Partly allowed

Satish S/O. Vasudev Pai v. Deepa Dadasaheb Balip

Karnataka HC3 Feb 2017MFA/25282/2012

Case brief

AI extract

What is this about?

The High Court allowed the Motor Accident Appeal partly, holding the Tribunal erred in rejecting compensation for lost earn leave encashment despite witness evidence. The Court awarded additional compensation of Rs. 79,355/- to the claimant while dismissing the claim for loss of future earnings as employment was not lost.

What did the court decide?

Compensation enhanced by awarding Rs. 79,355/- towards loss of leave encashment, with interest at 6% p.a., directed to be deposited by the Insurance Company.

Satish S/O. Vasudev Pai Vs Deepa Dadasaheb Balip — Motor Accident Claims | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 3^rd DAY OF FEBRUARY, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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M.F.A.NO.25282/2012 (MVC)

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BETWEEN

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SATISH S/O. VASUDEV PAI, AGE: 49 YEARS, OCC: POINTSMAN, R/O.KONKAN RAILWAY CORPORATION LTD., R/O.KARKI, TQ: HONAVAR, DIST: UTTAR KANNADA.

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... APPELLANT

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(BY SRI. SHRIHARSH A NEELOPANT, ADV.)

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AND

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Mrs. DEEPA DADASAHEB BALIP, AGE:MAJOR, OCC: OWNER OF LORRY BEARING No. KA-22/A-8468, R/O. ASHETKAR BUILDING, AT POST: KAKTI, P.B. ROAD, BELGAUM.

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, “SAVITRI SADANA”, OPP: KITTLE COLLEGE, DHARWAD.

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... RESPONDENTS

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(BY SRI.RAJASHEKAR S.ARANI, ADV. FOR R-2 R1-NOTICE DISPENSED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 04-10-2012 PASSED IN MVC NO.196/2010 ON THE FILE OF MEMBER, ADDL. MACT, HONAVAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.11.2016, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING : -

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JUDGMENT

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This appeal is by the claimant. The Addl. Motor Accidents Claims Tribunal, Honnavar, by its judgment and award dated 4.10.2012 in MVC.196/2010 awarded compensation of Rs.2,55,000/- with interest at the rate of 6% p.a. from date of petition till realization to the claimant in connection with a road traffic accident that took place on 5.4.2010. Not being satisfied with this award, the claimant is before this court seeking enhancement.

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The details of the accident are that on 5.4.2010 at 9.15 p.m. the claimant was going to his house from railway station riding his bicycle. When he came near a

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cross road at Karki, a lorry bearing Reg.No.KA-22/A8486 being driven in a rash and negligent manner dashed the bicycle from behind and then dashed against a tree. As a result of this accident, the claimant suffered severe injuries to his leg, head and other parts of the body.

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The claimant was shifted to Government Hospital, Honnavar. There he was given first aid treatment and, from there he was shifted to KMC Hospital, Manipal where he was inpatient from 6.4.2010 to 1.5.2010. Because his right leg was crushed in the accident, the portion below the right knee had to be amputated.

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The claimant was working as a point’s man in Konkan Railway Station at Karki and he was drawing a salary of Rs. 19,730/- p.m. For taking treatment, he had to exhaust all the leaves and was compelled to apply for earned leave for more than six months and thus lost an opportunity of encashing his earned leave. He claimed compensation of Rs. 10,00,000/-.

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Respondent No.1, owner of the lorry did not contest the claim petition. The respondent No.2 Insurance Company filed written statement denying all

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the petition averments with regard to age, occupation and monthly income of the claimant. With regard to the accident, it stated that the lorry driver was not negligent while driving the lorry, but it was claimant who suddenly crossed the road negligently. However it admitted the insurance coverage for the lorry and it stated further that its liability under the policy was subject to terms, conditions and limitations. It also contended that the lorry driver did not have valid and effective driving licence on the day when the accident took place.

