Karnataka High Court
Chandrakanth vs Basavaraj And Anr on 8 January, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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NC: 2024:KHC-K:266-DB
MFA No. 202170 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO. 202170 OF 2017 (MV-I)
BETWEEN:
1. CHANDRAKANTH S/O RACHAYYA MATH,
AGE: 29 YEARS,
OCC: HEAVY DUTY DRIVER IN SHANFARI
READY MIX AND CRUSHERS, LLC,
IN MUSCAT COUNTRY (OMAN),
NOW NILL R/O ASHRAYA COLONY,
BASAVAKALYAN, DIST: BIDAR-585401.
...APPELLANT
(BY SRI. NEEVA M CHIMKOD, ADVOCATE)
Digitally signed
by RAMESH
MATHAPATI AND:
Location: HIGH
COURT OF
KARNATAKA
1. BASAVARAJ S/O RACHAYYA MATH,
AGE: MAJOR, OCC: BUSINESS AND
OWNER OF HERO HONDA MOTORCYCLE,
BEARING NO.KA-56/H-4880,
R/O ASHRAYA COLONY,
BASAVAKALYAN DIST: BIDAR
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
OPP: MINI VIDHAN SOUDHA,
STATION ROAD, KALABURAGI-585101.
...RESPONDENTS
(BY SRI. S S ASPALLI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
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MFA No. 202170 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO ALLOW THIS APPEAL BY SET-ASIDE THE
JUDGMENT AND AWARD DATED-25.03.2017 PASSED BY THE
II ADDL. DISTRICT AND SESSIONS COURT AND ADDL. MACT,
BIDAR SITTING AT BASAVAKALYAN DIST: BIDAR IN MVC
NO.480/2016 AND AWARD COMPENSATION AS CLAIMED IN
THE CLAIM PETITION, IN THE INTEREST OF JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
B.M.SHYAM PRASAD J. DELIVERED THE FOLLOWING:
JUDGMENT
The appellant's claim petition in MVC No.480/2016
on the file of the II Additional District and Sessions Court &
Additional MACT, Bidar, sitting at Basavakalyan [for short,
'the Tribunal'] is allowed in part by the impugned judgment
and award dated 25.03.2017 granting a sum of
Rs.7,04,500/- along with interest @ 7% per annum as
compensation from the date of petition till the date of
realization. This appeal is filed by the claimants in MVC
No.480/2016 for enhancement of the compensation. The
Tribunal has awarded this amount of Rs.7,04,500/-
including a sum of Rs. 3,82,500/- towards loss of future
income because of the permanent disability under the
following heads:
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1. Pain and sufferings Rs.40,000/-
2. Loss of life amenities and pleasure Rs.20,000/-
Medical attendant charges, food and
3. nutrition charges and Rs.25,000/-
transportation charges
Loss of income during laid up period
4. Rs.30,000/-
(Rs.7,500/- x 4)
Rs.3,82,500/-
5. Loss of future income
6. Medical expenses Rs.1,82,000/-
7. Future medical expenses Rs.25,000/-
The Tribunal has computed the loss of future income
[Rs.3,82,500/-] because of the permanent disability in the
following manner:
Loss of future Income because of permanent
Disability
Notional Monthly Income Rs.7,500.00
Rs.7,500/- x 12 =
Annual Income
Rs.90,000/-
Total Income with Multiplier Rs.15,30,000/-
Percentage of Disability 25%
Loss of future Income because of
Rs.3,82,500/-
permanent Disability
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2. Smt. Neeva M. Chimkod, the learned counsel for
the appellant, submits that this Court must interfere and
enhance compensation considering the two grounds viz., the
question of disability and the amount of salary. The learned
counsel submits that the appellant suffered fracture of right
femur as also a head injury and this fact is established by
examining Dr. Rajkumar Kanade [PW.2] and Dr. Rajendra
Kothari [PW.3]. The learned counsel canvasses that Dr.
Rajkumar Kanade has opined that the petitioner has
suffered physical disablement of 46% because of the delayed
union of fracture and Dr. Rajendra Kothari has deposed that
the petitioner has suffered 40% physical disablement
because of the head injuries, and that notwithstanding this
evidence and the observation that 50% of the total disability
would be 43%, the Tribunal has taken the permanent
disability at 25%. Smt. Neeva M. Chimkod argues that the
Tribunal should have taken 1/3rd of 86% as the disability as
functional disability.
