Karnataka High Court
Sri.Anant S/O Laxman Kamanache vs Sri.Narayan Monappa Birje on 6 March, 2024
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NC: 2024:KHC-D:4920
MFA No. 104838 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 104838 OF 2019 (MV-I)
BETWEEN:
SRI. ANANT S/O. LAXMAN KAMANACHE,
AGE: 66 YEARS, OCC: AGRICULTURE,
(NOW NIL), R/O. HALAGA-590020,
TQ AND DIST: BELAGAVI.
...APPELLANT
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
1. SRI. NARAYAN MONAPPA BIRJE,
AGE: 39 YEARS, OCC: BUSINESS,
R/O. H.NO-346, PATIL GALLI,
2ND CROSS, VADAGAON-590005,
TQ: DIST: BELAGAVI.
2. THE DIVISIONAL MANAGER,
Digitally signed
by JAGADISH T NATINAL INSURANCE COMPANY LTD,
R RAMDEV GALLI, BELAGAVI-590001.
Location: HIGH
COURT OF ...RESPONDENTS
KARNATAKA
(BY SRI. S. K. KAYAKMATH, ADV. FOR R2,
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION
BY MODIFYING THE JUDGMENT AND AWARD PASSED IN M.V.C
NO.1996/2018, ON THE FILE OF MOTOR ACCIDENT CLAIMS
TRIBUNAL & II ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI,
DATED 09/08/2019 BY ALLOWING THIS APPEAL WITH COSTS, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 104838 of 2019
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is by the injured/claimant seeking
enhancement of compensation awarded under judgment and
award dated 9.8.2019 in MVC No.1996/2018 by the learned 2nd
Addl. District and Sessions Judge & Member, Addl. MACT,
Belagavi (for short, 'Tribunal').
3. Brief facts giving rise to filing of this appeal are that
on 4.9.2018, the appellant/claimant was proceeding on bicycle
on the left side of the road, at that time, rider of the motorcycle
bearing registration No.KA-22/EF-2104 coming from
Hirebagewadi towards Belagavi, in a rash and negligent manner
and dashed to the appellant. As a result, the claimant fell
down and sustained injures. Immediately, he was shifted to
Vijaya Hospital, Belagavi, wherein he was an inpatient from
4.9.2018 to 10.09.2018. Thereafter, he took treatment in
different hospitals. It is stated that the claimant/injured was
aged 65 years as on the date of the accident and he was doing
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agricultural work and earning Rs.12,000/- per month. Hence,
he filed claim petition seeking compensation.
4. Before the Tribunal, the Insurance Company
contested the proceedings by filing statement of objections and
denied the entire claim petition averments. It is averred that
there was no negligence on the part of rider of the motorcycle,
however, he was not having valid and effective driving license
as on the date of the accident. Thus, sought dismissal of the
claim petition.
5. The claimant in order to prove his case examined
himself as PW1 and one doctor examined as PW2 apart from
marking documents at Exs.P1 to P63. The respondents did not
examine any witness, but marked insurance policy as Ex.R1
with consent. The Tribunal upon hearing the learned counsel on
both sides and perusing the records, allowed the claim petition
in part awarding a compensation of Rs.1,45,626/- with interest
at 9% per annum from the date of petition till date of payment.
6. Heard the learned counsel Sri.Harish S Maigur for
the appellant/injured and learned counsel Sri.S.K.Kayakamath,
for the respondent/insurer.
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7. Learned counsel Sri.Harish S. Maigur for the
appellant/claimant submits that the Tribunal committed an
error in assessing income of the injured at Rs.8,000/- per
month, as the appellant was doing agricultural work and
earning Rs.12,000/- per month. He further submits that the
Tribunal also committed an error in assessing disability of the
injured at 8%, as the appellant has sustained comminuted type
4th inter trochantric fracture of the left femur bone and his left
leg is shortened by ½ inch, hence, disability of the appellant is
required to be assessed at 45% as opined by PW2-doctor. It is
submitted that the award of compensation under the head of
loss of income during laid-up period of R.1,400/- is on the
lower side, as the appellant sustained major fracture and was
an inpatient for seven days. It is also submitted that no
compensation is awarded under the head of loss of amenities.
It is further submitted that the compensation awarded by the
Tribunal on other heads is on the lower side and same requires
to be enhanced appropriately. Thus, he prays for allowing the
appeal and to enhance the compensation.
