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G.N. Nagabushan v/s S. Rafi Saheb & Others

    M.F.A. No. 8251 of 2016 (MV)

    Decided On, 12 March 2018

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Appellant: K. Shantharaj, Advocate. For the Respondents: R2, Shivaraj Patil, Advocate.



Judgment Text

(Prayer: This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 04.04.2016 passed in MVC No.837/2013 on the file of the II Additional Senior Civil Judge and MACT, Tumakuru, partly allowing the claim petition for Compensation and seeking enhancement of Compensation.)

1. The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by II Additional Senior Civil Judge and MACT at Tumakuru, in MVC No.837/2013 dated 4.4.2016.

2. Heard. Appeal is admitted and with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.

3. The brief facts of the case are that on 12.05.2012 at about 2.00 p.m. petitioner G.N.Nagabhushan was proceeding on his motor cycle bearing Registration No.KA-06 V-2478 along with a pillion rider and when he came near Koratagere Town, Degree College, a Tata S

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umo bearing Registration No.AP-02-TV-1445 came in a rash and negligent manner and dashed to the motor cycle on which petitioner was proceeding and as a result of the same he fell down along with pillion rider and sustained the injuries and immediately he was shifted to Koratagere Government Hospital and thereafter he was shifted to Rajalakshmi Nursing Home, Tumkur and he was admitted as an inpatient for about 20 days and he has been operated. It is the contention of the petitioner that he was hale and healthy and he was an agriculturist and was earning Rs.8,000/- per month. For having suffered the injuries he filed a claim petition under Section 166 of the Motor Vehicles Act.

4. In response to the notice though respondent No.1 appeared, he has not filed any written statement. Respondent No.2 filed its written statement by denying the contents of the petition. He further contended that the driver was not holding valid and effective Driving Licence to drive the motor cycle. He further contended that the driver of the Tata Sumo was also not holding valid and effective Driving Licence and there is breach of policy conditions. As such, he is not liable to pay any compensation. On these grounds he prayed for dismissal of the petition.

5. On the basis of the above pleadings, the Tribunal framed the following issues:

1. Whether the petitioner proves that he sustained injuries in a motor vehicle accident that occurred on 12.05.2012 at about 2.00 p.m. near Degree College, Koratagere, Koratagere-Tumkur Road, due to actionable negligence of driver of TATA Sumo bearing Reg.No.AP-02-TV-1445?

2. Whether the petition is bad for non-joinder of necessary parties?

3. Whether respondent No.2 proves that the driver of TATA Sumo bearing Reg.No.AP-02-TV-1445 was not having valid and effective driving licence to drive the said vehicle on the date of accident?

4. Whether the petitioner is entitled to compensation? If so, what is the amount and who is liable to pay?

5. What order or award?

6. In order to prove the case of the petitioner, petitioner got himself examined as PW1 and also examined Dr.Suresh P.A. as PW2 and got marked the documents Exs.P1 to P39. Respondents have not led any evidence. After hearing the parties to the lis, the impugned judgment and award came to be passed. Assailing the same, the appellant-claimant is before this Court.

7. The main grounds urged by the learned counsel for the appellant are that though the doctor who has treated and has issued the disability certificate has assessed the disability at 67% to the lower limb and 27% to the whole body, the Tribunal has not considered the said fact and by taking the disability at the rate of 15% has awarded the compensation on the lower side. He further contended that the doctor PW2 who came to be examined has deposed that for the future medical expenses an amount of Rs.1,00,000/- is required, but the Tribunal has awarded only Rs.50,000/- under the said head. He further contended that the compensation awarded under the head of loss of income during the laid up period and the other incidental charges is on the lower side and the same requires to be enhanced.

8. Per contra, the learned counsel appearing on behalf of the respondent-insurer vehemently argued by contending that the compensation awarded under the future medical expenses is just and proper, since already the implant has been fixed, only further operation is for the purpose of removal of the said implant. Under such circumstances, so much expenses are not going to be incurred, that too when already for the purpose of main operation he has spent Rs.37,672/-. He further contended that the compensation which has been awarded by the Tribunal is just and proper and the same requires to be confirmed.

