Jakavva W/O Sahebgouda Kondaguli Vs Ashok S/O Babugouda Patil and Ors.

THE TATA AIG GENERAL INSURANCE COMPANY LTD., REGD. OFFICE PENINSULA BUSINESS PARK, TOWER A, 15^TH FLOOR GANPATRAO KADAM MARG, OFF SENAPATI BAPAR MARG, LOWER PAREL, MUMBAI-400 013 (MAHARASHTRA STATE).

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…RESPONDENTS

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(BY SRI SANJAY M. JOSHI, ADV., FOR R3 [ABSENT]; R1 & R2 - NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 23.01.2019 PASSED IN MVC NO.1081/2014 ON THE FILE OF THE COURT OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XII, VIJAYAPURA, AT VIJAYAPURA AND ALLOW THIS APPEAL TO GRANT THE COMPENSATION AMOUNT BY RS.14,24,500/- ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS COURT

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C.M. JOSHI)

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Heard learned counsel appearing for the

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appellant. None appears for the respondents.

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NC: 2025:KHC-K:1423 MFA No. 200368 of 2020

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Being aggrieved by the judgment and award dated 23.01.2019 passed in MVC No.1081/2014 by the III Additional Senior Civil Judge and MACT-XII, Vijayapura, the petitioner is before this Court seeking enhancement of the compensation amount.

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The factual matrix of the case is as below:

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a) On 11.07.2013 when the petitioner was traveling in the Tempo-Trax bearing No.KA-35/5802 owned by respondent Nos.1 and 2 and insured with respondent No.3, the said vehicle turned turtle by the side of the road, resulting in the petitioner suffering fracture of right clavicle and few other minor injuries. She was shifted to Dr. S.M. Managuli Hospital at Sindagi and thereafter to the hospital of PW2 at Miraj. It is contended that the accident being on account of the negligence of the driver of the Trax, the owner and insurer are liable to pay the compensation to the petitioner.

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NC: 2025:KHC-K:1423 MFA No. 200368 of 2020

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b) Being served with the notice, respondent Nos.1 and 2 did not appear before the Tribunal and as such, they were placed ex-parte. Respondent No.3 appeared and resisted the petition and denied negligence on the part of the driver of the vehicle and it also denied the age, income and occupation of the petitioner. It was contended that there was violation of the terms and conditions of the policy and the compensation claimed is highly exorbitant.

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c) Based on the contentions of the parties, the Tribunal framed appropriate issues and the petitioner was examined as PW1, and the Doctor who assessed disability of the petitioner was examined as PW2. Exs.P1 to P14 were marked in evidence in support of the petition. No oral or documentary evidence is led on behalf of the respondents.

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d) After hearing the parties, the Tribunal awarded compensation of Rs.25,000/- under different heads as below:

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1	Injury, pain and sufferings	Rs.3,000/-
2	Medical expenses	Rs.4,754/-
3	Loss of income due to permanent physical disability	Rs.11,700/-
4	Food and nourishment	Rs.1,000/-
5	Attendant’s charges	Rs.1,000/-
6	Conveyance charges	Rs.1,000/-
7	Loss of amenities and future unhappiness	Rs.3,000/-
	Total	Rs.25,454/-
	Rounded to	Rs.25,500/-

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Aggrieved by the quantum of compensation awarded by the Tribunal the petitioner is in this appeal.

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Learned counsel appearing for the appellantpetitioner submits that the PW2 has stated that there is disability of 35% to the right upper limb and the Tribunal has considered the disability at 5%, which is incorrect. He also contends that the petitioner is a lady aged about 50 years and doing agricultural work, therefore, the functional disability of the petitioner should have been held on the higher side. He also contends that that the compensation awarded under remaining heads is also incorrect. Inter alia it is submitted that the notional income considered by the

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Tribunal is also on the lower side. It is submitted that there is need of re-assessment and enhancement of the compensation.

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A perusal of the records would show that the petitioner had suffered fracture of the right clavicle as mentioned in the Wound Certificate – Ex.P5. The Discharge Summery produced at Ex.P12 would show that the petitioner was treated as inpatient for fracture in Orthopedic Hospital, Miraj from 12.07.2013 to 15.07.2013. The Discharge Summery also shows that the fracture of the right clavicle was treated conservatively and no surgeries were done. It is also pertinent to note that the testimony of PW2 runs contrary to Ex.P12 – Discharge Summery, since he states that there was surgery also. In the absence of any surgery and when the treatment was conservative, it is difficult to accept the argument of the learned counsel appearing for the appellant that disability assessed by PW2 at 35% has not been properly considered by the Tribunal. The Tribunal in its wisdom has assessed the same at 5%. The petitioner being aged 50 years and being an agricultural labourer had

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fracture of the right clavicle and it was treated conservatively and as such, contention of the permanent disability of more than 15% as argued cannot be accepted. In the considered opinion of this Court, the disability of 5% assessed by the Tribunal is just and proper.

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Insofar as income of the petitioner is concerned, the Tribunal has assessed the same at Rs.1,500/- per month. The accident having occurred in the year 2013, the monthly income of Rs.1,500/- assessed by the Tribunal is absurd and unsustainable in law. It appears that the Tribunal has not at all considered the Minimum Wages Act, the wages under the NAREGA or any such contemporary material which was available at large. The assessment of the monthly income at Rs.1,500/- per month is nothing but a pittance which cannot sustain in the eyes of law. The Tribunal should have more vigilant and should have used its wisdom in accepting the notional income.

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The guidelines issued by the Karnataka State

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Legal Services Authority (KSLSA) for settlement of the

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disputes before the Lok Adalat prescribe the notional income of Rs.7,000/- for the year 2013. In umpteen number of decisions, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the appellant-petitioner is accepted as Rs.7,000/- per month. Accordingly, the loss of future income on account of permanent disability is assessed at Rs.7,000/- x 12 x 5% x 13 = Rs.54,600/-, by adopting multiplier of ‘13’ for the age of 50 years.

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Consequently, the loss of income during laid up

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period is calculated as Rs.7,000/- x 2 = Rs.14,000/-.

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The Tribunal has awarded a sum of Rs.3,000/towards pain and suffering and considering the nature of injuries and treatment, a sum of Rs.15,000/- is awarded to her under this head.

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The appellant being aged 50 years, would suffer for rest of the life and therefore, it would be just and proper

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to award Rs.20,000/- under the head loss of amenities in

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life.

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The compensation awarded under remaining heads does not require any indulgence by this Court. Accordingly, the appellant-petitioner is entitled for total compensation of Rs.1,11,354/as below as against Rs.25,500/- awarded by the Tribunal:

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Sl. No.	Heads	Award by the Tribunal	Award by this Court
1	Injury, pain and sufferings	Rs.3,000/-	Rs.15,000/-
2	Medicalexpenses	Rs.4,754/-	Rs.4,754/-
3	Loss of income due to permanent physical disability	Rs.11,700/-	Rs.54,600/-
4	Food andnourishment	Rs.1,000/-	Rs.1,000/-
5	Attendant’s charges	Rs.1,000/-	Rs.1,000/-
6	Conveyance charges	Rs.1,000/-	Rs.1,000/-
7	Loss of amenities and future unhappiness	Rs.3,000/-	Rs.20,000/-
8	Loss of income during laid up period	--	Rs.14,000/-
	Total Rounded to	Rs.25,454/- Rs.25,500/-	Rs.1,11,354/-
	Less: Award b	y the Tribunal	Rs.25,500/-
	Total	enhancement	Rs.99,854/-