Shri Vishnu S/O. Dashrat ... vs Sri Saleem Shafiulla Walkar And ...
2023 Latest Caselaw 321 Kant

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 5TH DAY OF JANUARY, 2023

                         PRESENT

     THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

                            AND

 THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

     MISCELLANEOUS FIRST APPEAL NO.202041/2016(MV)

BETWEEN:

Shri. Vishnu S/o. Dashrat Hipparkar,
Aged about: 23 years, Occ: Cleaner (Now Nil),
R/o. Singanalli, Tq: Jath, Dist: Sangli,
Now at Arakeri Village,
Tq. & Dist: Vijaypur-586101.
                                                ... Appellant

(By Sri S.S.Mamadapur, Advocate)

AND:

1.    Sri. Saleem Shafiulla Walkar,
      Age: 43 years, Occ: Transport Business,
      R/o. Ameer Complex, Pune, Bangalore,
      Shiroli Pulachi, Tq: Hatkangale,
      Dist: Kolhapur, Maharashtra-416122.
                                             MFA No.202041/2016
                                2




2.   The Branch Manager,
     New India Assurance Co. Ltd.,
     S.S.Front Road, Vijaypur-586101.
                                             ... Respondents
(By Sri Sanjay M.Joshi, Advocate for R2:
R1 is served)

     This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to enhance the compensation
amount payable to him by suitably modifying the judgment
and award dated 27.08.2016 passed by the learned III Addl.
District Judge and MACT-IV, Vijaypur, in MVC No.1791/2013,
in the interest of justice and equity.


     This appeal coming on for hearing, through physical
hearing/video conference, this day T.G. Shivashankare
Gowda, J., delivered the following:


                          JUDGMENT

In this appeal the appellant has challenged the

judgment dated 27.08.2016 passed in MVC No.1791 of 2013

on the file of the III Additional District Judge and MACT IV,

Vijayapura (Hereinafter referred to as 'Tribunal' for short).

MFA No.202041/2016

2. The parties will be referred with respect to their

status before the Tribunal for the sake of convenience.

3. Briefly stated, the facts are that, the petitioner has

suffered severe injuries in a road accident that took place on

30.07.2013 at Yellu Fata on Pune-Bengalore NH-4 road at 6-

30 hours, as cleaner of the Lorry bearing registration No.MH-

09/BC-4828, hit on the hind portion of the Container Truck

bearing registration No.KA-51/B-1501. Due to crush injury

his right leg was amputated below knee under hospitalization

for 24 days. He claimed compensation of Rs.30,00,000/-. He

pleaded that he was aged 20 years, as cleaner in the lorry

earning Rs.10,000/- per month. The claim was opposed by

the Insurance Company. The Tribunal awarded Rs.1,87,800/-

with 6% interest.

4. The petitioner has pleaded inadequacy in the

compensation awarded by the Tribunal. Income taken at MFA No.202041/2016

Rs.4,500/- is on lower side, inspite of 60% disability suffered,

Tribunal has taken only 15%, medical expenses was not

considered, loss of amenities, sufferings and loss of life

expectancy was ignored and less amounts have been

awarded under different heads.

5. According to the learned counsel for petitioner, the

injured was earning Rs.10,000/- per month, medical evidence

assessed 60% whole body disability, pecuniary and non-

pecuniary heads were not considered, lesser is the award

under different heads and accordingly he sought for re-

assessment and enhancement.

6. Per contra, learned counsel for Insurance

Company though supported the impugned judgment

contended that percentage of disability assessed, income

taken, amount granted towards pain and sufferings and loss

of disability is correct, there is no proof of money spent MFA No.202041/2016

towards treatment, and nominal amount may be granted

towards other heads.

7. We have given our anxious consideration to the

arguments addressed on behalf of the parties and perused

the records.

8. As seen from the impugned judgment, there is no

dispute as to the accident, cause of the accident, injury

sustained by the petitioner on account of accident and his

entitlement to claim the compensation. It is also noticed that

the Tribunal has taken income at Rs.4,500/-, assessed whole

body disability at 15%, awarded Rs.40,000/- towards pain

and sufferings, Rs.1,45,800/- towards loss of income due to

disability and Rs.2,000/- towards conveyance.

9. The medical records such as Ex.P.6 wound

certificate, Ex.P11 entire case sheet, Ex.P12 X-rays and MFA No.202041/2016

Ex.P13 disability certificate along with evidence of PW.2

Dr.Vijay Bhimarao Patil, Orthopedic Surgeon who treated the

petitioner at CPR Hospital at Kolhapura and PW.3

Dr.S.S.Nagathan, Orthopedic Surgeon of Government District

Hospital, Vijayapura who issued the disability certificate point

out due to crush fracture of right leg it was amputated below

knee resulting 60% disability. The Tribunal assessed whole

body disability at 15%, which has no rationale. Even in the

absence of medical evidence the Tribunal can assess the

percentage of disability with reference to schedule under

Workmen Compensation Act and also the guidelines issued

by the Government of India that amputation of a leg lower

1/3rd the peremanenet disability is 60%. Hence we assess the

whole body disability at 60%. In the absence of proof of

expenses towards medical expenses and incidental expenses

the Tribunal is required to make probable assessment on

these expenses, we do not find sound reasons in the finding MFA No.202041/2016

recorded by the Tribunal. Compensation assessed by the

Tribunal under different heads is on the lower side and not

proportionate the gravity and nature of the injury, and it

needs modification.

10. For determining the amount of compensation for

loss of income, the most relevant factor, is the income of the

injured. Admittedly there is no proof of income, but the

avocation of the petitioner as cleaner in the lorry in question

is not dispute. The accident was on 30-07-2013, the notional

income is not less than Rs.7,000/- at relevant point of time.

11. By applying the principles laid down in National

Insurance Company Limited vs. Pranay Sethi and

Others -2017 ACJ 680 future prospects should be taken as

40% for age below 40 years. For the age of 20, applicable

multiplier in view of the principles laid down in Sarla Verma

v. DTC- (2009)6 SCC 121, is '18'.

MFA No.202041/2016

12. If all these factors are taken into consideration the

assessment of compensation to the injured is: Towards 1.

Pain and Suffering Rs.50,000/-, 2. Loss of Amenities and

discomforts Rs.50,000/-, 3. Medical expenses of Rs.25,000/-,

4. Attendant charges Rs.10,000/-, 5. Food and Nourishment

Rs.5,000/-, 6. Conveyance charges Rs.5,000/-, 7. Loss of

income during laid up for 6months Rs.42,000/, 8. Loss of

income due to disability at Rs.12,70,080/-(7,000/-

+2,800(40% future prospectus)=9,800 x 12 x 18 x 60%)

and 9. Future medical expenses towards limb Rs.10,000/-. In

all Rs.14,67,080/- as against Rs.1,87,800/- an enhancement

of Rs.12,79,280/-, which is the just compensation to which

the petitioner is entitled. The appeal filed by the petitioner

deserves to be allowed accordingly.

13. In the result, the following:

ORDER

The appeal is allowed in part.

                                                    MFA No.202041/2016





             The   judgment      and   award      passed    by   the

       Tribunal is modified.


             The    petitioner    is   entitled     to     enhanced

compensation of Rs.12,79,280/- with interest at the rate of 6% per year.

Rest of the judgment and award of the Tribunal is kept intact.

The 2nd respondent/Insurance Company is directed to satisfy the award within 8weeks from the date of receipt of certified copy of this judgment.

Office is directed to transfer the amount if any in deposit, to the Tribunal, forthwith and also transmit the records.

Sd/-

JUDGE

Sd/-

JUDGE SBS*