9. The accident in question is not in dispute so also involvement of the offending vehicle insured with the respondent-insurer.

10. As could be seen from the judgment and award the claimant has suffered comminuted fracture of right tibia and fibula, right foot CLW of 5 cm length, abrasion over right knee. In order to substantiate the said fact he has also produced the wound certificate as per Ex.P4. In order to prove that he has also suffered the disability, he has examined PW2-Dr.Suresh. In his evidence he has deposed that he has undergone surgery on 14.5.2012 and the patient was discharged on 4.6.2012 and implants have also been fixed and he has further deposed that in order to remove the implant, an amount of Rs.1,00,000/- is required. He has also deposed that, there is disability of 67% in relation to the whole lower limb and 23% permanent disability to the whole body. After taking into consideration the said evidence the Tribunal in the absence of documentary evidence by taking the notional income at the rate of Rs.4,500/- and after taking the disability to the extent of 15% has awarded an amount of Rs.1,29,600/- towards loss of future income. Though under the normal circumstances the method adopted appears to be just and proper, when the evidence of PW2 in his examination has deposed that loss of mobility component of lower limb is 30%, stability component of lower limb is 40%. He has also opined that additional component is 10% and total disability is 67% in relation to the whole lower limb and 23% permanent disability to the whole body. In that light, the Tribunal ought to have taken the disability to the extent of 20% instead of 15% and even the income which has been taken appears to be on the lower side.

11. Since the accident is of the year 2012 and during that particular period the notional income at Rs.7,500/- is the yardstick which even used to be adopted for settlement of cases before the Lok Adalath, in that light, if income is taken at Rs.7,500/- and disability is taken at 20%, then under such circumstances, the appellant-claimant is entitled to Rs.2,88,000/- towards loss of future income. Even as could be seen from the judgment and award passed by the Tribunal, though the Tribunal has awarded an amount of Rs.20,000/- under the head of loss of amenities, the same requires to be enhanced and the same has been enhanced to Rs.30,000/- and even towards the loss of income during the laid up period, by taking the income at the rate of Rs.7,500/- per month, it has to be enhanced to Rs.22,500/- and the compensation awarded under the head of attendant charges, food, nourishment and diet, it is also on the lower side. In that light, an amount of Rs.10,000/- has been awarded under the said head. In so far as the compensation awarded under the head of conveyance charges, pain and sufferings, medical expenses, future medical expenses are concerned, same have been kept in tact.

12. Though the learned counsel for the appellant would contend that PW2 - doctor has deposed that an amount of Rs.1,00,000/- is required for the purpose of future medical expenses, the said doctor has only deposed that he requires another surgery for correction of the right ankle ankylosis and right bimalleolar fracture nonunion deformity and he has not specifically stated what is the exact expenses which are required for the purpose of removal of the implant. Under the said facts and circumstances, I feel that the compensation awarded under the said head appears to be just and proper and the same does not require any enhancement.

13. Keeping in view the above said facts and circumstances, the appellant-claimant is entitled to a total compensation of Rs.4,98,172/-. Since, already the Tribunal has awarded an amount of Rs.3,22,972/-, after deducting the same, the appellant claimant is entitled to an additional compensation of Rs.1,75,200/- with 6% interest.

14. Accordingly, the appeal is allowed in part and the judgment and award passed by the Tribunal is modified as indicated above.

15. The respondent insurer is directed to deposit the compensation awarded by the Tribunal and additional compensation awarded by this Court with up-to-date interest within a period of six weeks from the date of receipt of copy of this order.

The enhanced amount may be released in favour of the appellant-claimant on proper identification and acknowledgement. Remaining amount be disbursed in terms of award.

The Registry is directed to draw the award accordingly.

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