3. On the ground of the appellant's income, Smt.
Neeva M. Chimkod submits that the Tribunal has computed
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loss of compensation towards physical disability taking the
notional income of Rs.7,000/- per month, but the appellant
has produced evidence to show that he was residing in
Oman and had obtained a driver's license in that country
and that this evidence establishes, on the scale of
preponderance, that the appellant was working as a driver
and the income has to be taken accordingly. The learned
counsel alternatively submits that the notional income for
the accident of the year 2016 is taken @ Rs.8,750/- per
month for the purposes of settlement in Lok Adalat and in
the minimum such income should have been taken.
4. Sri. S. S. Aspalli submits that the appellant was
admitted only for 19 days and Dr. Rajkumar Kanade [PW.2]
has not even adverted to any head injury suffered by the
appellant while emphasizing that only this doctor has
treated the appellant. In fact, Sri. S. S. Aspalli submits that
the Tribunal has been more than reasonable in taking 25%
as the total disablement. On the ground of income, Sri. S.
S. Aspalli points out that, as observed by the Tribunal, the
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petitioner has himself admitted to the police that he was
working as a coolie, and this regard, he invites this Court's
attention to Ex.P2. However, Sri. S. S. Aspalli does not
dispute that in cases where it is established that a person
was working but is unable to establish the actual income,
this Court, for the reasons of uniformity and consistency,
applies the schedule on income evolved for settlement in Lok
Adalat and according to such schedule the notional income
will have to be taken at Rs.8,750/- per month.
5. These rival submissions are considered, and this
Court opines that the point for consideration is whether
there must be enhancement on grounds canvassed on behalf
of the appellant. This Court is not persuaded to opine that
there is any merit on the first contention inasmuch as the
appellant's claim is based on the evidence of Dr. Rajendra
Kothari, who has deposed that he has examined the
appellant six months from the date of the accident and has
mentioned 40% as the physical disability because of the
head injury without giving any further evidence to justify
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such determination. This Court is also not persuaded to
opine that there must be enhancement of compensation only
because a notarized copy of the driver license issued by the
authorities in Oman is marked as an exhibit. A notarized
copy of the driver license issued by the authorities in Oman
cannot prevail unless there is some evidence to show that
the appellant was working as a driver. This would be
especially so because of his statement with the police that
he was working as a coolie, a statement which is not
contested.
6. There must be enhancement in the enhancement
in the compensation on ground of loss of future income
because of permanent disability taking the notional income
at Rs.8,750/-. The Tribunal has granted compensation of
Rs.3,82,500/- towards loss of future income taking the
notional income at Rs.7,500/- per month and physical
disability at 25%. This will have to be recomputed taking
the notional income at Rs.8,750/- with the necessary
addition towards future prospects as the appellant was aged
28 years as of the date of the accident and he has suffered
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permanent disability. In which event, the computation will
be thus:
Loss of future Income because of permanent
Disability
Notional Monthly Income Rs.8,750/-
Notional Monthly Income with
addition towards Future Rs.12,250[8750+3500]
Prospects at 40%
Therefore, Annual Income with
Rs.1,47,000/-
Future Prospects
Total Income with Future
Rs.24,99,000/-
Prospects and Multiplier
Percentage of Disability 25%
Loss of future Income because of
Rs.6,24,750/-
permanent Disability
The enhancement in compensation is computed thus:
The amount awarded by the
Rs.3,82,500/-
Tribunal under this ground -
[A]
The amount computed by
Rs.6,24,750/-
this Court on this ground -
[B]
Enhancement [B - A] Rs.2,42,250/-
In the light of the aforesaid, the following:
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ORDER
(i) The appeal is allowed in part.
(ii) The appellant is granted an enhancement
on the compensation by a sum of
Rs.2,42,250/- along with interest @ 6% per
annum.
(iii) The insurer shall deposit the said amount
with the Tribunal within a period of 8
[eight] weeks from the date of receipt of a
copy of this order.
Sd/-
JUDGE
Sd/-
JUDGE
MSR
