Tippanna S/O Amalappa Durgad vs Ravindra S/O Mallanna Naikodi And ...
2022 Latest Caselaw 1808 Kant

                              1           MFA.No.200940/2014




           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.200940/2014 (MV)

BETWEEN:
TIPPANNA S/O AMALAPPA DURGAD
AGE: 42 YEARS OCC: GOUNDI (MASAN) NOW NIL
R/O: RAJAPUR VILLAGE
TQ: SHAHAPUR DIST: YADGIR-585 223.
                                               ... APPELLANT
            (BY SRI. BHEEMARAYA M.N., ADVOCATE)
AND:


01.     RAVINDRA S/O MALLANNA NAIKODI
        AGE: 46 YEARS OCC: DRIVER/OWNER OF
        AUTO BEARING REG.NO.KA-33-5697
        R/O: KARKAL TQ: SHAHAPUR
        DIST: YADGIR-585 223.

02.     IFFICO TOKIO GENERAL INSURANCE CO. LTD.,
        THROUGH BRANCH MANAGER,
        P.O.127-A BHAVANI ARCADE,
        3RD FLOOR 306, 307, 308 Near Old Bus-Stand
        OPP: BASAVA VANA NEW COTTON
        MARKET HUBLI-580 029.

                                           ... RESPONDENTS

             (NOTICE TO R1 IS DISPENSED WITH
       SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2)
                               2           MFA.No.200940/2014




      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, PRAYING TO
CALL FOR THE LOWER COURT RECORDS IN MVC.NO.156/2010
AND TO MODIFY THE IMPUGNED JUDGMENT AND AWARD
DATED 03.07.2013 PASSED BY THE TRIBUNAL, CIVIL JUDGE
(SR. DN) AND ADDITIONAL MACT-III AT SHORAPUR SITTING AT
SHAHAPUR IN MVC.NO.156/2010 AND TO ENHANCE THE
COMPENSATION.

     THIS APPEAL BEING HEARD AND RESERVED FOR
JUDGMENT ON 18.01.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-

                        JUDGMENT

This is the claimant's appeal seeking enhancement of

the compensation contending that on account of the

accidental injuries suffered by him, his right leg is amputed

from the ankle level and though the Doctor has assessed,

the disability at 80%, but the Tribunal considered it as

50%. The compensation granted under the head pain and

suffering, loss of amenities, attendant charges and loss of

income for laid up period, needs to be enhanced. The

Tribunal has taken monthly income as `.3,000/-, which is

on the lower side and at least it should be taken at

`.5,000/- per month.

02. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

03. It is the case of claimant that on 25.03.2009 at

10.00 a.m., he was proceeding on his motorcycle bearing

Reg.No.KA-33-H-2791 on the Shahapur-Sindagi main

road. He was going towards Shahapur. Near the land of

Ayangouda Tumbagi Rabannalli, the respondent No.1

being the owner cum driver of the Auto-Rickshaw bearing

Reg.No.KA-33-5697 came from the opposite side and

dashed against the motorcycle. In the accident claimant

sustained grievous injuries. After investigation, the charge-

sheet came to be filed against the respondent No.1. The

offending vehicle was insured with respondent No.2 -

insurance company and as such both of them are liable to

pay the compensation.

04. The respondent No.2 - insurance company

has filed written statement denying the entire case of the

claimant.

05. Based on the pleadings the Tribunal framed

the issues.

06. The claimant has examined himself as PW.1

and the Doctor as PW.2. He relied upon Ex.P.1 to 102.

07. The respondents have not led any evidence on

their behalf. The Tribunal has partly allowed the claim

petition granting compensation in a sum of `.4,66,968/- as

detailed below:-

  Sl.                 Heads                     Amount
  No.                                            In Rs.
01.       Towards pain and suffering         50,000/-
02.       Towards loss of amenities          30,000/-
03.       Towards medical bills             1,12,368/-
04.       Towards loss of future income     2,70,000/-
05.       Towards attendant charges            2,300/-
06        Towards loss of earnings during     2,300/-
          period of treatment
          Total                             4,66,968/-





      08.   Admittedly,      the    respondents      have      not

challenged the impugned and judgment and award and

thereby the findings of the Tribunal that accident had

occurred due to the rash or negligent driving by

respondent No.1 and in the said accident the claimant

sustained partial permanent disability and at the time of

accident, the offending vehicle was covered by a valid

policy issued by respondent No.2 - insurance company is

not in dispute.

