Karnataka High Court
Sri.Shripad S/O Parameshwar Naik vs Sri.Pankaj S/O Maruti Gouda on 6 September, 2022
Bench: S G Pandit, Anant Ramanath Hegde
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MFA No. 100559 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 06TH DAY OF SEPTEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO. 100559 OF 2019 (MV-I)
BETWEEN:
SRI.SHRIPAD S/O PARAMESHWAR NAIK
AGED ABOUT: 27 YEARS, OCC: CLEANER,
R/O: BAGGAON, POST: KALBHAG,
TQ: KUMTA, DIST: KARWAR,
NOW AT BANGUR NAGAR, DANDELI.
...APPELLANT
(BY SRI. GIRISH S HIREMATH, ADVOCATE)
AND:
1. SRI.PANKAJ S/O MARUTI GOUDA
AGED ABOUT: 40 YEARS,
OCC: OWNER, R/O: BAGGAON,
POST: KALBHAG, TQ: KUMTA, DIST: KARWAR.
2. UNITED INDIA INSURANCE CO. LTD.,
BENNE COMPLEX, GIBB
HIGH SCHOOL ROAD, KUMTA.
John ...RESPONDENTS
Doe (BY SRI. SHASHANK HEGDE, ADVOCATE) (R1-SERVED)
Digitally signed by John
Doe
Location: High Court of
Karnataka, Dharwad
Bench Dharwad.
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
Date: 2022.09.12 10:39:06
+0530 MOTOR VEHICLES ACT, 1988 PRAYING TO ENHANCE THE
COMPENSATION AS AGAINST THE JUDGMENT AND AWARD DATED
22.09.2018 IN MVC NO.251/2017 PASSED BY THE SENIOR CIVIL
JUDGE AND ADDL. MACT, HALIYAL IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
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MFA No. 100559 of 2019
JUDGMENT
Though this appeal is listed for admission, with
consent of both learned counsel, matter is taken up for
final disposal.
2. The claimant-injured is before this Court
dissatisfied with the quantum of compensation awarded
under judgment and award dated 22.09.2018 in M.V.C.
No.251/2017 on the file of the learned Senior Civil Judge &
Addl. MACT, Haliyal (for short, 'Tribunal'), praying for
enhancement of compensation.
3. The appellant/claimant filed a claim petition
under Section 166 of the M.V. Act claiming compensation
for the injuries sustained in a road traffic accident that
occurred on 28.06.2016 involving Lorry bearing
registration No.KA-47/7488. It is stated that the
appellant/claimant was aged 27 years as on the date of
the accident and earning Rs.8,000/- per month by working
as Cleaner/Coolie.
MFA No. 100559 of 2019
4. On issuance of notice, respondent No.1- Owner
of the offending lorry remained exparte. Respondent No.2-
Insurance Company appeared and filed statement of
objections denying the averments made in the claim
petition. It was contended that there was no fault on the
part of the driver of offending lorry. It was further
contended that the accident occurred due to sole
negligence of the claimant himself, who was trying to get
down from the lorry before it is stopped. Hence, sought for
dismissal of the claim petition.
5. Before the Tribunal, claimant/appellant
examined himself as PW1 and examined one doctor as
PW2 and got marked documents as Exs.P1 to P14.
Respondents did not examine any witness but marked
insurance policy as Ex.R1. The Tribunal on appreciation of
the material on record awarded a total compensation of
Rs.4,20,920/- with interest at 6% per annum from the
date of petition till date of realization. Not being satisfied
MFA No. 100559 of 2019
with the quantum of compensation, the claimant is before
this Court praying for enhancement of compensation.
6. Heard learned counsel Sri. Girish S Hiremath,
for appellant and Sri. Shashank Hegde, learned counsel for
respondent-Insurer and perused the appeal papers.
7. Sri. Girish S Hiremath, learned counsel for the
appellant/claimant would submit that the income of the
claimant assessed by the Tribunal at Rs.7,000/- per month
is on the lower side, inasmuch as he was working as
Cleaner cum-Coolie and earning Rs.8,000/- per month.
He further submits that the claimant has spent
Rs.3,00,000/- towards medical expenses but the Tribunal
has awarded only Rs.30,945/- under the head medical
expenses which is on the lower side. It is his submission
that the doctor (PW2) who examined the claimant stated
that the claimant/injured suffered 55% disability to the
whole body but the Tribunal committed an error in
assessing disability of the appellant/claimant at 18% which
is on the lower side. Learned counsel would submit that
MFA No. 100559 of 2019
the compensation awarded by the Tribunal on the other
heads is also on the lower side. Thus, he prays for
enhancement of compensation.
8. Sri. Shashank Hegde, learned counsel for
respondent-Insurer submits that the quantum of
compensation awarded by the Tribunal is just and proper,
which needs no interference. He submits that in the
absence of material on record, the Tribunal assessed
notional income of the injured/appellant at Rs.7,000/- per
month which is just and proper. He further submits that
the compensation awarded by the Tribunal on other heads
is proper and correct and it requires no interference. Thus,
he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that
would fall for consideration in this appeal is, whether the
claimant/injured would be entitled for enhanced
compensation?
