Karnataka High Court
Ramesh @ Ramappa S/O Basappa ... vs Shivappa Basappa Nyamagoudar on 23 May, 2023
Bench: S G Bysgpj, Vapj
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MFA No. 102363 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.102363 OF 2015 (MV-I)
BETWEEN:
SRI. RAMESH @ RAMAPPA,
S/O. BASAPPA NYAMAGOUDAR,
AGE:44 YEARS, OCC:AGRICULTURE/
BUSINESS (NOW NIL),
R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.
...APPELLANT
(BY SRI. CHETAN LIMBIKAI FOR SRI. SANTOSH B. MALAGOUDAR,
ADVOCATES)
AND:
1. SRI. SHIVAPPA BASAPPA NYAMAGOUDAR,
AGE:MAJOR, OCC:AGRICULTURE/BUSINESS,
R/O: YADAWAD, TQ: GOKAK, DIST: BELAGAVI.
(OWNER OF VEHICLE BEARING NO. KA-49/349)
2. THE DIVISIONAL MANAGER,
Digitally signed
by K M UNITED INDIA INSURANCE CO LTD.,
SOMASHEKAR
Location: D.O. AT MARUTI GALLI, BELAGAVI.
DHARWAD
Date: 2023.05.27 (INSURER OF VEHICLE BEARING NO. KA-49/349)
12:04:10 -0700
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADVOCATE FOR R2)
(NOTICE TO R1 HELD SUFFCIENT)
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED: 09.04.2015,
PASSED IN MVC.NO. 307/2013 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER
ADDITIONAL MOTOR ACCDENT CLAMS TRIBUNAL-V BELAGAVI,
ALL0WING THE CLAIM PETTION FOR COMPENSATON AND SEEKNG
ENHANCEMENT OF COMPENSATION.
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MFA No. 102363 of 2015
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
The claimant-injured is before this Court dissatisfied
with the quantum of compensation awarded under
judgment and award dated 09.04.2015 in M.V.C.
No.307/2013 on the file of learned IV Addl. District and
Sessions Judge and Member, MACT, Belagavi (for short,
'Tribunal'), praying for enhancement of compensation.
2. Heard learned counsel Sri. Chetan T Limbikai,
for the appellant and Smt. Preeti Shashank, learned
counsel for respondent-Insurance Company and perused
the appeal papers along with original records.
3. The appellant/claimant filed a claim petition
under Section 166 of the M.V. Act claiming compensation
for the injuries sustained by him in a road traffic accident
that occurred on 02.08.2012 involving Motorcycle bearing
registration No.KA-49/H-8612 & Tipper bearing
registration No.KA-49/349. It is stated that the
MFA No. 102363 of 2015
appellant/claimant was aged 42 years as on the date of
the accident and was doing cement business as well as
agriculture and earning Rs.25 lakhs per annum.
4. On issuance of notice, respondent No.1-owner
of the offending vehicle did not appear and remained
absent. Respondent No.2-Insurance Company appeared
through its counsel and filed statement of objections
denying the entire averments made in the claim petition.
It was further contended that due to negligence on the
part of the offending vehicle, accident took place. Hence,
sought for dismissal of the claim petition.
5. The claimant in support of his case examined
himself as PW1 and examined an Orthopedic Surgeon as
PW2 and got marked documents as Exs.P1 to P13.
Respondent No.2-Insurance Company did not examine any
witness, but got marked insurance policy as Ex.R1. The
Tribunal on appreciation of the material on record awarded
a total compensation of Rs.11,00,330/- with interest at
MFA No. 102363 of 2015
8% per annum from the date of petition till date of
realization.
6. While awarding the above compensation, the
Tribunal assessed the income of the claimant/injured at
Rs.10,000/- per month, applied multiplier of 14 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.
7. Learned counsel for the appellant would
vehemently submit that the income of the claimant
assessed by the Tribunal at Rs.10,000/- per month is on
the lower side, inasmuch as he was doing cement business
as well as agriculture and earning Rs.25 lakhs per annum.
To substantiate the said contention, he places reliance on
Ex.P12-Income Certificate issued by Tahsildar. It is his
submission that PW2-doctor was of the opinion that the
injured/claimant had suffered permanent physical
disability to an extent of 65% to the left lower limb, but
the Tribunal committed an error in assessing the disability
MFA No. 102363 of 2015
of the claimant at 15% to the whole body and it ought to
have assessed the disability on higher side. It is further
submitted that due to the accidental injuries, the
claimant/appellant was an inpatient for a period of three
months. Therefore, he submits that the compensation
awarded under the heads of pain and suffering, loss of
amenities, food & nourishment, traveling, conveyance and
other sundry expenses are also on the lower side. Thus, he
prays for enhancement of compensation.
8. Per contra, learned counsel for respondent
No.2-Insurance Company contends that the quantum of
compensation awarded by the Tribunal is just and proper,
which needs no interference. She submits that to prove
the avocation and earning of the appellant/claimant, no
acceptable or cogent material is placed on record. In the
absence of any material on record, the Tribunal assessed
notional income of the injured/appellant at Rs.10,000/-
per month, which is just and proper. She further submits
that the compensation awarded by the Tribunal on the
MFA No. 102363 of 2015
other heads is just and reasonable, which do not call for
interference at the hands of this Court. Thus, she prays
for dismissal of the appeal.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original
records, the only point that would fall for consideration in
this appeal is, whether the claimant/injured would be
entitled for enhanced compensation in the facts and
circumstances of the case?
