Karnataka High Court
Shri Vikas @ Gopi S/O. Pandurang vs Dr. Susha S/O. Ramchandra Mule on 30 May, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No.100589 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.100589 OF 2019 (MV-I)
BETWEEN:
SHRI VIKAS @ GOPI
S/O. PANDURANG BHANUSE @ BHANVSE,
AGE: 29 YEARS, OCC: LABOUR (NOW NIL),
R/O: HINDALAGA,
TAL. AND DIST: BELAGAVI.
...APPELLANT
(BY SRI. UMESH C. AINAPUR, ADVOCATE)
AND:
1. DR. SUHAS S/O. RAMCHANDRA MULE,
AGE: 34 YEARS, OCC: MEDICAL OFFICER,
R/O: SUB DISTRICT HOSPITAL,
DAOOLI, TAL: DAPOLI,
DIST: RATNAGIRI - 415712
JAGADISH
STATE: MAHARASTRA,
TR AND ALSO R/O: AT: MULEWADI,
Digitally signed by
JAGADISH T R
Location: HIGH COURT
POST: KINI, TQ: & DIST: USMANBAD,
OF KARNATAKA
DHARWAD BENCH
STATE: MAHARASTRA.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
OFFICE NO. 14TH FLOOR,
SHRIKRISHNA TOWERS 14,
KHANAPUR ROAD, TILKAWADI,
BELAGAVI-590 006.
...RESPONDENTS
(BY SRI. SURESH S. GUNDI, ADVOCATE FOR R2)
(NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04.08.2018 PASSED IN
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MFA No.100589 of 2019
MVC NO.2476/2016 ON THE FILE OF VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for Admission, with the
consent of the learned counsel for both the parties, the
same is taken up for final disposal.
2. The appellant-claimant is before this Court being
dis-satisfied with the quantum of compensation awarded
under the judgment and award, dated 04.08.2018, passed
in M.V.C. No.2476/2016 by the VI Additional District &
Sessions Judge and Additional Motor Accident Claims
Tribunal, Belagavi (for short, 'the Tribunal'), and praying for
enhancement of compensation.
3. Brief facts of the case leading to filing of this
appeal are that,
(a) The appellant-claimant filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
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compensation for the accidental injuries sustained by
him in a road traffic accident that took place on
08.10.2016 involving motorcycle bearing registration
No.MH-12/EJ-7663 and Maruti Swift Car bearing
registration No.MH-08/AG-1905. It was stated by the
claimant that he was aged 27 years as on the date of
the accident, and was working as a labourer earning
Rs.600/- per day.
(b) On service of notice, the respondent No.1 filed his
objections statement denying the claim petition
averments and further contended that the accident
occurred due to sole negligence of the claimant himself
and not due to fault of the offending vehicle.
Respondent No.2-insurance company, in its statement
of objections, denied the claim petition averments and
further denied the occurrence of the accident due to
negligence of the driver of the Maruti Swift Car. It also
contended that there was violation of terms and
conditions of the policy, and that the motorcycle was
carrying two pillion riders.
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(c) In support of his case, claimant examined himself as
P.W.1, and also examined the doctor as P.W.2, apart
from marking 21 documents as Exs.P.1 to P.21. No
evidence was led on behalf of the respondent nor any
document was produced. The Tribunal based on the
material on record, awarded a total compensation of
Rs.15,15,400/- on the following heads:
1. Pain, sufferings & Trauma Rs. 1,50,000/-
2. Food and nourishment charges Rs. 5,000/-
3. Attendant charges Rs. 5,000/-
4. Traveling expenses Rs. 5,000/-
5. Medical expenses Rs. 10,000/-
6. Future Medical Expenses inclusive of
cost of Artificial limb Rs. 50,000/-
7. Loss of future income due to disability Rs. 11,42,400/-
8. Loss of earnings during laid off period
Rs. 48,000/-
9. Loss of amenities of life inclusive of
marriage prospects Rs. 1,00,000/-
Total Rs. 15,15,400/-
While awarding the above compensation, the Tribunal has
assessed the income of the claimant at Rs.8,000/- per
month, and the whole body disability of the claimant-
injured at 70% as against the evidence of the doctor-
P.W.2 who assessed the whole body disability at 80%.
