Partly allowed

Basavaraj S/O Kotrappa Shettar @ Basavaraj v. the Divisional Controller

Karnataka HC15 Oct 2019MFA/103914/2015

Case brief

AI extract

What is this about?

The High Court allowed appeals filed by accident claimants and dismissed appeals by the bus corporation. The Tribunal's awards were modified, and compensation was reassessed by adjusting notional income to Rs. 7,500 per month based on a Lok Adalat chart and correcting the multiplier for future loss of earnings while upholding the disability assessment.

What did the court decide?

Compensation reassessed to Rs. 2,60,000/-, Rs. 2,11,600/-, and Rs. 1,79,400/- for three respective claimants, directed to be deposited and disbursed.

Basavaraj S/O Kotrappa Shettar @ Basavaraj Vs the… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF OCTOBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MISCELLANEOUS FIRST APPEAL No.100320 of 2016 c/w MISCELLANEOUS FIRST APPEAL Nos.100321 of 2016, 100316 of 2016, 103912 of 2015, 103914 of 2015 and 103913 of 2015 (mv)

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IN MFA NO.100320 OF 2016 BETWEEN:

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... APPELLANT

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(By Smt SHASHIKALA L DESAI, ADV)

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AND:

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BASAVARAJ S/O KOTRAPPA SHETTAR @ BASAVARAJ SHETTAR ANGADI AGE: 51 YEARS, OCC: TEA STALL AND KHARA VENDOR, R/O: HIREHADAGALI VILLAGE IN HUVINAHADAGALI TALUKA, DIST: BELLARY, NOW AT MARUTINAGAR, RANEBENNUR, DIST: HAVERI

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... RESPONDENT

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(By Sri. GIRISH S HULMANI, ADV.)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES

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ACT, AGAINST THE JUDGMENT & AWARD DATED:16.10.2015 PASSED IN MVC.NO.877/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, AWARDING THE COMPENSATION OF RS.1,46,400/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO.100321 OF 2016 BETWEEN:

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THE DIVISIONAL CONTROLLER KSRTC HAVERI DIVISION, HAVERI DIST: HAVERI, (OWNER AND SELF-INSURER OF THE KSRTC BUS BEARING REGD. NO.KA-42/F-292) R/BY CHIEF LAW OFFICER NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBBALLI (By Smt. SHASHIKALA L DESAI, ADV) AND: MANJULA W/O SATYANARAYAN AGE: 36 YEARS, OCC: TAILORING WORK & HOUSEHOLD WORK, R/O: MOTHER TERASA SCHOOL, HOGESANDRA BENGALURU NOW AT MARUTINAGAR RANEBENNUR, DIST: HAVERI (By Sri. GIRISH S. HULMANI, ADVOCATE)

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... APPELLANT

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... RESPONDENT

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT & AWARD DATED:16.10.2015, PASSED IN MVC.NO.876/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, AWARDING THE COMPENSATION OF RS.1,69,900/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO.100316 OF 2016 BETWEEN:

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THE DIVISIONAL CONTROLLER KSRTC HAVERI DIVISION, HAVERI DIST: HAVERI, (OWNER AND SELF-INSURER OF THE KSRTC BUS BEARING REGD. NO.KA-42/F-292) R/BY CHIEF LAW OFFICER NWKRTC, CENTRAL OFFICE, GOKUL ROAD, HUBBALLI (By Smt. SHASHIKALA L DESAI, ADV) AND: ASHA W/O SHRAVANKUMAR, AGE:30 YEARS, OCC:TAILORING WORK & HOUSEHOLD WORK, R/O: HIREHADAGALI VILLAGE IN HUVINAHADAGALI TALUK, NOW AT: MARUTINAGAR, RANEBENNUR, DIST: HAVERI.

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... APPELLANT

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... RESPONDENT

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(By Sri. GIRISH S HULMANI, ADV. )

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT & AWARD DATED:16.10.2015, PASSED IN MVC.NO.875/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, AWARDING THE COMPENSATION OF RS.1,98,800/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO.103912 OF 2015 BETWEEN:

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ASHA W/O SHRAVANKUMAR AGE:29 YEARS, OCC. TAILORING AND HOUSEHOLD WORK NOW NIL R/O HIREHADAGALI, TQ. HUVINAHADAGALI, NOW AT

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MARUTINAGAR, RANEBENNUR TQ. RANEBENNUR, DIST. HAVERI

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... APPELLANT

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(By Sri. G S HULMANI, ADV.)