09. Now, coming to the quantum of compensation

granted in favour of the claimant. In view of the fact that

due to the accidental injuries, the right lower leg of the

claimant is amputed below the ankle level, as a result of

which, he has suffered permanent partial disability is

undisputed. Therefore, the earning capacity of the claimant

is reduced and as such compensation for loss of future

earning is to be granted. In fact the Tribunal has granted

compensation under the said head. However, the Tribunal

has not granted any compensation under the head of loss

of future prospects. In the light of the decision of the

Hon'ble Supreme Court in Pappu Deo Yadav vs Naresh

Kumar, reported in AIR 2020 SC 4424, in case of

permanent partial disability, where there is loss of earning

capacity, loss of future prospects is to be taken into

consideration. Therefore, in addition to granting

compensation under the head of loss of future earnings,

loss of future prospects is to be added.

10. During the course of evidence, the Doctor who

treated the claimant has stated that the claimant has

suffered 80% disability. Though the claimant has stated

that he was doing Massanory work and earning `.9,000/-

per month, he has not led evidence to that effect. Having

regard to the fact that in Schedule-II of the Workmen

Compensation Act, amputation of the lower leg below the

ankle is considered as 50% disability, the Tribunal has

treated the disability of the claimant at 50%. Even though,

it could be said that due to the said amputation, the

claimant cannot pursue the work, which he was doing, at

the same time it cannot be ruled out that, he could

possibly do some other work and earn little less then what

he was earning. Therefore, taking into consideration these

factual aspects, I hold that the disability calculate at 50%

by the Tribunal is correct and based on it, the claimant is

entitled for compensation.

11. In the absence of any evidence to show that

the claimant was earning `.9,000/- per month, the

Tribunal has taken the notional income as `.3,000/- per

month, which is on the lower side. Since, the incident has

taken place on 25.03.2009, as per the Chart prepared by

the Karnataka Legal Services Authority, based on

minimum wages, the income during 2009 is required to be

taken at `.5,000/- per month. At the time of the incident

the claimant was aged at 38 years i.e., below the age of

40 years. Therefore, as per the Pranay Shethi's case,

which is reiterated in Magma's case, in case of private job

or self-employment, for persons below the age of 40

years, 40% is to be added for the purpose of calculating

future prospects. 40% of `.5,000/- comes to `.2,000/-.

Therefore, the income of claimant is to be considered as

`.7,000/-. Since, the claimant was aged 38 years, the

appropriate multiplier is 15. Since, the disability is taken at

50%, for the remaining 50%, claimant is entitled for

compensation under the head of loss of future earnings

and loss of future prospects, which comes to `.6,30,000/-

i.e., `.7,000 x 12 x 15 x 50%.

12. The Tribunal has granted a sum of `.50,000/-

under the head of pain and suffering. Having regard to the

fact that the claimant has suffered amputation of right leg

below the ankle, it is on the lower side and therefore, it is

increase to `.75,000/-. Towards loss of amenities, the

Tribunal has granted `.30,000/-, which appears to be

reasonable.

13. Based on the medical bills, the Tribunal has

granted compensation in a sum of `.1,12,368/- under the

head of medical expenses, which is also correct.

14. Under the head of attendant charges and loss

of earning during the treatment period, the Tribunal has

granted `2,300/- each, which is on the lower side. Since,

the claimant has suffered amputation of lower leg below

the ankle level, it could reasonably be expected that he

was under a treatment for a period of 04 months. At the

rate of `.5,000/- per month, the loss of earnings for 04

months comes to `20,000/- and accordingly, `20,000/- is

granted under the head of loss of earnings during period of

treatment. At the rate of `.100/- per day, for a period of

03 months, the compensation in a sum of `.10,000/- is

granted towards attendance charges,

15. Thus, in all the claimant is entitled for a total

compensation of `.8,77,368/- as against `.4,66,968/-, as

granted by the Tribunal as detailed below:-

                               Awarded by     Enhanced by
             Heads            the Tribunal      this Court
                                 in Rs.           in Rs.
Towards    pain and suffering   50,000/-        75,000/-
Towards    loss of amenities    30,000/-        30,000/-
Towards    medical bills      1,12,368/-      1,12,368/-
Towards      loss of future 2,70,000/-        6,30,000/-
income
Towards attendant charges     2,300/-           10,000/-
Towards loss of earnings      2,300/-           20,000/-
during period of treatment
Total                      4,66,968/-         8,77,368/-

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

ORDER

I. The appeal is allowed in part.

II. The judgment and award in MVC.No.156/2010 passed by the Senior Civil Judge and Additional MACT-III at Shorapur, is modified.

III. The compensation is enhanced to `.8,77,368/-

as against `.4,66,968/- granted by the Tribunal.

IV. The respondent No.2 - insurance company is directed to pay the compensation with interest at 6% p.a. from the date of petition till realization, minus the compensation already paid, within a period of eight weeks from the date of this judgment.

V. The apportionment and deposit of the enhanced compensation shall be as per the order of the Tribunal.

Sd/-

JUDGE KJJ