Shamasundar @ Shamsundar vs Sri. Jaishankar
2022 Latest Caselaw 2384 Kant

         IN THE HIGH COURT OF KARNATAKA,
                  DHARWAD BENCH

      DATED THIS THE 15TH DAY OF FEBRUARY 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                         AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            MFA No.100700 OF 2020 (MV-I)

BETWEEN:

SHAMASUNDAR @ SHAMSUNDAR
S/O PRAHLADARAO @ PRAHLADRAO GOTHAGI
AGE: 40 YEARS, OCC: PRIVATE JOB,
R/O KALYAN NAGAR, 1ST CROSS, DHARWAD,
DIST: DHARWAD.
NOW AT TANAJI GALLI, HALIYAL,
DIST: UTTARA KANNADA.
                                           ...APPELLANT

(BY SRI.RAGHAVENDRA A PUROHIT, ADVOCATE)

AND

1.    SRI. JAISHANKAR
      AGE:50 YEARS, OCC:OWNER OF VEHICLE,
      R/O NO.62, RAMESH NAGAR, 8TH CROSS,
      VIBHUTHUPURA, BANGALORE.

2.    IFFCO-TOKYO GENERAL INSURANCE CO. LTD.
      REGD. OFFICE, IFFCO SADAN, C-1,
      DIST:CENTRE SAKET, NEW DELHI,
      BY ITS DIV. MANAGER,
      STRATEGIC BUSINESS UNIT,
      SUDEV PLAZA, 3RD FLOOR, OPP. SHRI LAXMI
                           2



     TEMPLE, DAJIBAN PETH,
     HUBBALLI, DHARWAD.

3.   MS. SUPREME AUTO CARRIERS
     AGE:44 YEARS, OCC:OWNER OF VEHICLE
     R/O H.NO.441, SECTOR-14, GUTGAON,
     HARIYANA, DIST:GURGAON, STATE:HARIYANA.

4.   UNITED INDIA INSURANCE CO. LTD.
     2216, HARDHYAN SINGH ROAD,
     KAROL BHAG, CENTRAL DELHI,
     DELHI, REP. BY ITS DIVSIONAL MANAGER,
     MODI COMPLEX, HOSPETH ROAD BRANCH OFFICE
     SIRSI, TQ:SIRSI,
     DIST:UTTARA KANNADA.
                                      ...RESPONDENTS

(BY SRI. R.R. MANE, ADV. FOR R2)
(SRI. RAJASHEKHAR S ARANI, ADV. FOR R4)
(R1 & R3-SERVED)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 28.6.2019 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDL. MACT, HALIYAL IN MVC NO.361/2016 AND ENHANCE
THE COMPENSATION IN THE INTEREST OF JUSTICE AND
EQUITY.


     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
                               3



                        JUDGEMENT

Though this appeal is listed for admission, with

consent of both learned counsels, matter is taken up for

final disposal.

2. The claimant-injured is before this Court

dissatisfied with the quantum of compensation awarded

under the judgment and award dated 28.06.2019 in M.V.C.

No.361/2016 on the file of the learned Senior Civil Judge

and Member, Addl. MACT, Haliyal (for short, 'Tribunal'),

praying for enhancement of compensation.

3. Heard learned counsel Sri. Raghavendra A

Purohit, for the appellant and Sri. Rajashekhar S Arani, for

respondent No.4-insurance company and perused the

appeal papers.

4. The appellant/claimant filed a claim petition

under Section 166 of the M.V. Act claiming compensation

for the injuries sustained in the road traffic accident that

occurred on 28.08.2015 involving Bus bearing registration

No.KA-51/B.2617 and Lorry bearing registration

No.HR/S.5814. It is stated that the appellant/claimant was

aged about 36 years as on the date of the accident and

was working in Private Company and thereby drawing

salary of Rs.30,000/- per month.

filed statement of objections denying the entire averments

made in the claim petition.