8. Per contra, Sri.S.K.Kayakamath, learned counsel for
the respondent/Insurance Company supporting the impugned
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judgment and award of the Tribunal would submit that in the
absence of any documentary evidence on record, the Tribunal
is justified in assessing notional income of the injured at
Rs.8,000/- per month, which is just and proper. He would
further submit that generally it is observed that Dr.S.R.Angadi,
who issued Disability Certificate and deposed before the
Tribunal is in the habit of assessing disability on the higher
side. He further submits that the compensation awarded by the
Tribunal on all heads is just and reasonable, which requires no
interference. He therefore, submits there is no merit in the
appeal and it is liable to be dismissed.
9. Having heard the learned counsel for the parties
and on perusal of the appeal papers including the Tribunal
records, the only point that would arise for consideration in this
appeal is, whether the appellant/injured is entitled for higher
compensation?
10. Answer to the above point would be in the
'affirmative' for the following reasons:
11. There is no dispute with regard to the road accident
occurred on 4.9.2018 resulting in injuries to the claimant. The
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Tribunal has committed an error in assessing the income of the
injured at Rs.8,000/- per month. No doubt, the claimant in
order to prove his income has not produced any acceptable
document much less cogent document. In the absence of any
documentary evidence to prove the avocation and income, this
Court would normally assess the income notionally taking note
of income chart prepared by the KSLSA based on the year of
accident. The accident is of the year 2018. As per the chart,
the notional income for the year 2018 is Rs.11,750/- per
month.
12. Indisputably, the appellant has sustained
comminuted type 4th inter trochanteric fracture of the left
femur bone and his left leg is shortened by ½ inch. The
Tribunal assessed disability of the injured at 8%, which is
contrary to the evidence available on record. Taking note of
the evidence of PW2, Ex.P10-Disability Certificate and the fact
that the left leg of the appellant is shortened by ½ inch, this
Court is of the considered view that it would be just and
appropriate to re-assess the disability of the injured at 14% to
the whole body as against 8% assessed by the Tribunal. There
is no dispute with regard to the age of the injured as 65 years
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and multiplier of 5. Thus, loss of future income due to
disability is recomputed as under:
Rs.11,750 (income) x 12(months) x 5(multiplier) x 14%
(disability) = Rs.98,700/-
13. The Tribunal awarded a sum of Rs.25,000/- under
the head of pain and suffering, which requires to be enhanced
by another sum of Rs.15,000/- taking note of the fact that the
appellant was inpatient for seven days. The Tribunal
committed an error in not awarding any compensation on the
head of loss of amenities. Taking note of the injuries suffered
by the claimant and the fact that his left leg is shortened by ½
inch, this Court is of the considered view that ends of justice
would be met, if the appellant is awarded a sum of
Rs.30,000/- under the head of loss amenities. Under the
head of loss of income during laid up period, the claimant
would be entitled to Rs.35,250/-(Rs.11,750 x 3), taking note
that he was an inpatient for seven days. The Tribunal has
awarded Rs.56,826/- towards medical expenses as per
medical bills, which is not disturbed. The Tribunal has awarded
a sum of Rs.24,000/- under the head of food, nourishment,
conveyance, diet and attendant charges and it is undisturbed.
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Thus, in all, the claimant shall be entitled to modified
compensation under the following heads:
HEADS AMOUNT
(in Rs.)
Towards pain and suffering 40,000/-
Towards Medical expenses 56,826/-
Food, conveyance, diet and attendant 24,000/-
Loss of future earnings due to disability 98,700/-
Loss of amenities 30,000/-
Loss of income during laid-up period 35,250/-
Total 2,84,776/-
14. Thus, the claimant shall be entitled to total
compensation of Rs.2,84,776/- as against Rs.1,45,626/-
awarded by the learned Tribunal.
15. In the result, this Court proceeds to pass the
following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total compensation
of Rs.2,84,776/- as against Rs.1,45,626/-
awarded by the Tribunal.
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c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the
date of petition till the date of payment.
d) The Insurance Company shall deposit the
enhanced compensation amount with accrued
interest before the Tribunal within a period of six
weeks from the date of receipt of certified copy
of this judgment.
e) On such deposit, the same shall be released in
favour of the appellant/claimant.
f) Registry to transmit the records forthwith to the
Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
JTR