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The Tribunal held an enquiry. The claimant himself adduced evidence as PW-1 and also examined another witness Mahanta Gowda Sangana Gowda as PW2. He produced 29 documents as per Ex.P.1 to Ex.P.29. From the respondent’s side no witness was examined, however the insurance policy was marked as Ex.R.1. Assessing the evidence, the Tribunal came to the conclusion that the claimant was entitled to an amount of Rs. 2,55,000/- towards just compensation under various heads as given below:

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Pain and Agony	Rs.60,000/-
Conveyance, Food, extra nourishment, attendant and other incidental charges	Rs.20,000/-
Loss of allowances due to accidental injuries	Rs.1,00,000/-
Towards future happiness andloss ofamenitiesin life	Rs.75,000/-
TOTAL	Rs.2,55,000/-

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The tribunal has not granted any amount towards medical expenses because the entire amount spent by him towards treatment was reimbursed to him by Konkan Railways where he is working.

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Assailing this award, the counsel for the claimant argues two points, firstly that the claimant, while under treatment and laid down period, had to apply for earned leave for 187 days. If he had not availed this leave, he had the benefit of encashing that leave and therefore the tribunal should have granted compensation equivalent to the earned leave availed by him. Inspite of the fact that the claimant examined PW-2, Personnel Inspector of Konkan Railways to establish that he had availed the earned leave and was entitled to other allowances, the

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tribunal has not granted any amount towards this head only for the reason that the claimant has not produced any document for having availed the leave. This finding of the tribunal is not correct and therefore now this court has to grant compensation towards loss of earned leave by taking into consideration the salary of the claimant on the date of accident and accordingly compensation needs to be enhanced.

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Secondly that since the claimant’s right leg had to be amputated, he has suffered partial permanent disability and therefore the tribunal should have granted compensation towards loss of future earnings. In this regard, his argument is that the claimant was point’sman and when he was working in this capacity, he was entitled to some other allowances such as over time allowance, national holiday allowance, night duty allowance etc. and now he has lost all these benefits. Therefore the claimant has to be compensated under this head also.

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The counsel for the Insurance Company argues that the compensation awarded to the claimant is just and proper. The claimant has not lost his employment

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because of accident. Even now he is drawing the same salary. Loss of earned leave cannot be compensated because even during the period he was on leave, he was getting the salary and that the claimant who has adduced evidence as PW-1, has admitted in the cross examination that he was getting the same salary when he availed earned leave. Moreover the claimant has not produced any document in proof of having availed earned leave and therefore the tribunal has rightly rejected the claim for compensation towards this head.

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The two points urged by claimant’s counsel need to be answered. The tribunal has denied the compensation towards leave encashment only for the reason that the claimant did not produce any document in proof of sanction of earned leave. By giving a finding like this, it can be said that the tribunal has committed an error and has not appreciated the evidence placed before it properly. The claimant who adduced evidence as PW-1 has clearly stated in his affidavit filed in lieu of examination–in-chief that he was compelled to apply for earned leave for more than six months and thereby lost leave encashment facility. If his cross examination is

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perused, nothing is elicited to disbelieve his evidence in chief on this aspect. Rather a suggestion is given to the effect that he was getting salary even when he was on earned leave. Therefore from this suggestion, the inference that can be drawn is that the respondent No.2 Insurance Company also does not dispute the availment of earned leave by the claimant.

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PW-2 is a personal inspector of Konkan Railways working at Karwar. He has very clearly stated in Para 6 of his affidavit that 187 days of earned leave had been sanctioned to the claimant and that if he had not availed this leave, he could have surrendered that leave for encashment and thus there was a loss to him. PW-2 has not at all been cross examined on this point. Therefore the evidence of PW-2 becomes trustworthy. Moreover the claimant who underwent amputation of his right leg below the knee, could not have been in a position to resume to his office duty immediately after treatment. It requires a few months to completely recover from the injuries and also the shock that he suffered due to accident and therefore in the circumstances, that tribunal could have presumed that the claimant had availed the