10. Answer to the above point is in the affirmative
for the following reasons.
11. The occurrence of the accident that took place
on 02.08.2012 resulting in injuries to the claimant is not in
dispute in this appeal. The claimant is before this Court
seeking enhancement of compensation. The Tribunal has
assessed the income of the claimant at Rs.10,000/- per
month. Even though the claimant has stated that he was
earning Rs.25 lakhs from cement business and from
MFA No. 102363 of 2015
agriculture, he has not placed on record any cogent or
acceptable document to establish his exact income.
Reliance placed on Ex.P12-Income Certificate issued by
Tahsildar cannot be looked into for determination or
assessing the income of the appellant. If the
claimant/appellant claims that he was earning Rs.25 lakhs
per annum, it was necessary for him to place on record
the income tax returns or bank statement. In the absence
of any material on record to establish the avocation and
earning of the appellant/claimant, the Tribunal has rightly
assessed notional income of the appellant/claimant at
Rs.10,000/- per month, which in our view is just and
proper and same is undisturbed.
12. Ex.P10 is the Disability Certificate of the
claimant issued by PW2-Dr. S D Patil, Orthopedic Surgeon,
wherein it is stated that the claimant/injured sustained
comminuted displaced fracture of upper 1/3 tibia with intra
articular extension, fracture of fibula, degloving crush
injury on anterior aspect of left leg from 6cm above left
MFA No. 102363 of 2015
ankle 20 x 10 cm, exposing bones muscles and tendons.
PW2-Doctor in his evidence deposed that the
injured/claimant complains of inability to stand for long
time, inability to walk long distance, unable to squat, walk
on uneven surface and not possible to climb. PW2-doctor
considering the clinical and radiological examinations was
of the opinion that the claimant has got permanent
physical disability amounting to 65% to left lower limb.
However, the Tribunal assessed permanent physical
disability of the claimant at 15% to the whole body, which
in our view is on the lower side. It is settled law that 1/3rd
of disability to a particular limb is to be taken as disability
to the whole body. Thus, we are of the opinion that it is
appropriate to re-assess the disability of the claimant at
22% to the whole body as against 15% assessed by the
Tribunal.
13. There is no dispute with regard to the age of
the claimant i.e. 45 years as per Ex.P3-Wound Certificate.
The Tribunal adopted multiplier of 14 to the age of the
MFA No. 102363 of 2015
claimant. Thus, the claimant would be entitled to
compensation on the head of loss of earning capacity at
Rs.3,69,600/- (Rs.10,000 X 12 (months) x 14(multiplier)
x 22/100 (disability).
14. Further, the Tribunal awarded a sum of
Rs.30,000/- towards loss of earning during laid up
period, which in our view is proper and correct and needs
no interference. The Tribunal awarded a sum of
Rs.60,000/- on the head of pain and suffering, which is on
the lower side. Considering the nature of injuries and also
fractures sustained by the claimant, another sum of
Rs.40,000/- is awarded under the head pain and
suffering in addition to Rs.60,000/- already awarded by
the Tribunal. The Tribunal awarded a sum of Rs.30,000/-
towards loss of amenities. Taking note of the injuries
sustained and also treatment undergone by the claimant,
we are of the view that the compensation under the said
head needs to be enhanced to Rs.75,000/- from
Rs.30,000/-, which would meet the ends of justice.
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MFA No. 102363 of 2015
15. The Tribunal awarded a sum of Rs.6,88,330/-
towards medical expenses as per medical bills produced by
the claimant, which in our view is just and proper and
same is undisturbed. The tribunal awarded a sum of
Rs.40,000/- towards nourishment food, attendant charges,
traveling, conveyance and other sundry expenses, which is
also on the lower side. Due to the fractural injuries, the
claimant was hospitalized for a period of three months.
Hence, we deem it appropriate to enhance the
compensation from Rs.40,000/- to Rs.75,000/- on the
head of nourishment food, attendant charges, traveling,
conveyance and other sundry expenses.
16. Thus, the claimant would be entitled to modified
compensation as under:
Sl.No. Particulars Amount
1. Loss of earning capacity Rs.3,69,600/-
(Rs.10,000 X 12 x 14 x 22/100)
2. Loss of income during laid-up Rs. 30,000/-
period for three months
3. Pain and suffering Rs.1,00,000/-
4. Loss amenities Rs. 75,000/-
5. Medical expenses Rs.6,88,330/-
6. Nourishment food, attendant Rs. 75,000/-
charges, traveling, conveyance
and other sundry expenses
Total Rs.13,37,930/-
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MFA No. 102363 of 2015
17. Thus, the claimant would be entitled to total
compensation of Rs.13,37,930/- as against
Rs.11,00,330/- awarded by the Tribunal.
18. 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 entitled to total compensation
of Rs.13,37,930/- as against
Rs.11,00,330/- awarded by Tribunal.
c) The enhanced compensation amount
will bear 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.
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MFA No. 102363 of 2015
e) Apportionment, deposit and
disbursement shall be made as per
award of the Tribunal.
f) Registry to transmit the records to the
Tribunal forthwith.
g) Draw modified award accordingly.
h) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