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AND: THE DIVISIONAL CONTROLLER KSRTC HAVERI DIVISION HAVERI TQ & DIST. HAVERI

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... RESPONDENT (By Smt. SHASHIKALA L DESAI, ADV. ) THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT 1988, AGAINST THE JUDGMENT & AWARD DATED:16.10.2015, PASSED IN MVC.NO.875/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.103914 OF 2015 BETWEEN

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BASAVARAJ, S/O KOTRAPPA SHETTAR @ BASAVARAJ SHETTAR ANGADI AGE:51 YEARS, OCC. TEA STALL, NOW NIL, R/O HUIREHADAGALI TQ. HUNIVAHADAGALI, DIST. BELLARY NOW AT MARUTINAGAR, RANEBENNUR, TQ RANEBENNUR, DIST. HAVERI

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... APPELLANT (By Sri. G S HULMANI, ADVOCATE)

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AND: THE DIVISIONAL CONTROLLER KSRTC HAVERI DIVISION HAVERI TQ & DIST. HAVERI

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... RESPONDENT

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(By Smt. SHASHIKALA L DESAI, ADV.)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 16.10.2015 PASSED IN MVC NO.877 OF 2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.103913 OF 2015 BETWEEN:

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MANJULA W/O SATHYANARAYANA AGE:36 YEARS, OCC. TAILORING AND HOUSEHOLD WORK, NOW NIL R/O NEAR MOTHER TERESA SCHOOL HOGESANDARA, BENGALURU NOW AT MARUTINAGAR, TQ.RANEBENNUR DIST. HAVERI

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... APPELLANT

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(By Sri. G S HULMANI, ADV.)

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AND:

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THE DIVISIONAL CONTROLLER KSRTC HAVERI DIVISION HAVERI TQ & DIST. HAVERI

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... RESPONDENT

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(By Smt. SHASHIKALA L DESAI, ADVOCATE )

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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 16.10.2015 PASSED IN MVC NO.876 OF 2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA Nos.103912 of 2015, 103914 of 2015 and 103913 of 2015 are filed by the claimants and MFA Nos.100320 of 2016, 100321 of 2016 and 100316 of 2016 are filed by the Corporation challenging the common judgment and award dated 16th October 2015 passed by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Ranebennur in MVC Nos.875, 876 and 877 of 2014.

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Brief facts of the case are that on 15.05.2014 at about 18.00 hours on Guttal-Mailar road at Kancharagatti cross when all the claimants were proceedings in a KSRTC bus bearing registration No.KA.42/F-292 from Hadagali towards Guttal, the driver of the said bus drove the bus in a rash and negligent manner and caused the accident. Due to which the claimants sustained grievous injuries and were taken to Government hospital, Haveri, for first aid treatment and the claimants in MVC Nos.875 of 2014 and 876 of 2014

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were shifted to Gurushri hospital, Davangere and the claimant in MVC No.875 of 2014 was taken to Government hospital, Shiggav. After recovering from injuries, the claimants have filed the claim petitions in MVC Nos.875 of 2014, 876 of 2014 and 877 of 2014 seeking compensation.

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To establish their case, the claimants in MVC Nos.876 and 877 of 2014 examined themselves as PWs.2 to 3, respectively, and claimant in MVC No.875 of 2014, examined herself as PW-1. They also examined the doctors as PWs.4 and 5 and got marked 59 documents. On behalf of the respondent, the driver of the offending bus was examined as RW-1 and they got marked two documents.

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On appreciation of the oral and documentary evidence on record, the Tribunal allowed MVC Nos.875 of 2014, 876 of 2014 and 877 of 2014 in part by awarding compensation of Rs.1,98,800/-, Rs.1,69,900/and Rs.1,46,400/-, respectively, with interest at the rate of

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7% p.a. Being aggrieved by the same, the claimants

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have filed MFA Nos.103912 of 2015, 103914 of 2015 and 103913 of 2015 seeking enhancement of compensation and the corporation has filed MFA Nos.100320 of 2016, 100321 of 2016 and 100316 of 2016 challenging the quantum of compensation awarded by the Tribunal.

