Vaijnath Shankar Varape vs Nimbanna Shivashankar Nimbagav and Others

P.S. Dinesh Kumar, J.—This appeal is by an injured-claimant in M.V.C. No. 227/2014 on the file of the Prl. Senior Civil Judge and Addl. MACT, Belgaum, challenging the judgment and award dated 08.01.2015 for enhancement.

The claimant met with a road traffic accident while riding his motorcycle bearing registration No. KA-22/X-9363 on 14.01.2014 and when a car bearing registration No. KA-28/N-4647 coming from the opposite side which was being driven in a rash and negligent manner dashed against the motorcycle. Claimant suffered grievous injuries and treated as an inpatient in K.L.E. Medical College Hospital.

Claimant presented the instant petition before the Tribunal with a claim for Rs. 65 lakhs. He was examined on commission as PW-1 and a Neuro Surgeon who has issued disability certificate as at Ex. P.9 was examined as PW-2 and 17 documents were marked on behalf of the claimant. No witness was examined on behalf of the respondents. However, documents Ex. R1 to Ex. R3 were marked by consent. After trial, on consideration of the material on record, the Tribunal awarded a sum of Rs. 16,28,000/- as compensation with interest @ 6% p.a. Being aggrieved by the quantum of compensation, the claimant has preferred this appeal for enhancement.

Heard. Sri Harish Maigur, learned counsel for the appellant contended that the Tribunal erred in reckoning the percentage of disability at 75% whereas the medical evidence is unambiguous to the effect that the physical disability suffered by the claimant is 100%. He further contended that the earning capacity of the claimant was arbitrarily assessed at Rs. 8,000/- p.m. in the face of Ex. P.11, the salary certificate produced by the claimant. He further contended that the compensation awarded under the other heads such as ''pain and suffering'' and ''loss of amenities'' are also grossly inadequate. Accordingly, he prays for allowing this appeal.

On the other hand, Sri S.K. Kayakamath, learned counsel appearing for the Insurer supporting the judgment and award, contended that the certificate of disability at Ex. P.9 is issued by a Doctor, who has not actually treated the claimant. Similarly, the salary certificate Ex. P.11 could not have been considered by the Tribunal as the author of the certificate was not examined. Insofar as the compensation under the other heads are concerned, learned counsel submits that the same are adequate and do not call for any interference by this Court and accordingly prays for dismissal of this appeal.

We have carefully perused the contentions urged by the learned counsel for the parties and perused the material papers.

The occurrence of accident and the liability of the Insurer are not in dispute. The question that remains for consideration is the quantum of compensation. The compensation towards ''medical expenses'' has been awarded in full by the Tribunal. So far as the compensation towards loss of future earnings is concerned, having perused Ex. P.9, we are of the view the certificate has been issued by a qualified Neuro Surgeon who has stated that there is permanent physical disability of all four limbs. The said medical evidence of the Doctor has not been impeached by the Insurer. In such circumstances, the finding recorded by the Tribunal to reduce the percentage of disability to 75%, in our opinion, is perverse and requires to be set aside. We are persuaded to accept the disability certificate Ex. P.9 and hold that the disability suffered by the claimant is 100%.

So far as the earning capacity of the claimant is concerned, learned counsel for the Insurer is right in his submission that except placing reliance on Ex. P.11, the claimant has not proved the earning capacity before the Tribunal. The accident has occurred during January, 2014. In the circumstances, notional income of Rs. 8,000/- per month as assessed by the Tribunal does not require any interference. Accordingly, we also hold earning capacity of the claimant at Rs. 8,000/- per month. At the time of accident, claimant was aged 27 years. Therefore, the applicable multiplier is 17. Having gone through the compensation awarded against each head, in our considered view and also having regard to the fact that the claimant has suffered 100% disability and functional disability of all four limbs, compensation towards ''pam and suffering'' and ''loss of amenities'' require enhancement. In the circumstances, we re-assess the compensation as follows:

In the result, we pass the following:

"i) Appeal is allowed in part,

ii) Judgment and award dated 08.01.2015 in M.V.C. No. 227/2014 on the file of the Prl. Senior Civil Judge and Addl. MACT, Belagavi, is modified by awarding an enhanced compensation of Rs. 5,58,000/-;

iii) 2nd respondent-Insurance Company is directed to deposit enhanced compensation with 6% interest from the date of petition till the date of deposit within a period of eight weeks from the date of receipt of copy of this order.

iv) Out of the enhanced compensation, a sum of Rs. 3,00,000/- with proportionate interest shall be kept in a fixed deposit in the name of the claimant for a period of five years and the balance amount shall be disbursed to him.

v) The claimant shall be entitled to withdraw half yearly interest. No costs."