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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 23RD DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL MISCELLANEOUS FIRST APPEAL NO.102593 OF 2015(MV)
BETWEEN
THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO.LTD., AT RAMDEV GALLI, BELAGAVI, (INSURER OF MARUTI OMNI NO.KA-25.N.3858 POLICY NO.602506/31/10/61400007845 VALID FROM 18.2.11 TO 17.2.12 REPRESENTED BY ITS Deputy MANAGER THE NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE ARIHANTH PLAZA KUSUGAL ROAD, HUBLI. ... APPELLANT (By Sri G N RAICHUR, ADV.)
AND
ABEEJEET PRAKASH HUNUMSHET AGE: 32 YEARS, OCC: BUSINESS (NOW NIL) R/O: H.NO.3512 NAVEKAR GALLI, BELAGAVI.
DATTU MUKURI VADDAR AGE: MAJOR, OCC: BUSINESS, R/O: KERWAD, PO: HOUVAGI, TQ: HALIYAL, DIST: U.K. ... RESPONDENTS (RESPONDENTS ARE SERVED))
2 THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT & AWARD DATED:17.04.2015, PASSED IN MVC.NO.820/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING THE COMPENSATION OF RS.4,59,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the insurer assailing the judgment and award dated 17.04.2015 passed by the III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Belagavi, in MVC No.820 of 2013.
Heard. The appeal is admitted and with the consent of the learned counsel for the appellant, it is taken up for final disposal. Though notices on the respondents are served, they have neither appeared nor engaged any counsel.
3 3. The brief facts of the case as per the petition are that on 16.06.2011 at about 9.00 a.m., the petitioner-Abeejeet was proceeding on his motor cycle and when he came near Ayyappa temple cross at Haliyal Town, a Maruti Omni car bearing registration No.KA.25.N.3858 driven by its driver came rashly and negligently and dashed to the motor cycle on which he was proceeding. As a result of the said impact, he fell down and sustained grievous injuries. Immediately he was shifted to Government Hospital, Haliyal, and after first aid, he was shifted to Sita Ram Mokashi Memorial Orthopedic Hospital, Dharwad, wherein he was admitted as an inpatient for a period of one month and has spent Rs.90,000/- towards medical expenses. He further contended that he was hale and healthy before the accident and was earning Rs.20,000/- per month by carrying on business in sand and building materials. He further contended that because of the accidental injuries, he is not comfortable and is not in a position to work properly and has suffered loss in his income. As such a claim petition was filed.
In pursuance to the notice, respondent No.1 appeared through counsel but did not file any objections. Respondent No.2 appeared and filed his written statement by denying the contents of the
4 petition. He further contended that the liability of the insurer is subject to proof of policy, insurance coverage and terms and conditions of the policy. On these grounds he prayed for dismissal of the appeal.
On the basis of the above pleadings, The Tribunal framed the following issues:
Whether the petitioner proves that due to the rash and negligent driving of the Maruti Omni bearing No.26/N-3858 the accident happened and in the said accident, she has sustained injuries? 2. Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom? 3. What order or award?.
The petitioner in order to prove his case, got examined himself as PW-1 and also got examined the Doctor-A.B. Patil as PW-2 and got marked Exs.P-1 to P- 17. On behalf of the respondents, they have not chosen to lead any evidence but, however, respondent No.2, with consent, got marked the insurance policy as Ex.R-1. After hearing the parties to the lis, the impugned judgment and award was passed.
5 4. Assailing the same, the insurer is before this Court challenging only on the quantum of compensation awarded by the Tribunal.
The grounds urged by the learned counsel for the appellant are that though the records clearly indicate that there is increase in the income of the appellant/claimant after the accident and there is no loss of income, the Tribunal has taken the income tax assessment and has awarded the compensation under the head loss of future earning by accepting the disability at 13% to the whole body as stated by PW-2. He further contended that the Tribunal has wrongly added 50% of the income to the salalry towards future prospects, which is not justifiable. He further contended that even the compensation awarded under other heads is on the higher side. On these grounds he prayed for allowing the appeal by awarding just compensation to respondent No.1-claimant.
The accident in question so also the offending vehicle being insured with the appellant are not in dispute.
As could be seen from the judgment and award of the Tribunal and also the wound certificate- Ex.P-7, respondent No.1-claimant has sustained abrasion of 6x6 cm over mentum and tenderness over right thigh. The doctor, who has been examined as PW- 2 and has issued Ex.P-11-disability certificate, has deposed that the claimant has sustained 40% disability to the left lower limb. The Tribunal by taking 1/3rd of the disability and the income at Rs.7,000/- per month and by adding 50% of the income towards future prospects and applying the multiplier of 16, has awarded the compensation of Rs.2,62,080/- under the head loss of future earnings. Though in the normal circumstance, the said method appears to be just and proper but as could be seen from the records, the
7 income tax returns which have been filed clearly indicates that the claimant has not lost earning capacity and as such there is no loss of income. But, however, the Tribunal erred in adding 50% of the income towards future prospectus. While assessing the loss of future income, the effect of disability on the earnings has to be taken into consideration and thereafter just compensation has to be awarded. If that were to be adapted, then under such circumstance, the responden No.1t-claimant is entitled to an amount of Rs.1,74,720/- (7000/-x12x16x13%) towards loss of future earning capacity.
As could be seen from the impugned judgment and award, the compensation awarded under medical expenses, towards pain and suffering, loss of income during the laid up period, conveyance charges, attendant charges, special diet, food and nourishment appears to be correct and needs no interference. But,
8 however, the compensation awarded under loss of amenities appears to be on the lower side. Though no compensation is awarded under the head loss of expectation of life, the Tribunal has awarded a sum of Rs.10,000/-.
However, if the said amount of Rs.10,000/- is added to loss of amenities, it would meet the interest of justice.
In the light of the above discussion, the compensation awarded by the Tribunal is reduced to an extent of Rs.87,360/- which is an excess amount awarded by the Tribunal. Keeping in view the above said facts and circumstances, respondent No.1/claimant is entitled to a total compensation of Rs.3,71,720/- with 6% interest.
Accordingly, the appeal is allowed in part. Respondent No.1/claimant is entitled to total compensation of Rs.3,71,720/- with 6% interest per
9 annum from the date of petition till the date of realization. The judgment and award passed by the Tribunal in MVC No.820 of 2013 is modified as indicated above. The appellant/insurance company is directed to deposit the award amount within six weeks from the date of receipt of a certified copy of this judgment.
Registry is directed to draw the award accordingly.
The amount in deposit may be transmitted to the jurisdictional Tribunal forthwith.
Sd/- JUDGE
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