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Heard the learned counsel for the parties and

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perused the records.

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6. MFA No.100316 of 2016 and MFA No.103912

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of 2015 in MVC No.875/2014:

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Learned counsel for the claimant contended that due to the accident, the claimant has sustained 3 injuries. One simple injury and two are grievous in nature. The Tribunal was not justified in granting only Rs.25,000/- under the category of pain and suffering. He further contended that he was an inpatient for a period of 12 days. The Tribunal has granted only Rs.2,000/- for nourishment and conveyance charges. Thirdly he contended that at the time of the accident the

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deceased was earning Rs.15,000/- per month. The Tribunal is not justified in taking only Rs.4,500/- per month as income of the claimant. He further contended that the claimant has examined Dr. S.D. Tandi as PW-5. PW-5, in his deposition, has clearly stated that there is disability to an extent of 45%. The Tribunal has erred in taking the percentage of disability to the whole body at 10%. Hence, he sought for enhancement of compensation.

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Learned counsel appearing for the Corporation submitted that the injuries suffered by the claimant are all minor injuries. The claimant has not undergone any surgery. Therefore, the compensation awarded by the Tribunal under the category of pain and suffering is on the higher side. She further contended that even though the claimant has claimed that she was earning Rs.15,000/- per month, she has not produced any document to establish the same. Therefore, the Tribunal has rightly taken the notional income of the claimant as

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Rs.4,500/- per month. In respect of disability is concerned, PW-5-doctor has stated that disability suffered by the claimant is 45% but PW-5 is not the treated doctor. Therefore, the Tribunal has rightly assessed the disability as 10%. Hence, she sought for reduction of compensation.

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Heard the learned counsel for the parties.

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The claimant has suffered 3 injuries:

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(1) fracture of 7^th and 8^th ribs on the right side,

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(2) fracture of greater tuberosity at left shoulder (3) blunt injury on the left elbow.

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3^rd injury is simple in nature and other two injuries are

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grievous in nature. Therefore, the Tribunal has rightly granted compensation of Rs.25,000/- under the category of pain and suffering. The claimant was inpatient for a period of 12 days. Considering the same, the Tribunal has rightly granted compensation of Rs.2,000/- under the head of attendant and conveyance charges. Though the claimant has claimed that at the time of the accident she was earning Rs.15,000/- per month, she has not

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produced any document to establish the same. While assessing the notional income, the Tribunal has considered Rs.4,500/- per month which is on the lower side. This Court in catena of decision, while assessing the notional income, is considering the chart prepared by the Lok Adalat. As per the chart, for the accident occurred in the year 2014, notional income has been fixed at Rs.7,500/-. Accordingly, notional income of the claimant is considered as Rs.7,500/-. Even though PW-5 has deposed that there is 45% disability to the whole body, but he is not the treated doctor. The Tribunal considering the wound certificate and other documents produced by the claimant, has rightly assessed the disability to an extent of 10%. Accordingly, loss of future income is re-assessed as follows:

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7500x12x17x10/100=1,53,000/-

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The compensation awarded under other heads is confirmed.

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Accordingly, the judgment and award passed by the Tribunal is modified as follows:

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Rs.

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1	Painand suffering	25,000/-
2	Medicalexpenses	60,000/-
3	For food, diet, nourishment and attendant charges	2,000/-
4	Loss of income during laid up period	10,000/-
5	Loss of futureincome	1,53,000/-
6	Loss of amenities and enjoyment of life	10,000/-
	Total	2,60,000/-

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The claimant is entitled to reassessed compensation of Rs.2,60,000/- as against Rs.1,98,800 awarded by the Tribunal.

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10. MFA No.100321 of 2016 and MFA No.103913

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of 2015-in MVC No.876/2014:

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Learned counsel for the claimant contended that due to the accident, the claimant has sustained fracture of distal radius of right wrist, fracture of super public rami of left hip and other grievous injuries all over the body. The Tribunal was not justified in granting only

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Rs.25,000/- under the category of pain and suffering. Secondly, he contended that the claimant was an inpatient for a period of 10 days but the Tribunal has granted only Rs.2,000/- under the category of food, nourishment and conveyance and attendant charges. Thirdly, he contended that at the time of the accident, the deceased was earning Rs.10,000/- per month. The Tribunal was not justified in taking only Rs.4,500/- per month as income of the claimant. He further contended that the claimant has examined Dr. Umanath R. Ullal as PW-4. PW-4, in his deposition, has clearly stated that there is disability to an extent of 40%. The Tribunal has erred in taking the percentage of disability to the whole body at 8%. Hence, he sought for enhancement of compensation.

