Karnataka High Court
The Branch Manager vs Omgir S/O Rameshgir Goswami And Anr on 6 February, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2024:KHC-K:1329-DB
MFA No. 200232 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO. 200232 OF 2020 (MV-I)
BETWEEN:
THE BRANCH MANAGER,
RELIANCE GEN. INS. CO.LTD,
3RD FLOOR, ASIAN PLAZA,
TIMMAPURI COLONY, MAIN ROAD,
KALABURAGI. (NOW REPRESENTED BY
AUTHORIZED SIGNATORY, HUBLI)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. OMGIR S/O RAMESHGIR GOSWAMI,
AGE: 27 YEARS, OCC: AGRIUCLTURE
AND BLASTING WORK, NOW NIL,
R/O DHANNUR (K),TQ: BASAVAKALYAN,
Digitally signed
by RAMESH
DIST: BIDAR-585401.
MATHAPATI
Location: HIGH
2. DAYANAND S/O VALMIKI JAMADAR,
COURT OF
KARNATAKA
AGE: MAJOR, OCC: BUSINESS AND OWNER OF
MAHINDRA MAXIMO VEHICLE BEARING NO.
KA-56/1184, R/O SHIVPUR VILLAGE,
TQ: BASAVAKALYAN, DIST: BIDAR-585401.
...RESPONDENTS
(BY SRI. SHAMBUING S. SALEMATH, ADVOCATE FOR R1;
NOTICE T O R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO ALLOW THE ABOVE APPEAL BY SETTING ASIDE
THE IMPUGNED JUDGMET AND AWARD DATED 31.10.2019 IN
MVC NO.501/2018 PASSED BY THE II ADDL.DISTRICT AND
SESSIONS COURT AND ADDL.MACT, BIDAR, SITTING AT
BASAVAKALYAN.
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NC: 2024:KHC-K:1329-DB
MFA No. 200232 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant, who is the Insurer of Mahindra Maximo
bearing registration No. KA-56/1184 [the offending vehicle]
at the relevant time, is aggrieved by the judgment and award
dated 31.10.2019 in MVC No.501/2018 on the file of the II
Additional District and Sessions Judge, Bidar, sitting at
Basavakalyan [for short 'the Tribunal']. The Tribunal, by the
impugned judgment and award, has granted to the first
respondent, who is injured in a road accident on
21.08.2018, a total sum of Rs.26,81,000/- along with
interest @ 9% p.a. from the date of petition till the date of
deposit under the following heads:
Sl. Compensation
Different Heads
No. Amount
1 Loss of future earning Rs.25,09,200/-
2 Medical Expenses Rs.81,712/-
3 Laid up period expenses Rs.60,000/-
4 Pain and suffering Rs.10,000/-
5 Conveyance, nutritional food Rs.10,000/-
6 Loss of amenities Rs.10,000/-
Total Rs.26,80,912/-
Rounded off to Rs.26,81,000/-
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2. There is no dispute that the first respondent on
21.08.2018, while he was returning from Humanabad on
Rajol-Basavakalyan road and when he was near
Narayanpura Kitta Cross, met with an accident involving the
offending vehicle viz., Mahindra Maximo bearing registration
No. KA-56/1184, and consequentially, the first respondent
has suffered fracture of right femur. It is also not in dispute
that the first respondent has undergone surgery with
Vishwekar Hospital, Omerga, Maharashtra.
3. The first respondent to establish his income and
the disability has examined himself and Dr. Sachin
Vishwekar as PW.1 and PW.2 respectively, and he has
marked Exs.P1 to P21, which include discharge card,
medical bills and his passport as also the employment card.
The first respondent has asserted that he was working as a
Blast Painter in United Arab Emirates for a long period of
time and that he had returned in the month of July 2018 for
a month holiday when he met with the accident. Dr. Sachin
Vishwekar has spoken about the permanent disability
suffered by the first respondent because of the injuries, and
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he has stated that the first respondent has suffered 41%
disability of the right limb. The Tribunal, in the light of this
evidence, has taken the disability at 41% and computed loss
of future income taking the first respondent's income as
Rs.30,000/- per month.
4. Smt. Preeti Patil Melkundi, the learned counsel
for the appellant, submits that the Tribunal could not have
taken the income at Rs.30,000/- per month in the absence
of any document to show that the first respondent was
actually earning such income, and in fact, the learned
counsel submits that the documents marked as Exhibits do
not show that the first respondent was indeed in
employment as a blast painter with any particular entity in
United Arab Emirates. As regards the disability, the learned
counsel submits that Dr. Sachin Vishwekar is categorical
that the fracture has united and that the disability of the
right lower limb is 41% and that the Courts have always
determined functional disability at 1/3rd of the disability,
and as such, the disability could not have been taken at
more than 13%.
