SRI.N.L.NAGESH S/O LALITESHAPPA vs SRI.DHONDIRAM MAHADEV KASTURE

Heard the learned counsel for the appellant and the learned counsel for the respondent Nos.2 and 4.

This appeal has been preferred by the claimant/appellant against the judgment and award dated 3rd April 2009 passed in MVC No.1012/2004 on the file of the 1-Addl. Civil Judge (Sr.Dn.) and MACT, Belgaum by awarding compensation of Rs.1,50,620/- with 6% interest except on the amount awarded towards future medical expenses from the date of petition till deposit. The liability has been fastened jointly and severally on the respondent Nos.1 to 3.

The factual matrix of the appeal are as under: On 28.07.2003 the petitioner along with his friend were travelling in Maruti Van bearing No.KA-05/MA-5772 from Hubballi towards Belagavi to see relative of his friend, which was driven by his friend with moderate speed after observing all traffic rules and regulations. When the said Maruti Van came near Kadron Village on P.B. Road, a Tata Sumo bearing No.MH.09/D-3888, which came from behind driven in a rash and negligent manner with high speed, driver of the said vehicle lost control over the vehicle and dashed to Maruti Van causing accident by which, both vehicles toppled by side of road. Due the said impact, the claimant has suffered grievous injuries. Immediately, he was shifted to PHC, M.K.Hubli and then to KLE Hospital Belgaum for further treatment. It is further stated that the claimant being the injured was hale and healthy prior to the accident and serving as salesman in Silk Shop of one Dhondusa on a salary of Rs.5,000/- per month out of which he used to maintain his family. It is further contended that the accidental injuries have caused him permanent disability and he has lost his earning capacity. Hence, he filed claim petition seeking compensation against the respondents.

On receipt of summons, respondent Nos.1 and 3, remained absent and they have been placed exparte. Respondent Nos.2 and 4 have filed their separate objections in detail and has taken contention that the age, occupation and income of the deceased are not within the knowledge of the respondent No.1. Therefore, seeking dismissal of the petition.

Based upon the pleadings of the parties, the Tribunal has framed the following issues: 1. Whether the petitioner proves that alleged accident was occurred due to the negligence on the part of the driver of Tata Sumo Vehicle bearing Reg.No.MH-09/D- 3888 resulted in grevious injury to him?

Whether petitioner is entitled for compensation? If so, what is the quantum and from whom?

What order or award? Addl. Issue:

Whether R2 proves that alleged accident was due to sole negligence on part of driver of Maruti Car?

In the order to establish the case, the petitioner got himself examined as PW1 and also examined the Doctor as PW2 and produced the documents at Exs.P1 to P10. Subsequently, the Officer of the Insurance Company was examined as RW1 and also marked the Insurance Policy as Ex.R1 and closed their side. The Court below having gone through the evidence of PW1 and the documents which has been produced and awarded compensation of Rs.1,50,620/- with interest at the rate of 6% p.a. from the date of petition till depositing the entire amount and directed the respondent Nos.2 and 3 to deposit the compensation amount within four weeks from the date of this order. However, the Tribunal has dismissed the claim petition as against respondent No.4, the insurer of the Maruti Omni. Seeking enhancement of the compensation, the claimant has preferred this appeal.

Heard the learned counsel for the appellant and the learned counsel for the respondents.

It is contended by the learned counsel for the appellant during the course of arguments that the Tribunal passed the impugned judgment and award by committing an error on the basis of the facts and evidence of the case on record that the Tribunal has committed an error in assessing the disability at 8% to the whole body as against 35% as assessed by the Doctor. Though, PW2-Doctor, who subjected to examine the injured and also given treatment as he assessed the disability to the extent of 35% to the right upper limb, despite of it, the Tribunal has allowed the petition in part and awarded compensation, which has been questioned by preferring this appeal on various grounds. But the Tribunal has considering all these facts as well as the evidence and also the evidence of PW2, the Doctor, who subjected to examine him and issued disability certificate, but the Tribunal has wrongly held that the disability at 8% to the whole body so as to determine his earning capacity. It is further pointed out that the multiplier made applicable should be based upon the judgment in the case of Sarla Varma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1209, wherein the table of multiplier is given. According to which, the appropriate multiplier between the age of 26 of 30 would be 17 as against 16. Hence, it is required to be modified. Therefore, in this appeal it is requires to be re-appreciated the evidence on record. It is further contended that the insofar as the loss of amenities and future unhappiness the Tribunal has awarded a sum of Rs.10,000/-, which is also on the lower side, though the injured who has sustained the injuries. Therefore, the compensation awarded by the Tribunal is required to be enhanced by keeping in view of the evidence adduced by the claimant petitioner seeking for enhancement of compensation as he sought for.

Further, the Doctor has assessed the total disability at 35% as against which the Tribunal has taken 8%. Having regard to the nature of injuries, extent of permanent physical disability sustained by the claimant, this Court is of the considered view that it would be just and appropriate to take the disability at 15% as against 8%.

Per Contra, the learned counsel appearing for the insurer submitted that the Tribunal, on appreciation of the evidence/material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.

Based upon the evidence of PW1, as well as the ratio of the judgment in the case of Sarla Verma, the appropriate multiplier for the age group between 26 to 30 years would be 17. In the case on hand the injured claimant was aged about 30 years. Therefore, it requires to be revisiting the impugned judgment insofar as the compensation towards ?loss of future earning capacity due to disability'', due to permanent disability of the claimant/petitioner by taking the avocation as salesman in the shop of Dhondusa is required to be re-determined. Hence, the compensation payable towards loss of future earning capacity would be Rs.1,37,700/- as against Rs.69,120/- awarded by the Tribunal. The compensation of Rs.10,000/- awarded by the Tribunal under the head loss of amenities is slightly on the lower side. It would be just and appropriate to award another sum of Rs.10,000/- under this head, which would meets the ends of the justice. Therefore, the compensation awarded by the Tribunal is reassessed as under:

Accordingly, the appeal is allowed in part. In modification of the impugned Judgment and award dated passed by the 1-Addl. Civil Judge (Sr.Dn.) and MACT, Belgaum in MVC No.1012/2004, the compensation payable to the claimant is enhanced from 1,50,620/- to Rs.2,29,200/-. The enhanced compensation would comes to Rs.78,580/-.

This Court by order dated 13.10.2015, dismissed the appeal as against respondent No.3, the owner of the maruti omni bearing No.KA-05/MA-5772. Indisputably, in the case on hand, two vehicles are involved in the accident. The Tribunal, by the impugned award has exonerated the respondent No.4, the insurer of the Maruti Omni and saddled the liability to pay the compensation on respondent 1. Mental agony, pain and suffering Rs.30,000/-

Medical expenses Rs.18,000/-

Incidental expenses Rs.5,000/-

Loss of income during period of treatment and rest Rs.13,500/-

Loss of future earnings due to disability Rs.1,37,700/-

Loss of amenities, comforts, happiness etc., Rs.20,000/-

Future medical expenses Rs.5,000/-

TOTAL Rs.2,29,200/-

Nos.2 and 3 i.e., the insurer of the TATA Sumo and the owner of the Maruti Omni. Under such circumstances, the 2nd respondent-insurer is fastened liability to pay the enhanced compensation. The second respondent, the insurer of TATA Sumo bearing No.MH-09/3888 shall deposit the enhanced compensation with interest before the Tribunal within four weeks from the date of receipt of certified copy of this Judgment. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.

There shall be no order as to the costs. Office to draw the award accordingly.