Sri.Vishal Pralhad Kandre vs Sri. Jakeer S/O Rajjak Kazi And Anr
2022 Latest Caselaw 10389 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

           DATED THIS THE 06TH DAY OF JULY 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.202446/2018 (MV)

BETWEEN:

SRI. VISHAL S/O PRALHAD KANDRE,
AGED ABOUT 31 YEARS,
OCC: DRIVER AND AGRICULTURE,
R/O. ELAMAR, MANGEWADI, TQ: SANGOLA,
NOW RESIDING AT IBRAHIMPUR,
NEAR LAXMI TEMPLE, MANAGULI ROAD,
VIJAYPUR-586101.
                                             ... APPELLANT
(BY SRI. S.S.MAMADAPUR, ADVOCATE)

AND:

1.     SRI. JAKEER S/O RAJJAK KAZI,
       AGED ABOUT 42 YEARS, OCC: BUSINESS,
       R/O. DEONI, TQ: DEONI,
       DIST: LATUR-413521.
       (STATE: MAHARASHTRA)

2.     THE DIVISIONAL MANAGER,
       UNITED INDIA INSURANCE CO. LTD.,
       S.S.FRONT ROAD, SANGAM BUILDING,
       DIST: VIJAYPUR-586101.
                                       ... RESPONDENTS
(BY SRI SANJAY M.JOSHI, ADVOCATE FOR R2;
     NOTICE TO R1 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
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ENHANCE THE COMPENSATION AMOUNT BY SUITABLY
MODIFYING THE JUDGMENT AND AWARD DATED 06.07.2018
PASSED BY THE HON'BLE III ADDL. SENIOR CIVIL JUDGE AND
MEMBER MACT-XII, VIJAYPUR IN MVC NO.921/2016.

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

                           JUDGMENT

Though this appeal is listed for admission, with the

consent of the learned counsels appearing on both sides, it is

taken-up for final disposal.

2. The claimant has filed this appeal under Section

173(1) of the Motor Vehicles Act, 1988 ('MV Act' for short)

seeking enhancement of compensation challenging the

judgment and award dated 06.07.2018 passed by the III

Additional Senior Civil Judge and MACT-XII, Vijayapura, in

MVC No.921/2016.

3. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before the

Tribunal.

4. The brief factual matrix leading to the case is that,

on 15.01.2016 at about 5.00 p.m. the petitioner/claimant was

proceeding on motor cycle towards APMC Yard, Sangola to

collect his agriculture produces, from Elamar Mangewadi and

when he reached near Mahuli Hotel on Miraj to Sangola Road,

a tempo bearing Registration No. MH.24/J.6980 came in rash

and negligent manner with high speed from opposite side

and the driver of the said tempo being unable to control the

vehicle, came wrong side and dashed against the motor cycle

of the petitioner, which resulted in accident. Due to the

accident, the petitioner sustained injuries and immediately he

was shifted to Dr. S.L. Gawali's Disha Hospital, Sangola,

where underwent surgical treatment and spent more than

Rs.5.00 Lakhs towards medical expenses. It is claimed that

the claimant was doing agricultural and driving work and was

earning Rs.20,000/- per month and due to accidental injuries,

he was permanently disabled, as his right lower limb above

the knee is amputated. Hence, he filed claim petition under

Section 166 of the MV Act, claiming compensation of

Rs.38,50,000/- from the respondents.

5. Respondent No.1 did not choose to appear before

the Tribunal and contest the matter. However, Respondent

No.2/insurer of the offending vehicle appeared and filed

objections statement denying the allegations and assertions

made in the claim petition. He denied that the accident is

because of actionable negligence on the part of the driver of

the tempo and further it is contended that the driver was not

possessing valid and effective driving licence as on the date of

accident and as such there is breach of policy conditions.

Hence, he would dispute the claim and sought for dismissal of

the claim petition.

6. Having heard the arguments and perusing the

records, the Tribunal has awarded compensation of

Rs.12,60,000/- to the claimant with interest at 9% per

annum. Being dissatisfied with the said judgment and award,

the claimant has filed this appeal seeking enhancement.

7. Heard the arguments advanced of the learned

counsels appearing on both sides and perused the records.