4. Heard Sri. Umesh C.Ainapur, learned counsel
appearing for the appellant-claimant, and Sri. S.S.Gundi,
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learned counsel appearing for respondent No.2-insurance
company.
5. Learned counsel, Sri. Umesh C.Ainapur,
appearing for the appellant-injured claimant would submit
that the income assessed by the Tribunal at Rs.8,000/-
per month is on the lower side, and he submits that the
claimant was earning more than Rs.15,000/- per month
by doing labour work. He further submits that the
accident is of the year 2016 and the notional income fixed
by the Karnataka State Legal Services Authority for the
accident of the year 2016 is Rs.8,750/-. Thus, he prays
for revision of income assessed by the Tribunal on the
higher side.
6. Learned counsel for the appellant would submit
that due to accidental injuries, the appellant-injured
claimant has suffered amputation of right leg above knee;
the doctor-P.W.2, taking note of the injuries sustained by
the claimant as well as the medical record, has opined
that the injured claimant has suffered 80% disability to
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right leg. Further, it is submitted that the claimant has
also sustained fracture of right hand and the doctor-P.W.2
has deposed that the claimant has suffered 25% disability
to the right upper limb. Thus, learned counsel would
submit that the extent of disability assessed by the
Tribunal at 70% to the whole body is erroneous and needs
to be enhanced. It is also contended that the
compensation awarded on the other heads is on the lower
side. Learned counsel would submit that the claimant was
inpatient for more than 28 days and as such, the
compensation awarded under the heads 'food and
nourishment', 'attendant charges' and 'traveling expenses'
are meager and he prays for enhancement of the same.
Learned counsel would also submit that the compensation
awarded towards artificial limb at Rs.50,000/- is on the
lower side and he would submit that artificial limb would
cost more than Rs.1,00,000/-. Thus, he prays for
enhancement of compensation.
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7. Per contra, Sri. Suresh S.Gundi, learned
counsel appearing for respondent No.2-insurance
company, would submit that the Tribunal has awarded
just compensation which needs no interference. Learned
counsel would submit that the Tribunal has rightly
assessed the whole body disability of the appellant-injured
claimant at 70%. He submits that the doctor has opined
that the claimant has suffered 80% disability to the right
leg and 25% disability to the right hand; when the whole
body disability is to be assessed, the Tribunal has to take
note of the medical evidence, the injuries sustained by the
claimant and his avocation. In that background, the
assessment of disability by the Tribunal is proper and
correct. Learned counsel further submit that the Tribunal
taking note of the entire facts and circumstances, has
awarded compensation on the other heads properly which
needs no interference. Thus, he prays for dismissal of the
appeal.
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8. Having heard the learned counsel for the parties
and on perusal of the appeal papers and the records of the
Tribunal, the following points would arise for consideration:
i) Whether the Tribunal is justified in assessing
the income of the appellant-injured claimant
at Rs.8,000/- per month?
ii) Whether the Tribunal is justified in assessing
the whole body disability suffered by the
claimant at 70%?
iii) Whether the claimant is entitled for
enhancement of compensation?
9. The answers to the points i) and ii) would be in
the negative, and the answer to point No.iii) would be in the
affirmative for the following reasons:
(a) The accident that took place on 08.10.2016 involving
motorcycle bearing registration No.MH-12/EJ-7663
and Maruti Swift Car bearing registration No.MH-
08/AG-1905 and the resultant injuries suffered by the
appellant-injured claimant is not in dispute in this
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appeal. The injured claimant is before this Court
seeking enhancement of compensation.
(b) The claimant states that he was working as a labourer
earning daily wage of Rs.600/-, and he was aged 27
years. To establish his income, the claimant has not
produced any document. In the absence of any
material to assess the income, normally, the Court
would assess the income notionally as per the Chart
prepared by the Karnataka State Legal Services
Authority. In terms of the Chart prepared by the
Karnataka State Legal Services Authority, the notional
income for accident of the year 2016 is fixed at
Rs.8,750/- per month. Therefore, in the absence of
any material produced by the claimant, it would be
appropriate for this Court to assess the notional
income of the claimant at Rs.8,750/- per month as
against Rs.8,000/- per month assessed by the
Tribunal.