6. The claimant in support of his case examined

PW1 and PW2 and got marked documents as Exs.P1 to

P18, whereas respondents examined RW1 and RW2 and

got marked documents as Ex.R1 to R13. The Tribunal on

appreciation of the material on record awarded a total

compensation of Rs.5,81,037/- with interest at 6% per

annum from the date of petition till date of realization.

7. While awarding the above compensation, the

Tribunal assessed the notional income of the

claimant/injured at Rs.11,033/- per month and assessed

the disability of the injured at 15% to the whole body. Not

being satisfied with the quantum of compensation, the

claimant is before this Court praying for enhancement of

compensation.

8. Learned counsel for the appellant would submit

that the notional income of the injured/claimant assessed

by the Tribunal at Rs.11,033/- per month is on the lower

side and it ought to have assessed the same on higher

side, since the claimant was working in Private Company

and earning Rs.30,000/- per month. He further submits

that PW2-doctor, who has issued disability certificate had

deposed that the injured/claimant had suffered physical

disability to an extent of 25% to the right lower limb and

20% to the left lower limb, but the Tribunal committed an

error in assessing the disability of the claimant at 15% and

it ought to have assessed the disability on higher side,

taking note of the injuries sustained by the claimant. He

further submits that the compensation awarded on the

other heads are also on the lower side. Thus, he prays for

enhancement of compensation.

9. Learned counsel for respondent No.4-insurance

company submits that based on Ex.P14-appointment letter

issued by the Sarco-BPO Private Ltd., wherein it is

mentioned the salary of the claimant at Rs.11,038/- per

month, the Tribunal has rightly assessed the notional

income of the claimant/injured at Rs.11,033/- per month.

He further submits that the disability of the injured

assessed by the Tribunal at the rate of 15% to the whole

body i.e. 1/3rd of 45% to a particular limb is proper and

correct. It is his submission that the compensation

awarded on the other heads are just and proper, which

needs no interference. Thus, he prays for dismissal of the

appeal.

10. The accident which had taken place on

28.08.2015 involving Bus bearing registration No.KA-

51/B.2617 and Lorry bearing registration No.HR/S.5814 is

not in dispute, so also the accidental injuries suffered by

the appellant. It is the contention of the appellant that he

was working as Customer Service Associate at Sarco-BPO

Private Ltd. and earning Rs.30,000/- per month. To

substantiate the said contention, no credible document is

placed on record by the claimant. While assessing the

notional income of the injured/claimant, the Tribunal

placed reliance on Ex.P14-appointment letter, wherein the

salary of the claimant is mentioned as Rs.11,038/- per

month. Based on the same, the Tribunal had rightly

assessed the notional income of the injured/appellant at

Rs.11,033/- per month, which is more than notional

income assessed by this Court while settling the accidental

claims of the year 2015. Thus, income of the

injured/appellant assessed by the Tribunal at Rs.11,033/-

per month needs no interference.

11. As per Ex.P15-disiability certificate issued by

the doctor-PW2, the claimant/injured sustained fracture of

right tibia and fibula and dislocation of right knee. PW2-

Doctor in his evidence deposed that the injured/claimant

suffered disability at the rate of 25% to the right lower

limb and 20% to the left lower limb. It is well settled law

that while assessing the disability to the whole body, 1/3rd

of functional disability of a particular limb of the

injured/claimant has to be taken into account. The

Tribunal taking note of the same and also considering the

evidence of PW2 along with documentary evidence viz.

Ex.P5-Wound Certificate and Ex.P15-Disability certificate

and Ex.P16 & 17-X-ray films, assessed the disability of the

claimant/appellant at 15% to the whole body, which

according to us is proper and correct. Thus, there is no

error committed by the Tribunal in assessing the disability

of the appellant/claimant at 15% to the whole body.

12. Further, taking note of the injuries sustained

by the claimant and hospitalization, the Tribunal has

rightly assessed the compensation on the other heads

which is just and reasonable and needs no interference by

this Court. The appellant/claimant has not made out any

case for enhancement of compensation awarded by the

Tribunal. Hence, we pass the following order.

ORDER The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE JTR