimants are entitled to
enhancement of compensation?
(2) What order?
20. Certain undisputed facts are accident occurred on 05.09.2009, wherein Tractor and Trailer stated above was involved in the accident due to which the claimant suffered grievous injuries and simple injuries to various parts of his body. It is also not in dispute that claimant having been admitted in hospital, having obtained medical treatment and incurred financial expenditure for the same. In order to substantiate these aspects claimant has examined himself and got produced Ex.P1 to P5 being the police records for laying of charge sheet and criminal case against the driver of the offending vehicle. These documents being police records are not questioned, challenged or disputed by the owner of the offending vehicle. No material is produced before the Tribunal before this Court to disprove the veracity of the said documents at Ex.P1 to P6. In view of the same, it can be safely said that Tribunal has rightly come to a conclusion with regard to involvement of vehicle in the accident taken place on 10 05.09.2009, the charge sheet having been laid and criminal proceedings having been proceeded against the driver of the Tractor and Trailer. Hence, the rash and negligent driving by the driver of the Tractor and Trailer and the liability fastened on the owner of the offending vehicle, cannot be disputed and the same is rightly appreciated and does not require to be interfered and it is confirmed by this Court.
21. Now, coming to the age, avocation and income of the claimant, no doubt, the claimant has stated that he was earning Rs.10,000/- per month by doing clothing and textile business. Admittedly, it is seen that there is no material evidence placed before the Court regarding proof of income. In the absence of any proof of income, the Courts are left with no option but to do a guess work and in order to do a standard guess work without variation, the Legal Services Authority has prescribed the notional income chart, wherein the income is stipulated at Rs.5,000/- for the accident occurred in the year 2009. However, tribunal has assessed the income of the claimant at Rs.6,000/- p.m. There is no cross-objection or appeal 11 preferred by the insurance company to counter the said assessment of income made by the tribunal. Hence, I do not wish to interfere with the assessment of income made by the tribunal at Rs.6,000/- and the same is retained.
22. Claimant being 37 years old at the time of accident, the appropriate multiplier applicable would be 15 as held by the Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, which is not seriously disputed. Hence, the same is kept intact and not interfered.
23. The claimant got examined the doctor-PW.2, who has adduced evidence before the Court and has produced Ex.P19, the disability certificate. The wound certificate at Ex.P4 clearly demonstrates the injuries sustained by the claimant, which are six in numbers i.e,
1) Fracture of hard palate;
2) Fracture of ramus of right hemi mandible;
3) Multiple fractures of zygomatic arch, lateral wall of orbit, anterior wall of maxillary antrum on left side maxillary sinus bleed;
12
4) CLW of 4x 1 circumstances over left shoulder;
5) CLW of 2 x 4 circumstances over chin;
6) Abrasions over right thigh and blunt injury to pelvis.
24. The injuries at 1 to 3 are grievous in nature and injuries at 4 to 6 are simple in nature. The doctor has adduced evidence by stating that claimant has suffered 25% permanent disability to the whole body. The grievous injuries are fracture of hard palate; fracture of ramus of right hemi mandible; multiple fractures of zygomatic arch, lateral wall of orbit, anterior wall of maxillary antrum on left side maxillary sinus bleed.
25. On careful analysis of the evidence adduced by the doctor and Exs.P4 and P17, it is apparent that the claimant has sustained more than 3 fractures. The assessment of disability assessed by the doctor is at 25% as permanent disability. The tribunal has reduced said disability to 10%. But no proper reasoning has been assigned as to why the disability is toned down to 10%. While assessing the disability, the functional disability will have to be seen with regard to his avocation of job. In the present case on hand, claimant has sustained more than 13 three fractures, which are stated above. In view of these fractures and other injuries sustained which are stated to be grievous in nature, certainly claimant would be put to certain difficulty in performance of his regular day to day work of doing cloth business whether he is selling cloths sitting at his shop or by moving from one place to other. Tribunal cannot step into the shoes of experts and reduce a disability without there being any proper reasons assigned to it. Unless, the tribunal comes to a proper reason on the basis of which the disability is reduced, same cannot be set to be proper and appropriate as the tribunal cannot sit in the arm chair of an expert to assess the permanent disability or functional disability.