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5. Sri. Shambuling S. Salemath, the learned
counsel for the first respondent, on the other hand, relying
upon the original of the passport [which is now produced for
this Court's comparative reading] submits that the first
respondent had returned to India in the month of July 2018
and though the Visa was valid up to 29.09.2019, the first
respondent has not been able to go back because of the
disability. On the evidence as regards the first respondent's
employment, the learned counsel relies upon the
"access pass" issued to the first respondent in the United
Arab Emirates as "a blast painter" and the training
identification card.
6. This Court, in the light of the entries in the
passport and the employment document, [the originals of
the employment documents are also furnished for
comparative reading] must opine that the first respondent
has established that he was indeed working abroad as a
blast painter i.e., as a skilled worker, but there is no proof of
actual income. In the case of accidents in the year 2018, the
notional income is taken at Rs.11,750/- and if the first
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respondent was employed abroad and as a skilled worker, a
sum of Rs.30,000/- would not be an exaggerated amount to
justify interference, and as such, there can be no
interference on this ground.
7. However, this Court must interfere with the
percentage of disability. Dr. Sachin Vishwekar, who has
treated the first respondent has been examined on
commission, has stated that the fracture is united and that
he has not done any skin grafting and he has assessed the
disability of the lower limb at 41%. This assessment would
only be indicative, and based on this assessment, the
Tribunal as well as this Court must assess the functional
disability, and indeed, in typical cases the functional
disability is taken at 1/3rd of the disability of a particular
limb. In the present case, the evidence is that the first
respondent was working as a blast painter abroad, and even
though he had the benefit of visa entry for the period beyond
the date of the accident, he has not been able to return. If
the first respondent was a skilled worker and has not been
able to continue his vocation, these circumstances would
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demonstrate a case which would not be typical and there
must be just assessment of the functional disability to grant
reasonable compensation.
8. This Court is of the considered view that in the
peculiarities of this case 20% would be reasonable as
against 41%. If the loss of future earning is computed
accordingly the first respondent will be entitled to only a
sum of Rs.12,24,000/- as against the sum of
Rs.25,09,200/- awarded by the Tribunal and there must be
modification in this regard. The computation of loss of
future income is as follows:
Loss of future income because of permanent
disability
Notional monthly income Rs.30,000/-
Annual income Rs.3,60,000 /-
Total income and multiplier Rs.61,20,000/-
Percentage of disability 20%
Loss of future income Rs.12,24,000/-
because of permanent
disability
The Tribunal has awarded compensation on other heads just
in a reasonable manner and this must be one of the factors
to be considered in examining the appellant's grievance as
NC: 2024:KHC-K:1329-DB
against grant of interest at 9%. This Court is of the
considered view that neither there must be change in the
amount under the other heads or in the rate of interest. The
Tribunal's impugned judgment and award is modified
holding that the first respondent is entitled for a total sum of
Rs.13,95,800/-. The comparative table of the award under
the different heads granted by the Tribunal and this Court
will be as follows:
The computation of reduction:
By Tribunal By this Court
Description
Loss of future
Rs.25,09,200/-
earning capacity Rs.12,24,000/-
Medical expenses Rs.81,712/- Rs.81,712/-
Laid up period Rs.60,000/- Rs.60,000/-
Pain and suffering Rs.10,000/- Rs.10,000/-
Conveyance,
Rs.10,000/- Rs.10,000/-
nutritional food
Loss of amenities Rs.10,000/- Rs.10,000/-
Total Rs.26,80,912/- Rs.13,95,712/-
Rounded off Rs.26,81,000/- Rs.13,95,800/-
Reduction Rs.12,85,200/-
In the light of the following:
ORDER
(I) The appeal is allowed in part.
NC: 2024:KHC-K:1329-DB
(II) The first respondent is declared to be entitled to
a sum of Rs.13,95,800/- and the appellant is
called upon to deposit the aforesaid amount
with interest at 9% from the date of petition till
the date of the Tribunal's judgment, and
interest for the period beyond at 6% until the
date of actual deposit.
(III) The amount in deposit in this appeal is directed
to be transmitted.
(IV) Upon computation, if it is found that the
insurer has deposited any amount higher than
what is to be satisfied in terms of this
judgment, the amount shall be refunded to the
insurer.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
CT: CS