8. Learned counsel for the appellant/claimant would

contend that, the Tribunal has taken the physical disability

suffered by the claimant only to the extent of 50%, which is

on lower side. He would further contend that the notional

income was taken at Rs.7,000/-, which is also on lower side

and 40% of the income towards future prospects is also not

added. As such, the claimant seeks for enhancement of

compensation.

9. Per contra, learned counsel for Respondent

No.2/Insurer would support the judgment and award passed

by the Tribunal.

10. Having heard the arguments and perusing the

records, it is evident that the claimant met with accident

occurred on 15.01.2016 at 5.00 p.m. There is no serious

dispute of the fact that, he suffered amputation of right lower

limb above the knee in the said accident. Further, the

Tribunal has held that the accident is because of the

actionable negligence on the part of the tempo driver and this

finding is also not challenged by respondent No.2/Insurer.

11. The Tribunal after considering the evidence on

record and the Schedule of the Workmen's Compensation Act,

has taken the disability at 50% to the whole body. It is to

be noted here that the claimant was an agriculturist and

driver, and his right lower limb was amputated above knee

and as per the Schedule of Workmen's Compensation Act, the

physical disability to be taken at 80%, as he is unable to do

his avocation as before, since he has suffered amputation of

his right lower limb above the knee. Hence, the Tribunal has

committed an error in taking the disability at 50% only.

Considering the amputation above Knee and avocation of

claimant, though it is 80% disability as per say of Doctor, but

the functional disability would be 100% as claimant cannot

pursue his avocation. Hence, the functional disability is

required to be taken at 100%.

12. Further, the Tribunal has taken the income of the

claimant at Rs.7,000/- p.m. Though there is no material

evidence to show the income of the claimant at Rs.20,000/- as

per the Lok-Adalat chart, this Court is consistently taking the

notional income at Rs.8,750/- in respect of the accidents

occurred during the year 2016. Further, since there is 100%

functional disability and 40% of the income is required to be

added towards future prospects, the monthly income would be

at Rs.12,250/- (Rs.7850 x40%), and considering the age of

the claimant, the multiplier '17' is applicable. Hence, Loss of

future income would work-out to Rs.24,99,000/-

(Rs.12,250x12x17x100%).

13. Further, the Tribunal has awarded Rs.50,000/-

under the head of Pain and Suffering and Rs.50,000/- under

the head of Loss of amenities and the same is just and

appropriate, as such, it does not call for any interference.

14. Further, under the head of Medical Expenses, on

the basis of medical records, the Tribunal has awarded

Rs.4,16,730/-, which is also just and appropriate and as such,

it does not call for any interference.

15. The Tribunal also awarded Rs.10,000/- under each

head of Conveyance, Attendant charges, Food and

Nourishment, ie., Rs.30,000/-, which is also just and proper

and does not call for any interference.

16. Considering the above facts and circumstances,

the claimant is entitled for total compensation of

Rs.30,45,730/- as under:

       Sl.    Particulars                         Amount (RS.)
       No.
        1     Loss of future income                24,99,000/-
        2     Pain and Suffering                      50,000/-
        3     Loss of Amenities                       50,000/-
        4     Medical expenses                      4,16,730/-
        5     Conveyance, Attendant                   30,000/-
              Charges, Food and
              Nourishment
                                Total              30,45,730/-

17. Considering these facts and circumstances, the

appeal needs to be allowed-in-part. Accordingly, I proceed to

pass the following:

ORDER

i. The appeal is allowed-in-part.

ii. The judgment and award dated 06.07.2018 passed by the Principal Senior Civil Judge and MACT-XII, Vijayapura, in MVC No.921/2016 is modified.

iii. The appellant/claimant is held entitled for total compensation of Rs.30,45,730/- as against Rs.12,60,000/- awarded by the Tribunal.

iv. The enhanced compensation of Rs.17,85,730/-

(Rs.30,45,730 - Rs.12,60,000) shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

v. The Respondent Nos.1 & 2 are directed to deposit the enhanced compensation with interest accrued thereon within six weeks from the date of this judgment.

vi. The deposit and disbursement of the enhanced compensation amount shall be as per the order of the Tribunal.

Sd/-

JUDGE

KGR*