26. In the case on hand, learned counsel for the insurer submits that PW2, the doctor is not the doctor who has treated the patient. He has only made analysis of report submitted to him. However, I do not agree with the assessment of disability made by the tribunal with regard to 10% as in comparison to 25% assessed by the doctor- PW2. However, at least 20% disability would certainly be 14 suffered by the claimant in performance of his day to day work or activities.
27. Learned counsel Shri G.N.Raichur contends that it is the duty of claimant to establish before the Court with regard to the functional disability and loss of income due to the injuries sustained by him in the road traffic accident for assessment of disability. It is his contention that in the present case, no such reason or evidence has been placed on record to show the loss of income in his earning capacity. However, what has to be seen is the injuries sustained are grievous in nature. There would be certainly difficulty for the claimant to do his day to day activities in view of the grievous injuries as stated in Ex.P4 and it would not be possible for the claimant to earn in the same energetic and vigorous manner, as he was able to do prior to occurrence of accident. Accordingly, I deem it appropriate to assess the disability at 20% as against 10% assessed by the tribunal. In view of the above, loss of future earning capacity due to the permanent disability would be as follows;
15
Rs.6,000/- x 12 x 20% x 15 =Rs.2,16,000/- as against Rs.1,08,000/- awarded by the tribunal.
28. Towards medical expenses, the tribunal has awarded Rs.1,00,000/- on the basis of actual bills produced at Ex.P11 by the claimant. I do not wish to interfere in the same, as the same is awarded on the actual basis.
29. Towards pain and suffering, the tribunal has awarded Rs.20,000/-. This Court is of the opinion that the said amount is on the lower side, in view of the 3 grievous injuries having been suffered by the claimant. Accordingly, the same is increased to Rs.40,000/-.
30. Towards food, transport and attendant charges, the tribunal has not awarded any amount separately. Where as the claimant was inpatient for a period of 9 days. Therefore, the claimant would be entitled to Rs.10,000/- under the said head.
31. The tribunal has awarded Rs.10,000/- under the head of loss of income during the laid up period. In 16 view of three grievous injuries suffered by the claimant, it would not be possible for the claimant to immediately get back to the work, even if he is discharged from the hospital. Normally 3 months period is awarded, in view of 9 days having been admitted in the hospital. Therefore, compensation towards loss of income during laid up would be at Rs.6,000/- x 3= Rs.18,000/-.
32. The tribunal has not awarded any amount under the head loss of amenities. I deem it appropriate to award Rs.30,000/- under this head.
33. In view of the same, the claimant is entitled to enhancement of compensation as per the table mentioned hereunder.
Sl.No. Heads. Amount in
(Rs.)
1. Loss of future earnings 2,16,000
(Rs.6,000/- x 12 x 15 x 20% =
Rs.2,16,000/-)
2. Pain and sufferings 40,000
3. Food, transport and attendant 10,000
charges
4.
Loss of amenities in life. 30,000
5. Medical expenses 1,00,000
17
6.
loss of income during the laid up 18,000
period (Rs.6,000 x 3=18,000/-)
Total: 4,14,000
Less: awarded by tribunal: 2,38,000
Enhanced compensation: 1,76,000
34. Accordingly, I pass the following:
ORDER
i) Appeal is partly allowed.
ii) The judgment and award dated 30.11.2015, passed by the Addl. Senior Civil Judge and JMFC and M.A.C.T.No.VI, in MVC No.94/2010 is modified.
iii) The claimant is entitled for a total enhancement of Rs.4,14,000/- as against Rs.2,38,000/- awarded by the tribunal.
iv) All other terms and conditions stipulated by the tribunal shall stands intact and it is not interfered.
v) The respondent-insurer shall pay the enhanced compensation with interest at 6% p.a. from the date of petition till the date of realization, within a period of four weeks from the date of receipt of a copy of 18 this order, to be deposited before the jurisdictional tribunal.
vi) No order as to costs.
SD/-
JUDGE
VK
AM/-