Karnataka High Court
The Branch Manager vs Rijwan S/O Shamsuddin Tamboli on 3 January, 2023
Bench: Ravi V.Hosmani
-1-
MFA No. 100943 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 100943 OF 2015 (MV-I)
BETWEEN:
THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO.LTD.
"VISHWANATH PLAZA", 1ST FLOOR
RANNA CIRCLE, MUDHOL,
DIST: BAGALKOT.
NOW REPRESENTED BY ITS
AUTHORIZED SIGNATORY AND
ASSISTANT MANAGER, REGIONAL
OFFICE, SUMANGALA COMPLEX,
LAMINGTON ROAD, HUBBLLI.
...PETITIONER
(BY SHRI S. K. KAYAKAMATH, ADVOCATE)
AND:
ANNAPURNA
CHINNAPPA
1. SHRI RIJWAN S/O SHAMSUDDIN TAMBOLI,
DANDAGAL AGE: 21 YEARS, OCC:AGRICULTURE
AND COOLIE (NOW NIL),
Digitally signed by
ANNAPURNA
CHINNAPPA
R/O: DURADI GALLI, RABAKAVI,
DANDAGAL
Location: High court of
Karnataka, Dharwad
TQ: JAMKHANDI, DIST: BAGALKOT.
Bench, Dharwad
Date: 2023.01.17
11:01:45 -0800
2. SHRI SHIVALINGAPPA K KANKANWADI,
AGE:45 YEARS, OCC:AGRICULTURE,
-2-
MFA No. 100943 of 2015
R/O: KULLALI, TQ: JAMKHANDI,
DIST: BAGALKOT.
(OWNER OF TRACTOR BEARING
REGISTRATION NO.KA-48/TR-6866).
3. KALLAPPA S/O CHANNAGIRAPPA KANKANWADI,
AGE:41 YEARS, OCC:AGRICULTURE,
R/O: KULLALI, TQ: JAMKHANDI,
DIST: BAGALKOT.
(OWNER OF TRAILER BEARING
REGISTRATION NO.KA-48/T-4697 & 4698)
...RESPONDENTS
(BY SHRI HARISH S. MAIGUR, ADVOCATE FOR R1;
SERVICE OF NOTICE TO R2 & R3-SERVED)
***
THIS MFA FILED U/S 173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED:05.01.2015, PASSED IN
MVC NO.227/2012, ON THE FILE OF THE ADDITIONAL SENIOR
CIVIL JUDGE & MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL
NO.VI, JAMKHANDI, AWARDING COMPENSATION OF
Rs.2,88,400/- ALONG WITH THE INTEREST AT THE RATE OF
6% P.A FROM THE DATE OF PETITION TILL THE DEPOSIT.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by insurer against judgment and
award dated 05.01.2015, passed by Additional Senior Civil
MFA No. 100943 of 2015
Judge and MACT No.VI, Jamkhandi (hereinafter referred as
'tribunal' for brevity), in MVC No.227/2012. Claimant has
not filed any appeal.
2. Miss. Anusha, learned counsel appearing for
Shri S.K.Kayakmath, learned counsel for appellant-insurer.
At outset submitted that this appeal by Insurer was on
limited grounds and occurrence of accident due to rash
and negligent driving of insured vehicle and claimant
sustaining injuries in said accident are not in dispute. It
was submitted that during cross-examination, claimant
admitted to have continued as coolie. Therefore, award of
future loss of income was not justified. It was further
submitted that PW.2-doctor stated that he had not treated
claimant nor examined discharge summary while
assessing disability. Further fracture of pubic bone and left
sacrum would not lead to loss of earning capacity of 20%
to whole body and therefore, assessment by doctor was
MFA No. 100943 of 2015
excessive. On said ground, learned counsel for seeks for
reduction.
3. On the other hand, Shri Harish S. Maigur,
learned counsel appearing for respondent no.1 submitted
that admission of claimant to have continued in occupation
would not mean that, he was not suffering from loss of
earning capacity. Further, though PW2 had not treated
claimant but he was qualified Medical Practitioner who had
examined claimant and also referred to disability
certificates issued by doctors, who had treated claimant
and based on same had assessed disability. It was further
submitted that apart from fracture of pubic bone and left
sacrum, claimant had also sustained injuries to urethra
and since accident occurred in year 2011. Notional income
for said period was Rs.6,000/-. But, Tribunal had taken
lesser income of Rs.4,500/- and if compensation is
recomputed, there would be no scope for reduction. He
would also submit that award under other heads was also
MFA No. 100943 of 2015
lower side. On above ground, seeks for dismissal of
appeal.
4. From above submission only point that would
arise for consideration is;
'Whether impugned award calls for
modification?'
5. In so far as admission by claimant to have
continued in occupation is on a stray suggestion that he
was working as coolie with a vegetable vender. In absence
of further suggestion that there was no loss of earning
capacity, reduction of earning capacity cannot be ruled
out.
6. Further, though PW.2 may have not treated
claimant, but he has examined him and assessed disability
by referring to disability certificates issued by doctors, who
had treated him. Therefore, assessment cannot be said to
be unacceptable. PW2 has assessed total limb disability of
40% to whole body. However, Tribunal has taken disability
MFA No. 100943 of 2015
at 20% to whole body. Though on first blush, same may
appear to be slightly excessive but fact that Tribunal had
considered income at Rs.4,500/- which is lower than
notional income for said period as per norms set for
settlement of cases before Lok-Adalat which is Rs.6,000/-,
there would not remain any scope for reduction.
Therefore, on over all consideration award of
Rs.2,88,400/- for fracture of pubic bone and left sacrum of
a 21 year old agricultural coolie does not appear to be
excessive to warrant interference. Hence, point for
consideration is answered in negative.
7. Consequently, appeal is dismissed.
8. Amount in deposit is ordered to be transmitted
to tribunal for payment.
9. Appellant to deposit balance compensation
within six weeks.
Sd/-
JUDGE
AM
