Partly allowed

Shri Anand Shankar Gunjikar v. Shri Prakash Gurupad Sankapal

Karnataka HC7 Jul 2020MFA/101070/2017

Case brief

AI extract

What is this about?

The High Court allowed the claimant's appeal in part, enhancing compensation for injuries sustained in a road traffic accident. The Court reassessed the claimant's monthly income notionally to Rs.8,000 and increased the disability percentage to 22% based on medical evidence, resulting in total enhanced compensation.

What did the court decide?

Total enhanced compensation of Rs.7,17,800/- with interest at 9% per annum granted to the claimant.

Shri Anand Shankar Gunjikar Vs Shri Prakash Gurupad… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF JULY 2020

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PRESENT

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THE HON’BLE MR. JUSTICE S.G. PANDIT

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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M.F.A.NO.101070 OF 2017 (MV)

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BETWEEN

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SHRI ANAND SHANKAR GUNJIKAR AGE:38 YEARS, OCC:MASON & CENTERING WORK (NOW NIL) R/O:VADDAR CHHAVANI KHASBAG DIST:BELAGAVI-590001

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... APPELLANT

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(BY MISS. REBECCA SOLOMAN, ADV., FOR SRI. VITTHAL S TELI, ADV., FOR APPELLANT)

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AND

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SHRI PRAKASH GURUPAD SANKAPAL, AGE:MAJOR, OCC:BUSINESS, R/O:AT POST SANKPAL GALLI, RAIBAG, TAL:RAIBAG DIST:BELAGAVI-591235

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD CLUB ROAD, BELAGAVI, PIN CODE-590001

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... RESPONDENTS

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(BY SRI. S. S. KOLIWAD, ADV., FOR R2; R1 – NOTICE SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 15.12.2016 PASSED IN MVC NO.1296/2015 ON THE FILE OF THE V- ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR HEARING, THIS DAY, S.G. PANDIT, J DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimant/injured is in appeal being dissatisfied with the compensation awarded in judgment and award dated 15.12.2016 in MVC No.1296/2015 on the file of the V- Additional District and Sessions Judge and MACT-VI, Belagavi.

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A claim petition was laid by the claimant under Section 166 of the Motor Vehicles Act claiming compensation for the accidental injuries sustained in a road traffic accident that took place on 16.04.2015 involving motorcycle bearing No.KA-22/ED-4244 and a tanker bearing No.KA-23/A-5804.

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3. There is no dispute with regard to the accident

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and accidental injuries sustained by the claimant involving the above said motorcycle and the tanker in this appeal.

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Before the Tribunal, the claimant got examined

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himself as P.W.1 and also examined two doctors, who treated him, as P.Ws.2 and 3 apart from marking documents at Exs.P.1 to P.15(a) to (q). The respondent/insurance company, with the consent, got marked Ex.R.1/insurance policy.

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The Tribunal analyzing the material placed before it, awarded a total compensation of Rs.5,24,000/with interest at the rate of 9% per annum from the date of petition till realization.

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While awarding the compensation, the Tribunal assessed the monthly income of the claimant/injured at Rs.7,000/- and assessed the physical disability at 10% to the whole body. The claimant being not satisfied with the compensation awarded by the Tribunal is before this Court praying for enhancement of the compensation.

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Heard the learned counsel for the appellant as

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well as the learned counsel for respondent/insurance company and perused the records.

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The learned counsel for the appellant would submit that the income assessed by the Tribunal at Rs.7,000/- per month is on the lower side. He would submit that the claimant was earning Rs.15,000/- per month by doing mason work but the Tribunal without considering the evidence of P.W.1, assessed the income of the claimant at Rs.7,000/- per month, which requires to be enhanced. Further he would submit that the claimant has sustained fracture of right tibia and fibula, fracture of right mandible and fracture of Leforte IV on left leg. He would submit that the claimant has examined two doctors as P.W.2 and P.W.3. P.W.2 is a dental surgeon who issued Ex.P.15 and states that the claimant has suffered disability @ 67% in relation to multiple facial bones and states that the injured has suffered 22% disability to the whole body. The learned counsel further submits that P.W.3, who is orthopedic surgeon has issued Ex.P.14, who has opined that the claimant has

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suffered 35% permanent disability in relation to right lower limb. Thus, the learned counsel submits that the disability assessed by the Tribunal at 10% to the whole body is on the lower side when compared to the injuries sustained by the claimant, the medical evidence and the disability certificates. Thus, he prays for reassessing the physical disability based on the evidence on record.

