Karnataka High Court

Shankar S/O Rajaram Dandge vs Mohammed And Anr on 7 February, 2022

Bench: J.M.Khazi

                            1          MFA.No.201483/2019




          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 07TH DAY OF FEBRUARY, 2022

                         BEFORE

         THE HON'BLE MRS. JUSTICE J.M.KHAZI

               MFA No.201483/2019 (MV)

BETWEEN:

SHANKAR S/O RAJARAM DANDGE
AGE: 35 YEARS OCC: CENTERING WORK
R/O: MAKANPUR
TQ: AND DIST:VIJAYAPUR-586 101.
                                            ... APPELLANT

       (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)

AND:

01.     MOHAMMED S/O BAPU MUJAWAR
        AGE: 45 YEARS OCC: BUSINESS
        R/O: MUNDHEWADI TQ: PANDHARPUR
        DIST: SOLAPUR-413 304.

02.     THE BRANCH MANAGER
        TATA AIG GENERAL INSURANCE
        COMPANY LIMITED
        PENISULA CORPORATE PARK,
        NICHOLAS PIRAMAL TOWER,
        9TH FLOOR, GANAPATRAO KADAM MARG,
        LOWER PATEL, MUMBAI-400 013.

                                         ... RESPONDENTS

          (BY SRI. SUDARSHAN M., ADVOCATE FOR R2
              NOTICE TO R1 IS DISPENSED WITH)
                                   2            MFA.No.201483/2019




      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER

SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988

PRAYING     TO   ALLOW     THIS   APPEAL    AND     ENHANCE     THE

COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY

MODIFYING THE JUDGMENT AND AWARD DATED 08.02.2019

PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL

JUDGE   AND      MEMBER,   MACT       NO.XII, AT   VIJAYAPURA    IN

MVC.NO.1549/2014.


      THIS    APPEAL   BEING      HEARD    AND     RESERVED     FOR

JUDGMENT ON 12.01.2022, COMING ON FOR PRONOUNCEMENT

OF   JUDGMENT,     THIS    DAY,   THE    COURT     DELIVERED    THE

FOLLOWING:-


                           JUDGMENT

This is claimant's appeal seeking enhancement of the

compensation for the personal injuries sustained by him in

a accident motor vehicle accident occurred on 22.04.2014.

02. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

03. The brief facts leading up to filing of the claim

petition and consequent appeal are that on 22.04.2014 at

about 05.00 p.m. the claimant along with Sri. Santosh

Suravase and a child by name Yesh Dange, were traveling

on a motorbike bearing Reg.No.MH-13-W-7012. It was

driven by the claimant slowly and cautiously. However, a

Tractor bearing Reg.No.MH-13-AS-9640 and Trailers

bearing Reg.No.MH-13-J-0340 and MH-13-J-0792 came

from the opposite side, driven by its driver in a high speed

and in a rash or negligent manner and dash against the

motorbike. In the accident, the said Santosh Survase died

on the spot and child had sustained grievous injuries.

04. At the time of accident, the claimant was doing

centering work and earning `.7,500/- per month. On

account of injuries sustained by him, he is unable to

pursue his work and sustained permanent partial disability.

The respondent No.1 being the owner and respondent No.2

being the insurer of the Tractor-Trailer are liable to pay the

compensation.

05. After detailed trial, the Tribunal has granted

total compensation in a sum of `.92,000/- as detailed

below:-

              Heads                       Amount
                                           In Rs.
Injury, pain and sufferings               5,000/-
Medical expenses                         11,450/-
Loss of future income                    61,200/-
Attendant charges                         3,000/-
Conveyance charges                        3,000/-
Food and nourishment                      3,000/-
Loss of amenities                         5,000/-
Total                                    91,650/-
Rounded off to                           92,000/-

06. The claimant has challenged the impugned

judgment and award contending that due to the injuries,

he sustained disability which is calculated at 15% to 20%

of his left arm and the Tribunal has considered it as 5% of

whole body. At least it should have been taken at 7%. He

has claimed his monthly income at `.7,500/- which is also

in accordance with the Chart prepared by the Karnataka

Legal Services Authority, based on minimum wages.

However, the Tribunal has considered his income at

`.6,000/- per month, which should be `.7,500/- per

month. The compensation granted under the heads of pain

and suffering, attendant charges, conveyance charges,

food and nourishment and loss of amenities is also on the

lower side and prays to enhance the same proportionately.

The learned counsel further submitted that even though

the tribunal has taken into account the loss of future

income, the loss of future prospects are not considered

and therefore compensation is to be enhanced to that

extent.

07. Before the Tribunal, the respondent No.1 has

remained ex-parte.