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(c) The appellant/injured-claimant has suffered the
following injuries:
i) fracture of shaft femur compound right.
ii) fracture of distal end radius right.
iii) fracture of 3rd and 4th metacarpal right.
It is an admitted fact that, due to injuries suffered by
the appellant/injured-claimant to his right leg, his
right leg has been amputed above knee. The
appellant-injured claimant has also suffered fracture of
right hand. Claimant has examined P.W.2 in support of
his case, P.W.2-doctor has deposed in his evidence
that, the appellant/injured-claimant has suffered 80%
disability to the right leg and 25% to the right hand.
The Tribunal, based on the evidence of the doctor, the
injuries sustained by the injured claimant and the
documentary evidence viz., Exs.P.7 to P.15, has
assessed the whole body disability at 70%.
Admittedly, the claimant was a labourer and he would
not be in a position to carry on the labour work as he
was carrying prior to the accident. Since the claimant
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has suffered amputation of right leg and fracture of
right hand and taking note of the doctor's evidence, it
would be appropriate to assess the whole body
disability at 80%.
(d) The claimant, who is not in a position to do the same
work which he was doing prior to the accident, due to
amputation above knee and fracture of right hand, he
would be entitled for future prospects in terms of the
decision of the Hon'ble Apex Court in the case of
Jagadish Vs. Mohan and Others1. Since the claimant
was aged 27 years as on the date of the accident, he
would be entitled for adding 40% of the assessed
income towards future prospects. The appropriate
multiplier applicable is '17' since the injured claimant
was aged 27 years as on the date of the accident.
Thus, the appellant-injured claimant would be entitled
for compensation under the head 'loss of future
income' as under:
(2018)4 SCC 571
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Rs.19,99,200/- [Rs.8,750 + Rs.3,500/- (40% of Rs.8,750/-)
= Rs.12,250/- x 80% (disability) = Rs.9,800 x 12 x 17]
(e) Admittedly, the claimant was inpatient for more than
38 days. The accident is of the year 2016. The
compensation awarded in a sum of Rs.5,000/- each on
the heads of 'food and nourishment charges',
'attendant charges', and 'travelling expenses' is
meager and it needs to be enhanced from Rs.5,000/-
to Rs.15,000/- on each heads.
(f) As submitted by the learned counsel for the appellant,
the artificial limb would cost more than Rs.50,000/-.
Hence, the compensation awarded at Rs.50,000/- on
artificial limb is enhanced to Rs.1,00,000/-.
(g) Since the income of the claimant is enhanced from
Rs.8,000/- to Rs.8,750/-, considering the laid off
period as six months, the claimant would be entitled
for a sum of Rs.52,500/-.
(h) The compensation awarded by the Tribunal towards
'pain and suffering', 'medical expenses', and 'loss of
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amenities including marriage prospects' is left
undisturbed.
10. On reassessment, the claimant would be entitled
for enhanced compensation as under:
1. Pain, sufferings & Trauma Rs. 1,50,000/-
2. Food and nourishment charges Rs. 15,000/-
3. Attendant charges Rs. 15,000/-
4. Traveling expenses Rs. 15,000/-
5. Medical expenses Rs. 10,000/-
6. Future Medical Expenses inclusive of
cost of Artificial limb Rs. 1,00,000/-
7. Loss of future income due to disability Rs. 19,99,200/-
8. Loss of earnings during laid off period
Rs. 56,500/-
9. Loss of amenities of life inclusive of
marriage prospects Rs. 1,00,000/-
Total Rs. 24,60,700/-
Thus, the claimant would be entitled to total compensation
of Rs.24,60,700/- as against Rs.15,15,400/- awarded by
the Tribunal.
11. Hence, we pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to the extent that the
claimant is of Rs.24,60,700/- as against
Rs.15,15,400/- awarded by the Tribunal.
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c) The enhanced compensation amount will bear
interest at the rate of 6% per annum from the
date of claim petition till date of realization.
d) The respondent No.2-Insurance Company shall
deposit the enhanced compensation amount with
accrued interest before the Tribunal within six
weeks from the date of receipt of certified copy
of this judgment.
e) Apportionment, deposit and disbursement of the
enhanced compensation shall be made as per
the award of the Tribunal.
f) Draw modified award accordingly.
Registry to transmit the records to the Tribunal
forthwith.
No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
KMS, CT:VP
