Parasappa S/O Hulagappa Narudi vs Smt. Chandawwa W/O Bhimangouda ...
2021 Latest Caselaw 6240 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 16TH DAY OF DECEMBER, 2021

                       BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

              MFA No. 30669/2013 (MV)

BETWEEN

PARASAPPA S/O HULAGAPPA NARUDI
AGE: 29 YEARS, OCC: DRIVER & AGRIL.,
(NOW NIL), R/O ADAVI SOMANAL,
TQ. MUDDEBIHAL, NOW R/AT B.BAGEWADI,
DIST. BIJAPUR
                                         ...APPELLANT

(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)

AND

1.     SMT. CHANDAWWA W/O BHIMANGOUDA
       PATIL @ METI, AGE: 36 YEARS
       OCC: AGRIL., & HH WORK,
       R/O ADAVI SOMANAL, TQ. MUDDEBIHAL
       DIST: BIJAUPR

2.     SMT. GURUBAI B.PATIL @ METI
       AGE: 36 YEARS, OCC: AGRIL. & HH WORK,
       R/O ADAVI SOMANAL, TQ. MUDDEBIHAL

3.   THE BRANCH MANAGER
     UNITED INS.CO.LTD., SANGAM BUILDING,
     SS FRONT ROAD, BIJAPUR
                                    ...RESPONDENTS
(BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R3;
NOTICE TO R1 & R2 IS DISPENSED WITH)
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   THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DT.17.1.2013 PASSED IN
MVC NO.99/2012 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER M.A.C.T. AT BASAVANA BAGEWADI,
PARTLY ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-

                          JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (for short 'M. V. Act') against the

judgment and award dated 17.01.2013 passed in MVC

No.99/2012 on the file of the Senior Civil Judge and

Member MACT-IX, Basavana Bagewadi (for short

'Tribunal').

2. The facts leading up to filing of the present

appeal briefly stated are that, on 22.06.2012, at about

7.30 p.m., on Adavi Somanal to Kyatanadoni village PWD

road, near the land of one Mallapur Garasangi, when the

claimant was returning towards his native place on his

motorcycle, being ridden in a slow manner by the extreme

left side of the road, at that time, a lorry bearing

registration No.KA-28/TA-1744 driven by its driver in a

rash and negligent manner and dashed against the

motorcycle of the claimant, causing grievous injuries. Due

to the accident, the claimant sustained fracture of his right

leg and sustained other severe injuries all over the body.

During the course of treatment at Dr.Shailesh Deshpande

Mathoshree Trauma Fracture and Accident Hospital,

Vijayapur, he underwent operation and amputation of his

right leg above knee, as the same was completely crushed

and he has spent more than `1,50,000/- towards medical

expenses.

3. Thereupon, the claimant has filed a claim

petition under Section 166 of the M.V.Act seeking

compensation of `25,86,000/- on the ground that he was

hale and healthy, aged about 28 years and was earning

`9,000/- per month as a driver of heavy transport vehicle

and on account of amputation of his right leg, he has

suffered 100% permanent disability and he is not able to

carry his work resulting in complete reduction of his

earning ability. That the accident was caused due to rash

and negligent driving of the offending tractor by its driver,

which was insured with respondent No.3, therefore,

respondents are jointly and severally liable to pay the

compensation.

4. Upon service of notice, though respondent

Nos.1 to 3 appeared through their counsel. Respondent

Nos.1 and 2 in the statement of objections denying the

age, occupation and monthly income of the claimant

contended that the accident had occurred on account of

the negligence on the part of the claimant himself and not

on the part of the driver of the tractor. It was contended

that the driver of the tractor was holding driving licence

and was insured with respondent No.3, the compensation,

if any, shall be payable by respondent No.3 - insurance

company.

5. Respondent No.3 - insurance company in its

statement of objections admitted that the insurance policy

had been issued in respect of the tractor in the name of

respondent No.1 and was valid. It denied the age, income

and occupation of the claimant. It was contended that the

claimant himself was careless and negligent in riding his

motorcycle, which resulted in the accident. The petition

was bad for non joinder of necessary party. Hence, sought

for dismissal of the claim petition.

6. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and one Bheerappa

Ningappa Mangyal has been examined as PW.2 and

exhibited 22 documents as Exs.P1 to P22. No witness has

been examined on behalf of the respondents expect

marking the policy of insurance as Ex.R1.

7. The Tribunal after appreciating the evidence of

the parties held that the accident had occurred due to rash

and negligent driving of the offending tractor by its driver

resulting in the claimant sustaining injuries and

consequently held that the claimant is entitled for

compensation of `9,58,005/- with interest at 8% per

annum. Aggrieved by the same, the appellant/claimant is

before this Court seeking enhancement of compensation.

8. Heard the learned counsel for the parties and

perused the records.

9. The learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memorandum

submitted that the Tribunal has erred in assessing the

disability of the claimant only at 70% though he had

suffered 100% functional disability as there was

amputation of right leg above knee. That the accident had

occurred during the year 2012 and the claimant, who was

driver by profession was holding licence to drive the heavy

transport vehicle, therefore, assessment of income at

Rs,4,500/- per month as against `9,000/-, which the

claimant was earning, was on the lower side. That the

Tribunal has erred in not awarding future prospects

considering the age of the claimant and the injuries

suffered by him. That the award of compensation under

other heads is also on the lower side. Hence, sought for

allowing of the appeal.