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Learned counsel appearing for the Corporation

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submitted that the injuries suffered by the claimant are all minor injuries. Therefore, the compensation awarded by the Tribunal under the category of pain and suffering

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is on the higher side. She further contended that even though the claimant has claimed that she was earning Rs.10,000/- per month, she has not produced any document to establish the same. Therefore, the Tribunal has rightly taken the notional income of the claimant as Rs.4,500/- per month. In respect of disability is concerned, PW-4-doctor has stated that disability suffered by the claimant is 40% but PW-4 is not the treated doctor. Therefore, the Tribunal has rightly assessed the disability as 8%. She further submits that at the time of accident, the claimant was aged about 31 to 35% years. As per the law laid down by the Hon’ble Apex Court in the case of Sarla Verma and others v. Delhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 , the multiplier has to be taken as 16. But the Tribunal has erred in taking the multiplier as 17. Hence, she sought for reduction of compensation.

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Heard the learned counsel for the parties.

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13. Due to the accident, the clamant has suffered

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(1) facture of distal radius of right wrist,

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(2) fracture of super public rami of left hip

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(3) multiple abrasion over the palm aspect of the hand.

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3^rd injury is stated to be simple in nature. Only 1 and

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2 injuries are certified to be grievous in nature. Therefore, the Tribunal has rightly granted compensation of Rs.25,000/towards pain and suffering. Since the claimant was inpatient for a period of ten days from 17.05.2014 to 26.05.2014, the Tribunal has rightly granted just and proper compensation of Rs.2,000/- on the head of diet, food, nourishment, attendant and conveyance charges. Even though the claimant has claimed that she was earning Rs.10,000/- per month, she has not produced any document to establish the same. Under this circumstance, the Tribunal was left with no other option but to assess the notional income. While assessing the notional income, the Tribunal has considered Rs.4,500/- as income per month, which is

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on the lower side. As per the chart prepared by the Lok Adalat, for the accident occurred in the year 2014, notional income has been fixed at Rs.7,500/- per month. Accordingly, the notional income of the claimant is taken as Rs.7,500/- per month. At the time of the accident, the claimant was aged 31 years. As per the law laid down by the Hon’ble Apex Court in the case of Sarla Verma (supra), the multiplier has to be taken as 16. The Tribunal has erred in taking the multiplier of 17. Accordingly, multiplier of 16 is adopted. PW-4 Dr. Ullal has deposed that there is 40% disability. Since he is not the treated doctor, the Tribunal on the basis of the wound certificate issued and the injuries suffered by the claimant, has rightly assessed the whole body disability to an extent of 8%. Accordingly, the loss of future earnings is reassessed as follows:

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7500x12x16x8/100=1,15,200/-

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Except compensation under loss of future earnings,

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the compensation awarded by the Tribunal under all

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other heads is just and proper. Hence, the same is retained.

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Accordingly, the appeal filed by the claimant is allowed in part. The judgment and award of the Tribunal is modified as under:

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		Rs.
1	Pain and suffering	25,000/-
2	Medical expenses	54,400/-
3	For food, diet, nourishment and attendant charges	2,000/-
4	Loss of income during laid up period	10,000/-
5	Loss of future income	1,15,200/-
6	Loss of amenities and enjoyment of life	10,000/-
	Total	2,16,600/-
	LESS Interim Relief Paid 5,000/-
	Total Rs.2,11,600/-

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The claimant is entitled to reassessed compensation of Rs.2,11,600/- as against Rs.1,69,900/- awarded by the Tribunal.

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14. MFA No.103914 of 2015 and MFA No.100320

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of 2016-in MVC No.877 of 2014:

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Learned counsel for the claimant contended that

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due to the accident, the claimant has sustained

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1. tenderness over scared region,

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2. abrasion over the chin and

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3. pain in the back.