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Per contra, the learned counsel for the

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respondent/insurance company would submit that the compensation awarded by the tribunal is just and the claimant would not be entitled for any enhancement. He submits that the income assessed by the Tribunal at Rs.7,000/- per month is proper and correct. He submits that in the absence of any material on record, the Tribunal has rightly assessed the income at Rs.7,000/- per month. He further submits that the Tribunal taking note of the evidence of the doctors i.e. P.W.2 and P.W.3 and taking into account Exs.P.14 and 15 disability certificates, has properly assessed

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the disability at 10% to the whole body. He would submit that the disability stated by the dental surgeon would not

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affect the day-to-day activities of the claimant and it cannot be considered as disability. Further, the learned counsel would submit that taking into account 35% disability in relation to the right lower limb, the Tribunal has assessed the disability at 10%, which is proper and correct. Thus, he prays for dismissal of the appeal.

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Having heard the learned counsel for parties and on consideration of rival contentions, the points that would arise for our consideration are as under:

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i) Whether the income assessed by the Tribunal at Rs.7,000/- per month of the claimant/injured is proper and correct?

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ii) Whether the assessment of physical disability at 10% by the Tribunal is proper and correct?

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The answer to the above points would be in negative for the following:

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REASONS

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The accident is of the year 2015. The accident

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and the accidental injuries suffered by the claimant is not in

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dispute. The claimant is before this Court seeking for enhancement of the compensation. It is stated that the claimant was working as a mason and was also doing centering work, earning Rs.15,000/- per month. No documents or material is placed on record to establish the income of the claimant/injured. In the absence of any material to establish the income of the claimant, the Tribunal assessed the income off the claimant at Rs.7,000/per month notionally, which is on the lower side. This Court and the Lok-Adalaths while settling the accident claims of

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the year 2015, normally would assess the income of a person, who has failed to establish the income at Rs.8,000/per month notionally. In the instant case also in the absence of any material to establish the income of the injured/claimant, we deem it appropriate to assess the income of the claimant at Rs.8,000/- per month notionally.

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The next contention of the learned counsel for the appellant/claimant is that the assessment of disability by the tribunal at 10% to the whole body is on the lower side. The injured/claimant sustained injuries as stated

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above. In support of his contention, the claimant examined the doctors as P.W.2 and P.W.3. P.W.2 is the dental surgeon, who opined that the claimant has suffered 67% disability in relation to his facial bones and assessed the disability to the whole body at 22%. P.W.3, Dr. S. D. Patil, who is orthopedic surgeon has opined that the claimant has suffered disability to his right lower limb to the extent of 35%. Taking note of the fact that the claimant has undergone operation and was admitted as an inpatient initially for a period of 18 days and subsequently for a period of 33 days and taking note of the disability certificates and the evidence of P.W.2 and P.W.3, who are the doctors who issued Ex.P.14 and 15, disability certificates and also the treatment taken by the claimant, we are of the view that the assessment of disability by the Tribunal at 10% to the whole body is not proper and we reassess the same at 22% to the whole body i.e. 1/3^rd of the disability assessed by the doctor. Accordingly, the claimant would be entitled to Rs.8000 x 12 x 15 x 22% = 3,16,800/towards loss of future income.

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In view of reassessment of monthly income

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notionally at Rs.8,000/-, the claimant is entitled to the reassessed compensation of Rs.24,000/- towards loss of earnings during laid period. The compensation awarded on other heads are not disturbed.

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Thus, the claimant would be entitled to the compensation of Rs.7,17,800/- as against Rs.5,24,000/awarded by the Tribunal with interest at the rate of 9% per annum from the date of petition till realization on following heads.

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Sl.	Heads	Amount
No.		(in Rs.)
1.	Loss of future earnings	3,16,800/-
2.	Towards pain and sufferings	1,00,000/-
3.	Towards loss of amenities in life	25,000/-
4.	Towards loss of life expectancy	15,000/-
5.	Towards medical expenses	2,20,000/-
6.	Towards future medical expenses	10,000/-
7.	Towards conveyance, nourishment and attendant charges	7,000/-
8.	Towards loss of income during the laid up period (Rs.8000 x 3 = Rs.24,000/-	24,000/-
	Total	7,17,800/-

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16. In the result, we proceed to pass the following:

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ORDER

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i) The appeal filed by the claimant is allowed in part.

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ii) The judgment and award of the Tribunal is modified to the extent that the claimant would be entitled for total compensation of Rs.7,17,800/- with interest at 9% per annum from the date of petition till the date of realization.

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iii) The respondent-insurance company is directed to deposit the enhanced compensation amount with interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.

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iv) The entire enhanced amount shall be released in favour of the claimant.

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Draw the modified award accordingly.

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Sd/JUDGE

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Sd/JUDGE

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yan

Shri Anand Shankar Gunjikar v. Shri Prakash Gurupad Sankapal

Case brief

What is this about?

What did the court decide?

Shri Anand Shankar Gunjikar v. Shri Prakash Gurupad Sankapal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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