MFA No. 100559 of 2019
10. Answer to the above point is in the affirmative
for the following reasons.
11. The occurrence of the accident that took place
on 28.06.2016 involving offending lorry bearing
registration No.KA-47/7488 resulting in injuries to the
claimant is not in dispute. The claimant is before this
Court praying for enhancement of compensation. It is the
contention of the appellant that he was working as
Cleaner/Coolie and earning Rs.8,000/- per month. But, no
acceptable or documentary evidence is placed on record to
prove his avocation as Cleaner/Coolie as well as earning of
Rs.8,000/- per month. Taking note of avocation of the
claimant as Cleaner and also year of the accident i.e.
2016, we are of the opinion that it would be appropriate
for us to determine the notional income of the injured at
Rs.8,000/- p.m. as claimed by the claimant.
12. Ex.P12 is the Disability Certificate of the
claimant issued by PW2-Dr. Mahantesh Iranna Hanchinal,
wherein it is stated that the claimant/injured sustained
MFA No. 100559 of 2019
fracture of 3 ribs, 22% disability to the upper limbs, 25%
disability to the right lower limb and 6% to the skull.
PW2-Doctor considering the clinical and radiological
examinations was of the opinion that the claimant has got
permanent physical disability amounting to 61%. Taking
note of the evidence of PW2-Doctor coupled with Ex.P12-
Disability Certificate and also nature of injuries sustained
by the claimant, the Tribunal assessed permanent physical
disability of the claimant to an extent of 18% to the whole
body, which in our view is just and proper and requires no
interference. There is no dispute with regard to the age of
the claimant i.e. 32 years taken by the Tribunal. The
Tribunal adopted multiplier of 16 to the age of the
claimant. Thus, the claimant would be entitled to
compensation on the head of loss of earning capacity at
Rs.2,76,480/- (Rs.8,000 X 12 (months) x 16(multiplier)
x 18/100 (disability).
13. Further, the Tribunal is justified in awarding
Rs.30,945/- towards medical expenses, based on
MFA No. 100559 of 2019
medical bills & prescriptions produced by the claimant,
which in our view is proper and correct and needs no
interference. Tribunal awarded a sum of Rs.13,000/-
towards food, diet and nourishment expenses and
Rs.12,000/- towards conveyance charges, which according
to us is on the lower side. Since the claimant was an
inpatient for a period of 26 days, we deem it appropriate
to award a sum of Rs.50,000/- towards Food, Diet,
Nourishment expenses and conveyance charges as against
Rs.25,000/- awarded by the Tribunal. The Tribunal
awarded a sum of Rs.90,000/- towards pain and
suffering which is just and proper and requires no
interference. Even though the claimant sustained 7
fractures on his chest, left hand, right leg and neck, the
compensation of Rs.20,000/- awarded on the head of loss
of amenities is on the lower side. Therefore, it is just and
proper to award a sum of Rs.50,000/- on the head of
loss of amenities as against Rs.20,000/- awarded by the
Tribunal. The Tribunal awarded a sum of Rs.14,000/-
under the head of loss of income during laid-up period.
MFA No. 100559 of 2019
Since the income of the injured is assessed at Rs.8,000/-
per month, he would be entitled to Rs.24,000/- under
the head loss of income during laid up period for three
months. Thus, the claimant would be entitled to modified
compensation as under:
Sl.No. Particulars Amount
1. Pain & suffering Rs. 90,000/-
2. Medical expenses Rs. 30,945/-
3. Loss of earning capacity Rs.2,76,480/-
(Rs.8,000 x 12 x 16 x 18/100=
Rs.2,76,480/-
4. Loss amenities Rs. 50,000/-
5. Loss of income during laid-up Rs. 24,000/-
period
6. Food, diet, Nourishment expenses Rs. 50,000/-
& conveyance charges
Total Rs.5,21,425/-
14. Thus, the claimant would be entitled to total
compensation of Rs.5,21,425/- as against Rs.4,20,920/-
awarded by the Tribunal.
15. Hence, we pass the following order.
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and award
passed by the Tribunal is modified to the
extent that the claimant would be
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MFA No. 100559 of 2019
entitled to total compensation of
Rs.5,21,425/- as against Rs.4,20,920/-
awarded by the Tribunal.
c) The enhanced compensation amount
shall carry interest at the rate of 6% per
annum from the date of petition till date
of payment.
d) Respondent-Insurance Company shall
deposit the enhanced compensation
amount along with accrued interest
before the Tribunal within a period of six
weeks from the date of receipt of
certified copy of this judgment.
e) Apportionment, deposit and
disbursement shall be made as per
award of the Tribunal.
f) Draw modified award accordingly.
SD
JUDGE
SD
JUDGE
JTR