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3^rd injury is said to be grievous in nature. The Tribunal was not justified in granting only Rs.25,000/under the category of pain and suffering. Secondly, he contended that the claimant was inpatient for a period of 6 days. The Tribunal has granted only Rs.2,000/- for nourishment and conveyance charges.

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Thirdly he contended that at the time of the accident, the deceased was earning Rs.15,000/- per month. The Tribunal is not justified in taking only Rs.5,000/per month as income of the claimant. He further contended that the claimant has examined Dr. S.D. Tandi as PW-5. PW-5, in his deposition, has clearly stated that there is permanent disability to an extent

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of 45%. The Tribunal has erred in taking the percentage of disability to the whole body at 10%. Hence, he sought for enhancement of compensation.

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Learned counsel appearing for the Corporation submitted that the injuries suffered by the claimant are all simple in nature. Therefore, the compensation awarded by the Tribunal under the category of pain and suffering is on the higher side. She further contended that even though the claimant has claimed that he was earning Rs.15,000/- per month, he has not produced any document to establish the same. Therefore, the Tribunal has rightly taken the notional income of the claimant as Rs.5,000/- per month. In respect of disability is concerned, PW-5-doctor has stated that disability suffered by the claimant is 45% but PW-5 is not the treated doctor. Therefore, the Tribunal has rightly assessed the disability as 10%. Hence, she sought for reduction of compensation.

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Heard the learned counsel for the parties.

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The claimant has suffered 3 injuries.

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(1) tenderness over sacred region, (2) abrasion over the chin and (3) pain in the back.

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The 3^rd injury is grievous in nature and other two injuries

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are simple in nature. Therefore, the Tribunal has rightly granted compensation of Rs.25,000/- under the category of pain and suffering. The claimant was inpatient for a period of one week. Considering the same, the Tribunal has rightly granted compensation of R.2,000/- on the head of attendant and conveyance charges.

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18. Even though the claimant has claimed that at

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the time of the accident he was earning Rs.15,000/- per month, he has not produced any document to establish the same. While assessing the notional income, the Tribunal has considered Rs.5,000/- per month which is on the lower side. This Court in catena of decision, while assessing the notional income, has been considering the chart prepared by the Lok Adalat. As per the chart for the accident of the year 2014, notional income has been

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fixed at Rs.7,500/- per month. Accordingly, notional

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income of the claimant is considered as Rs.7,500/- per month. Even though PW-5 has deposed that there is 45% disability to the whole body, but he is not the treated doctor. The Tribunal considering the wound certificate and other documents produced by the claimant, has rightly assessed the disability to an extent of 10%. Accordingly, loss of future income is reassessed as follows:

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7500x12x11x10/100=99,000/-

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The compensation awarded under other heads is confirmed.

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Accordingly, the judgment and award passed by the Tribunal is modified as follows:

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Rs.

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1	Painand suffering	25,000/-
2	Medical expenses	33,400/-
3	For food, diet, nourishment and attendant charges	2,000/-
4	Loss of income during laid up period	10,000/-

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5	Loss of future income	99,000/-
6	Loss of amenities and enjoyment of life	10,000/-
	Total	1,79,400/-

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The claimant is entitled to reassessed compensation

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of Rs.1,79,400/-as against Rs.1,46,400 awarded by the Tribunal.

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Accordingly, MFA Nos.100320 of 2016, 100321 of 2016 and 100316 of 2016 filed by the Corporation are dismissed.

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MFA Nos.103912 of 2015, 103914 of 2015 and 103913 of 2015 filed by the claimants are allowed in part and they are entitled to reassessed compensation as stated above in the respective appeal. The common judgment and award dated 16^th October 2015 passed by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Ranebennur, in MVC Nos.875, 876 and 877 of 2014 is hereby modified. The corporation is directed to deposit the amount within eight weeks from the date of receipt of a copy of this order.

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Amount in deposit before this Court by the Corporation is ordered to be transferred to the Tribunal concerned. The Tribunal is directed to disburse the same

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to the claimants after due verification.

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SD/JUDGE

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Kmv

Basavaraj S/O Kotrappa Shettar @ Basavaraj v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

Basavaraj S/O Kotrappa Shettar @ Basavaraj v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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