10. On the other hand, the learned counsel for

respondent No.3 - insurance company justifying the

judgment and order passed by the Tribunal submits that

the claimant has not led in any acceptable evidence

justifying his claim to be the driver of heavy transport

vehicle. She submits that the functional disability of 100%

can be assessed, when it is established that the claimant is

incapable of doing any other work on his own and unless

such fact has been established, the claimant cannot

entitled for 100% disability. With regard to the income,

she submits that though PW.2 has been examined claiming

to be the employer of the claimant, no acceptable evidence

with regard to the employment or with regard to the salary

has been produced. In the circumstances, she submits

that the award of compensation as made by the Tribunal

requires no interference.

11. On a thoughtful consideration of the

submissions made by the learned counsel for the parties,

the only point that arises for consideration is:

"Whether the claimant has made out a case for enhancement of the compensation?"

12. The accident in question involving the tractor

belonging to respondent Nos.1 and 2, which resulting in

grievous injuries to the claimant and that eventual

amputation of his right leg above knee is not in dispute.

Though the insurance company has disputed the

established income of the claimant and also his

employment, it is seen that the claimant has produced his

driving licence at Ex.P21. The said driving licence reveal

that the claimant was capable of driving heavy transport

vehicles. The accident in question admittedly is of the

year 2012. It is not uncommon that a driver holding valid

driving licence to drive a heavy transport vehicle would not

earn anything less than `9,000/- per month as claimed by

the claimant in other words it would be about `300/- per

day. Even in the Workmen Compensation Act the

minimum wages is fixed by the Ministry of Labour and

Employment at `8,000/- per month by notification dated

31.05.2010. Therefore, assessment of income at `9,000/-

per month in the fact and circumstances of this case is just

and proper.

13. The fact that the claimant, who suffered

injuries has undergone amputation of his right leg above

knee is evident from the medical records produced as per

the wound certificate - Ex.P5, discharge card - Ex.P7 and

photograph - Ex.P20. The Tribunal has assessed the

disability of the claimant at 70%. Considering the nature

of avocation of the claimant being a driver of heavy

transport vehicle and for the fact that he having lost his

leg above knee, it can be concluded that the claimant is

not capable of driving any vehicle, much less, the transport

vehicle for his livelihood.

14. The Apex Court in the case of S.Suresh vs.

Oriental Insurance Co., Ltd., & Anr. reported in 2009

DGLS (Soft.) 1246 has assessed the disability of the

claimant therein, who had lost his right leg at 100%. In

the facts and circumstances of the case and considering

the material made available and the age of the claimant,

this Court is of the considered view that the disability be

assessed at 80% instead of 70% assessed by the Tribunal.

This is considering the fact that the claimant having lost

his right leg above knee is deprived of his driving

avocation, which was his source of livelihood. Since the

disability is assessed at 80% and in view of the law laid

down by the Apex Court in the case of Jagdish vs. Mohan

and Others reported in (2018) 4 SCC 571 and in the

case of Erudhaya Priya vs. State Express Transport

Corporation Ltd., reported in 2020 SCC Online SC 601

the claimant is held entitled for future prospects at 40% of

his income. Since the claimant is aged about 28 years,

the proper multiplier applicable is 17. Thus, the claimant

is entitled to compensation of `20,56,320/-

(9,000+40%x12x17x80%) towards loss of future income.

15. The Tribunal has awarded `30,000/- under the

head of loss of amenities. An additional sum of `20,000/-

is awarded by making it `50,000/- instead `30,000/-

awarded by the Tribunal. The compensation awarded by

the Tribunal under other heads is maintained as it is.

Thus, the claimant is entitled to enhanced compensation as

follows:

Heads                 By Tribunal      By this Court
Loss     of  future   6,42,600/-       20,56,320/-
income due to
disability
Loss of amenities     30,000/-         50,000/-
in life, happiness
and frustration
Conveyance            20,000/-         20,000/-
attendants
charges food and
nourishment
Pain and suffering    1,00,000/-       1,00,000/-
Towards artificial    30,000/-         30,000/-
limb
Medical expenses      1,35,405/-       1,35,405/-
Total                 9,58,005/-       23,91,725/-

16. On the enhanced compensation, the claimant

is entitled for interest at 6% per annum instead of 8% per

annum awarded by the Tribunal from the date of claim

petition till its realization. Hence, the above point is

answered accordingly and following:

ORDER

a. The appeal filed by the

claimant/appellant is allowed in part and the

judgment and order of the Tribunal in MVC

No.99/2012 is modified.

b. The appellant/claimant is entitled

for enhanced compensation of `23,91,725/-

instead `9,58,005/- awarded by the Tribunal

together with interest at 6% per annum from

the date of petition till its realization.

c. The respondent No.3 - insurance

company is directed to pay the compensation

within six weeks from the date of receipt of a

certified copy of this judgment.

d. The order regarding deposit and

apportionment made by the Tribunal shall

remain unaltered.

Sd/-

JUDGE Srt