IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.4081 OF 2015 (MV) BETWEEN:
VIJAY HANMANT GHOLAP S/O. LATE HANMANT VISHNU GHOPAL @ HANMANT AGED ABOUT 32 YEARS C/O. NISARGA CARGO CARRIER NELAMANGALA BENGALURU – 563123 PERMANENT ADDRESS NO.176, KAVATHA VILLAGE KARADA TALUK, SATARA DISTRICT MAHARASHTRA - 474000. ... APPELLANT (BY SRI KALYAN R, ADVOCATE) AND:
1. THE RELIANCE GENERAL INSURANCE CO., LTD., REGIONAL OFFICE 5TH FLOOR, CENTENARY BUILDING NO.28, M.G.ROAD BENGALURU – 560 001 INSURER COVER NOTE NO.C1316522334 003020, VALID FROM 21.07.2012 TO 20.07.2013 LORRY NO.HR-Q-6502 2. KAPOOR DIESEL GARAGE PVT LTD., PROP. DAVINDER KAPOOR NANGLI POONA VILLAGE G.T.KAMAL ROAD NEW DELHI DELHI-110036. ... RESPONDENTS (BY SRI H.S.LINGARAJ, ADVOCATE FOR R1 NOTICE TO R2 DISPENSED WITH VIDE ORDER DATED 22.03.2019) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 24.01.2015 PASSED IN MVC NO.7417/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE AND XXXIII ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is before this Court in this appeal praying for enhancement of compensation awarded by the Tribunal under the judgment and award dated 24.01.2015 in MVC No.7417/2012.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered in a road traffic accident. It is stated that on 12.11.2012 at about 10.45 p.m., the claimant being cleaner of lorry bearing Reg.No.MH-11-AL- 2440 was proceeding towards Maharastra. At that time, another lorry bearing Reg.No.HR-38-Q-6502 driven by its driver in a rash and negligent manner stopped abruptly in the centre of the road without any indication. Due to which, the vehicle in which the claimant was travelling stuck the rear portion of lorry bearing No.HR-38-Q-6502 which resulted in grievous injuries to the claimant and the vehicle also. It is stated that the claimant was shifted to M.S.Ramaiah Harsha Hospital at Nelamangala, where he took treatment as inpatient for 8 days. It is stated that due to accidental injuries, the claimant suffered amputation above knee.
3. Respondent Nos.1 and 2 appeared before the Tribunal and filed objections. Respondent No.1-Insurance Company contended that the accident took place due to rash and negligent driving of lorry bearing No.MH-11-AL- 2440 and prayed for dismissal of the claim petition.
4. The claimant himself examined as PW.1 and also examined PW.3-Doctor in support of his case apart from marking documents Ex.P1 to Ex.P15. Respondents have not lead any evidence.
5. The Tribunal on analyzing the material on record awarded total compensation of Rs.4,17,000/- with interest at the rate of 8% per annum, on the following heads:-
Amount in (Rs.)
The claimant being aggrieved by the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
6. Heard learned counsel for the appellant and learned counsel for respondent No.1-Insurance Company. Perused the records.
7. On hearing the learned counsels and on perusal of the material on record, the only question that arises for consideration is as to Whether the claimant is entitled for enhanced compensation?
8. The answer to the above question is in the affirmative for the following reasons:-
Learned counsel for the appellant contended that the Tribunal has failed to assess the notional income of the appellant and has failed to award compensation on the head of ‘loss of future income’. It is stated that the claimant has suffered amputation above knee. The claimant is the owner cum cleaner of lorry bearing Reg.No.MH-11-AL-2440. The Doctor-PW.2, in his evidence has stated that the claimant has suffered 45% whole body disability in view of amputation above knee. It is his submission that the Tribunal ought to have awarded compensation taking into consideration the whole body disability and on assessing the income of the claimant on the head of ‘loss of future income’. Thus, he prays for enhancement of compensation.
9. On the other hand, learned counsel for respondent No.1-Insurance Company would submit that it is true that the claimant has suffered amputation above knee, but the Tribunal has awarded Rs.2,00,000/- on the head of ‘loss of amenities’ and Rs.1,00,000/- on the head of ‘pain and suffering’ which would sufficiently cover the future loss of earning capacity. Thus, he prays for dismissal of the appeal.
10. The accident is of the year 2012. The accident involving lorry bearing No.MH-11-AL-2440 and lorry bearing No.HR-38-Q-6502 and the accidental injuries suffered by the claimant are not in dispute in this appeal. This appeal is only with regard to enhancement of compensation. The claimant states that he is the owner of lorry and he was earning income from the lorry.
11. The Tribunal has not assessed the income of the claimant. The claimant has also not produced any document to indicate the exact income. In the absence of any material to indicate the exact income, the income is to be assessed notionally. This Court and the Lok Adalath, while settling the accident claims of the year 2012 would normally take Rs.7,000/- as notional income. In the case on hand also, in the absence of any material to indicate the exact income, it would be appropriate to take Rs.7,000/- as notional income of the claimant.
12. The Tribunal has noted that crush injury suffered by the claimant resulted in amputation of above knee of left leg. PW.2-Doctor in his evidence has stated that the claimant has suffered 85% disability to his left lower limb and 45% to whole body. PW.2-Doctor is an Orthopedic Surgeon at Victoria Hospital. The respondent No.1-Insurance Company has not cross-examined PW2-Doctor on that aspect. PW.2 in cross-examination has stated that with one crutch a person having disability in one lower limb can walk and further stated that the ability component of the other limbs will allow him to move. Even when looked into the Schedule Injury under the Employees’ Compensation Act, 1953, amputation above knee would be taken at more than 45%. Ex.P7 photograph would indicate amputation of left leg above knee of the appellant. Looking to the amputation of left leg above knee, the claimant would not be in a position to carry on the work of cleaner, which he was performing earlier. Definitely the amputation above knee (Ex.P7) would come in the way of normal work of the claimant. The amputation above knee has resulted in functional disability of the appellant to an extent of 45%. As a cleaner one has to climb on the lorry get down often, but the same cannot be performed by claimant by virtue of amputation of left leg above knee. Thus, the total disability of whole body could be taken at 45% when the claimant is being awarded compensation on the head of ‘loss of future income’. The compensation awarded on the head of ‘loss of amenities’ at Rs.2,00,000/- would be excessive. Since the claimant has suffered amputation above knee on left leg, it would be appropriate to award a sum of Rs.50,000/- on the head of ‘loss of amenities’. Further, Tribunal has not awarded any compensation for ‘artificial limb’. The claimant would be entitled for a sum of Rs.60,000/- for ‘artificial limb’.
Thus, claimant would be entitled for modified enhanced compensation as follows:-
1. Loss of future income =7000X12X17X45/100 Amount in (Rs.) 6,42,600 2. Pain and suffering 1,00,000 3. Medical expenses, conveyance and other incidental expenses 1,17,000 4. Loss of amenities 50,000 5. Towards artificial limb 60,000 Total 9,69,600 Thus, the appellant would be entitled for enhanced compensation of Rs.9,69,600/- as against Rs.4,17,000/- awarded by the Tribunal with interest as awarded by the Tribunal.
Accordingly, appeal is allowed. The judgment and award passed by the Tribunal is modified to the above extent.
Sd/- JUDGE PYR