IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.10608 OF 2013 [MV] BETWEEN MR. P. VADIRAJ ACHAR, S/O. PADMANABA ACHAR, AGED ABOUT 37 YEARS, CARPENTER, R/O. GALIGANDI VILLAGE, ALDUR HOBLI, CHIKMAGALUR TQ & DIST. PIN-577 222.
... APPELLANT (BY SRI. N.R. RAVI KUMAR FOR GRV LEGAL SOLUTIONS, ADVOCATE) AND 1. KHALEEL AHMED, S/O. MOHAMMED PASHA, AGED ABOUT 44 YEARS, COFFEE PLANTER, PENSHAN MOHALLA, CHIKMAGALUR-577 101.
2. AHMED PASHA, S/O. MOHAMMED GOUSE, COFFEE PLANTER, PENSHAN MOHALLA, CHIKMAGALUR-577 101.
... RESPONDENTS (BY SRI. M.C. JAYAKIRTHI, ADVOCATE) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.04.2013 PASSED IN MVC NO.489/2011 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND M.M.A.C.T., CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHACEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER Though this appeal is listed for admission, the same is taken up for final disposal at the consent of both the learned counsel.
This appeal is filed by the appellant/claimant being aggrieved by the judgment and award dated 24.04.2013 passed by the Additional District Judge and M.A.C.T., Chikmagalur, in MVC No.489/2011, whereby the Tribunal has awarded a total compensation of Rs.3,656,592/- with interest at 6% per annum from the date of petition till realization.
2. Aggrieved by the inadequacy of the compensation awarded by the Tribunal, the present appeal has been preferred seeking enhancement of compensation.
3. I have heard the learned counsel appearing for the appellant-claimant and the learned counsel appearing for the respondents.
4. It is the case of the appellant that on 30.06.2011 at about 8.50 a.m., when he was proceeding on a motor cycle bearing registration No.KA-18-J-7765, opposite to City Coffee Curing, Mugthihalli Village, Chikmagalur Taluk, a jeep bearing registration No.MYC-7693 driven by Respondent No.1 in a rash and negligent manner, dashed against the motor cycle, as a result of which, he sustained grievous injuries and immediately he was shifted to Government Hospital, Chikamagalur and later he was shifted to Tejasvini Hospital, Mangalore. He took treatment as an in-patient for 27 days. It is the further case of the appellant that he was aged about 35 years and earning a sum of Rs.20,000/- per month by doing carpentry and agricultural work and on account of the accident, he sustained permanent disability and there is a shortening of right ankle to an extent of 1.5 cm. etc.
5. The appellant filed a claim petition seeking a total compensation of Rs.5 Lakhs from the respondents herein. Before the Tribunal, PWs.1 and 2 were examined and Ex.P-1 to P-215 were got marked on behalf of the claimant. The claim was refuted by the respondents. On their behalf RW-1 and RW-2 were examined and Ex.R-1 was marked. Further, Ex.C-1 to C-3 were also marked.
6. The Tribunal after considering the evidence and material on record, awarded a total compensation of Rs.3,65,592/- with interest at 6% per annum from the date of petition till realization and held that the respondents No.1 and 2 are jointly and severally liable to pay the compensation.
7. It is the contention of the learned counsel for the appellant that, the claimant was doing carpentry work and also doing agricultural work and earning a sum of Rs.20,000/- per month. However, the Tribunal has taken the income at Rs.4,000/- per month, which is on the lower side. He further submitted that the total compensation awarded by the Tribunal in view of the disability suffered by the claimant is on the lower side and the same needs to be enhanced and accordingly seeks to allow the appeal.
8. Per contra, the learned counsel appearing for the respondents contended that the Tribunal has taken the disability to the whole body at 16% though the disability suffered by the claimant was 30% for the particular limb. It is contended that, the Tribunal ought to have taken 1/3rd of the said disability and therefore the learned counsel submits that the compensation awarded by the Tribunal cannot be said to be on the lower side. He further submits that the Tribunal has taken the income of the claimant on the basis of evidence on record, as the claimant failed to substantiate his income pleaded by him. Accordingly, he seeks to dismiss the appeal.
9. It is the case of the claimant that on 30.06.2011 at about 8.50 a.m., opposite to City Coffee Curing, while he was riding a motor cycle bearing registration No.KA-18-J-7765, a jeep bearing registration No.MYC-7693 driven by Respondent No.1 in a rash and negligent manner dashed against the motor cycle, as a result of which he sustained grievous injuries. The respondents are the driver and the owner of the offending vehicle in question. Since there was no insurance policy in respect of the vehicle in question, the Tribunal has fastened the liability on the respondents.
10. It is the case of the claimant that he was earning a sum of Rs.15,000/- by doing carpentry work and another sum of Rs.5,000/- by doing agricultural work. However, there is no satisfactory evidence adduced by the claimant except his oral testimony to substantiate his income. The Tribunal has taken the income of the claimant at Rs.4,000/- per month. However, considering that the accident has occurred in the year 2011, I deem it appropriate to take the income of the appellant-claimant at Rs.5,500/- per month.
11. As per the evidence of PW-2 on clinical examination, he found that there is a restriction of movement of right ankle to an extent of 30o and right knee by 40o, shortening of right ankle to an extent of 1.5 Cms. and therefore opined that there is disability to an extent of 30% for the right lower limb. The Tribunal has assessed the disability is to the whole body at 16%. Considering the nature of work of the claimant and nature of injury. The disability assessed by the tribunal cannot be said to be erroneous.
12. The appellant was aged about 35 years at the time of the accident and therefore, the multiplier being 16, the compensation of Rs.1,68,960/- (Rs.5,500/-x12x16x16/100) is awarded under the head ‘loss of future income’ as against Rs.1,22,880/- awarded by the Tribunal.
13. The Tribunal has awarded a sum of Rs.20,000/- under the head ‘loss of income during laid up period’, the same is enhanced to Rs.25,000/-. The compensation awarded under all other heads are just and reasonable and no enhancement is called for. Hence, the claimant is entitled for an additional sum of Rs.51,080/-. Therefore, I pass the following:
ORDER The appeal is allowed in part.
The judgment and award dated 24.04.2013 passed by the Additional District Judge and M.A.C.T., Chikmagalur in MVC No.489/2011 is hereby modified.
The appellant-claimant is entitled for an additional compensation of Rs.51,080/-. Than what has been awarded by the tribunal. The enhanced compensation shall carry interest at 6% per annum from the date of petition till the date of deposit.
The Respondents No.1 and 2 are jointly and severally liable to pay the compensation to the appellant-claimant.
snc Sd/- JUDGE