IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL No.8060 OF 2018 (MV) BETWEEN:
Kiran S/o Chandregowda @ Chandru, Aged about 25 years, Decorator, R/at Ramanahalli, Chikkamagaluru District – 577101. …Appellant (By Sri. Girish B.Baladare, Advocate) AND:
1. The Branch Officer United India Insurance Co. Ltd., Branch Office, Crescent Court, K.M.Road, Chikkamagaluru – 577101.
2. Jagadeesh.R S/o Rangegowda, Aged about 29 years, R/o Dantarmakki, Jyothinagara Post, Chikkamagaluru – 577101.
3. Chandpeer S/o Imam Sab, Aged about 42 years, C/o Puttaswamygowda.N, Adishakthi Nagara, Rampura Post, Chikkamagaluru – 577101.
4. H.M.Puttaswamy Gowda S/o Mallegowda, Aged about 50 years, R/at Nandikere Village, Halasumane Post, Chikkamagaluru – 577101. … Respondents (By Sri. Ravish Benni, Advocate for R2; Notice to R1 dispensed with.) This Miscellaneous First Appeal is filed under Section 173(1) of M.V. Act against the judgment and award dated 21.05.2018 passed in MVC No.241/2016 on the file of the Principal Senior Civil Judge and CJM, Member, MACT, Chikkamagaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the claimant challenging the judgment and award dated 21.05.2018, passed by the Principal Senior Civil Judge and CJM and M.A.C.T. (hereinafter referred to as ‘the Tribunal’ for short) at Chikkamagaluru in MVC No.241/2016, whereby the Tribunal has granted compensation of Rs.8,83,240/- with interest @ 9% p.a.
2. For the purpose of convenience, parties are referred as per their rankings before the Tribunal.
3. Brief facts of the case:
On 28.11.2015 at about 11.00 p.m., the petitioner after finishing his work at Pai Choultry situated at Belur Road, Chikkamagaluru was waiting for autorickshaw in order to go to his house. While he was waiting in front of the choultry, at about 11.00 pm., respondent No.1 being the driver of the Maruthi Car bearing registration No.KA- 04-M-0852, drove the same in a rash and negligent manner with excessive speed and dashed against the petitioner. Due to the accident, the petitioner had sustained grievous injuries and he was shifted to M.G. Hospital, Chikkamagaluru for treatment and as per the advice of the doctor, he was shifted to Wenlock Hospital, Mangaluru and then he was shifted to Tejeswini Hospital, Mangaluru and he took treatment as inpatient for a period of 16 days. After recovering from the injuries, claimant has filed claim petition in MVC No.241/2016 before the Tribunal. To establish his case, he examined himself as PW.1 and marked 16 documents. On the other hand, respondent-
Insurance Company has not examined any witnesses and produced one document as Ex.R1-Insurance Policy. On appreciation of oral and documentary evidence, the Tribunal has granted a compensation of Rs.8,83,240/- with interest @9%p.a. Being aggrieved by the same, the claimant/appellant has filed this appeal seeking enhancement of compensation.
4. Sri.Girish.B.Baladare, learned counsel for the appellant submitted that at the time of accident, the claimant was earning Rs.30,000/- p.m. The Tribunal while calculating the income has taken notional income of the claimant at Rs.8,000/- p.m., which is on the lower side. Hence, he sought for enhancement of income of the claimant. Further, he submits that claimant got examined Dr.Mahabala Shetty as CW.1. The doctor in his evidence has specifically stated that there is amputation of left hand and sustained 90% disability to the left upper limb. The Tribunal is not justified in taking only 33% disability to the whole body. Hence, he sought for enhancement of compensation awarded by the Tribunal by allowing the appeal.
5. Per contra, leaned counsel for the respondent- Insurance Company submits that even though the claimant claimed that he was earning Rs.30,000/- per month, but he has not produced any document to establish his claim. He further contended that Doctor has assessed the disability to the extent of 90% to the left upper limb, the Tribunal has rightly taken 33% disability to the whole body. Hence, he sought for dismissal of the appeal.
6. Heard the learned counsel for the parties and perused the records.
7. It is not in dispute that the petitioner has suffered injury in a road traffic accident occurred on 28.11.2015, due to rash and negligent driving of the driver of the Maruthi Car bearing registration No.KA-04-M-0852. Due to the accident, claimant sustained 90% disability to his left upper limb as per the disability certificate produced at Ex.P.14 and got examined Dr.Mahabala Shetty as CW.1 and in his evidence, he has stated that there is disability to the extent of 90% to the left upper limb. As per the Employees Compensation Act, 1923, the Tribunal has to consider the disability to the extent of 60%. But without any basis, the Tribunal assessed the disability to the extent of 33%. In the Employees Compensation Act, Schedule-I, Part-II, Clause-IV “Loss of a hand or of the thumb and four fingers of one hand or amputation from 11.43 Cms below tip of olecranon – Percentage of Loss of earning capacity classified as 60%”. In view of amputation of left upper limb, it affects claimant’s avocation since the petitioner was working as a flower decorator. Therefore, this Court is of the opinion that the disability to the whole body has to be considered as 60%. Even though the claimant claimed that he was earning Rs.30,000/- p.m., but he has not produced any document to prove his claim. Under the circumstances, the Tribunal was left with no other option, but to asses the income of the claimant notionally. In catena of cases, this Court has relied upon the Chart prepared by this Court for the purpose of deciding the matters at Lok Adalath. According to the Chart, for an accident of the year, 2015, the income should be taken notionally as Rs.9,000/- per month. Therefore, the learned Tribunal is unjustified in assessing the claimant’s income as merely Rs.8,000/- per month. Therefore, this Court enhances the income at Rs.9,000/- per month. Accordingly, loss of income due to the disability has been calculated as follows:
9000 X 12 X 18 X 60% = 11,66,400/-.
8. Accordingly, the appeal is partly allowed. The judgment and award passed by the Tribunal is modified as under:
and hospital charges Loss of income during laid up period 48,000/- 48,000/-
9. The Insurance Company is directed to deposit with the learned Tribunal, the entire compensation amount, along with an interest @ 9% per annum, from the date of filing of the claim petition till the date of realization, within a period of four weeks from the date of receipt of the certified copy of this judgment. The Tribunal is directed to disburse the amount in terms of the award passed by the Tribunal after due verification.
Sd/- JUDGE MBM