08. The respondent No.2 - insurance company

though admit the coverage of policy of Tractor - Trailer

has disputed that the accident has occurred due to rash or

negligent driving by the driver of the Tractor - Trailer. On

the other hand, it was on the account of rash or negligent

riding of the rider of the motorbike.

09. After detailed enquiry, the Tribunal has

accepted the case of the claimant that accident occurred

due to rash or negligent driving by the driver of the Tractor

- Trailer and in the said accident he has suffered

permanent partial disability and granted the compensation

as stated above.

10. Now, it is to be examined whether the

compensation granted is just compensation.

11. Since, the accident has taken place

22.04.2014, in the absence of specific proof of the income,

the notional income is to be taken into consideration. As

per the Chart prepared by the Karnataka Legal Services

Authority, which is based on minimum wages, during the

year 2014 the notional income comes to `.7,500/- per

month, which is also claimed by the claimant. However,

the Tribunal has taken his notional income at `.5,000/-

which is on the lower side. Therefore, the income is

required to be calculated based on `.7,500/- per month.

12. The evidence of medical officer is to the effect

that the claimant has suffered permanent partial disability

of his left arm to the extent of 15% to 20%. The Tribunal

has taken the disability at 5% of the whole body. Having

regard to the nature of the injuries sustained and the

occupation of the claimant, it would be appropriate and

reasonable to consider the disability at 7% of the whole

body instead of 5%. As held by the Hon'ble Supreme Court

in Erudeya Priya vs. State of Export Transport

Corporation reported in 2020 SCC Online SC 601 and

Pappu Deo Yadav vs. Naresh Kumar and others,

reported in AIR 2020 SCC 4424, even in case of

permanent partial disability where it is affecting the

earning capacity of the injured, future prospects are to be

added. As per the decision of the Hon'ble Supreme Court in

Pranay Sheti's case, which is reiterated in Magma's case

and having regard to the fact that the claimant was less

than 30 years at the time of accident and he was pursuing

private employment, 40% of his income has to be added

to calculate the total loss of earning capacity. If `.7,500/-

per month, is taken into consideration as the notional

income of the claimant, 40% of it comes to `.3,000/-.

Therefore, the total notional income comes to `.10,500/-

per month.

13. Since, the injured was aged 30 years,

multiplier 17 taken by the Tribunal is correct. Taking into

consideration the permanent partial disability of the whole

body of the claimant as 7%, the total loss of future earning

of the claimant comes to `.1,07,100/- i.e., `.10,500 x 12 x

17 x 7%. In view of this, the compensation granted in a

sum of `.61,200/- under the head of loss of future earning

income is on the lower side.

14. Admittedly, the claimant has sustained injury

to left wrist fracture and forearm i.e., fracture of lower end

of radius and ulna. Having regard to this a sum of

`.5,000/- granted under the head of pain and suffering is

on the lower side and it is substituted by `.20,000/-.

However, the medical expenses granted in a sum of

`.11,450/- is based on the medical bills produced by the

claimant and therefore it is correct and proper. On the

same basis, the attendant charges at `.3,000/-,

conveyance charges at `.3,000/-, food and nourishment

charges `.3,000/- is on the lower side and they are

substituted by `.5,000/- each. Similarly, the compensation

granted in a sum of `.5,000/- towards loss of amenities is

also on lower side and it is substituted to `.25,000/-.

15. However, the Tribunal has not granted any

compensation under the head of loss of income during the

laid up period. At the rate of `.7,500/- per month, for a

period of 03 months, the claimant is entitled for

compensation in a sum of `.22,500/- for the laid up period.

In all the claimant is entitled for compensation in a sum of

`.02,01,050/- as against `.92,000/- granted by the

Tribunal as detailed below:-

                            Awarded by       Enhanced by

            Heads           the Tribunal       this Court

                                  In Rs.         In Rs.

  Injury,      pain   and    5,000/-          20,000/-

  sufferings

  Medical expenses          11,450/-          11,450/-

  Loss of future income     61,200/-        1,07,100/-

  Attendant charges          3,000/-           5,000/-

  Conveyance charges         3,000/-           5,000/-

  Food and nourishment       3,000/-           5,000/-

  Loss of amenities          5,000/-          25,000/-

  Loss of income during             -         22,500/-

  laid up period

  Total                     91,650/-        2,01,050/-

  Rounded off to            92,000/-        2,01,000/-

16. To this extent, the award of the Tribunal is

liable to be modified. The Tribunal has granted the interest

at the rate of 9% p.a. without assigning any special

reasons. Therefore, the same is reduced to 6% p.a.

17. Offcourse the respondent No.2 being insurer of

the offending vehicle, is liable to pay the compensation

with accrued interest at the rate of 6% p.a. from the date

of petition till realization.

18. In the result, I proceed to pass the following;

ORDER

I. The appeal is allowed in part.

II. The judgment and award passed by the