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earned leave. Instead of appreciating the evidence, denial of compensation by the tribunal for pecuniary loss on account of availing the earned leave in his account, can be said to be an error. Definitely if the accident had not taken place, there was no occasion for the claimant to apply for earned leave continuously for 187 days. It was a loss to him and he could be compensated under this head. In this context it may be relevant to refer to the Judgment of the Madras High Court in the case of

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P.N.Palani Vs. Mico Plast Industries and another -

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2001 ACJ 1007 . In Para 5 of the said judgment, it is clearly held as below:

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“5. It is not in dispute that what the claimant had availed of was the privilege leave and at the time he retires from service he will not be in a position to encash the same. This would, therefore, entitle the claimant to be paid a salary for the five months period when he was treated in the hospital. It is not disputed that his salary during the five months period amounts to a sum of Rs.32,750. The total thus comes to a sum of Rs. 86,750”.

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The claimant was drawing a salary of Rs. 19,730/- p.m. on the date of the accident or when he availed the earned leave. Earned leave has to be calculated by taking into consideration the basic pay and dearness allowance. The learned counsel for the appellant has filed a memo to the effect that the basic salary of the claimant was Rs. 9,430/- and he was getting D.A. of Rs.3,301/-, total being Rs. 12,731/-. So total loss of leave encashment has to be calculated by taking 1/30^th of the total multiplied by number of days availed towards earned leave. This comes to 424.36 x 187 = 79,355.32 rounded of to Rs.79,355/-.

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With regard to the second point of the argument of the learned counsel what needs to be observed is that the claimant is not entitled to claim any compensation towards loss of future prospectus. Though the claimant suffered severe injures and his right leg had to be amputated, but he has not lost his employment. According to the Rules of the Konkan Railways, the claimant, on medical grounds, was transferred to other department and he is now working as General Assistant getting the same salary. There is no loss of employment.

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It is true that he has lost the other allowances, but it cannot be said that he can claim compensation for having lost those allowances. Those extra allowances given are attached to the post of point’sman. The learned counsel has relied upon two Rulings of the Supreme Court. In the case of Dinesh Singh Vs. Bajaj Insurance Company Ltd., and another (2014) 9 SCC 241 , the injured was a B.E. Graduate in Metallurgy and was working as a quality engineer in Hospet Steels Ltd. Because of accident that he suffered, there was amputation of his left leg and therefore he could not work in the establishment where he was working and he had to resign and take up a job in Industrial Development Bank of India. He was a bachelor at the time of accident and he lost marriage prospectus also. So for these reasons the Hon’ble Supreme Court had to hold that because of partial permanent disability, there was loss of career prospectus also for awarding compensation under this head.

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In the case of R.D. Hattangadi Vs. M/s. Pest

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Control (India) Pvt. Ltd., and others, the claimant was an advocate, owing to accident he became crippled and bound to the wheel chair. He also became paraplegic. So

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the facts of this case are not applicable to the case on hand before this court.

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Even otherwise the tribunal has considered the point that the claimant lost some allowances which he was getting being a point’sman and therefore has granted an amount of Rs. 1,00,000/-. So when this aspect has been considered by the tribunal, this argument of learned counsel cannot be appreciated now.

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Therefore from the above discussion, it has to be now concluded that compensation can be enhanced by awarding Rs.79,355/- towards loss of leave encashment.

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Accordingly the following order:

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i. Appeal is allowed partly.

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ii. The judgment and award dated 4.10.2012 in MVC.196/2010 is modified. It is held that the claimant is entitled to another sum of Rs.79,355/- along with interest at 6% p.a. from date of petition till date of payment in addition to the compensation already awarded by the tribunal.

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iii. No order as to costs.

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The Insurance Company is hereby directed to deposit the enhanced amount within four weeks from today.

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Sd/JUDGE

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Satish S/O. Vasudev Pai v. Deepa Dadasaheb Balip

Case brief

What is this about?

What did the court decide?

Satish S/O. Vasudev Pai v. Deepa Dadasaheb Balip

Case brief

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