Vithal Vs Mr. Irshad and Ors.

THE MANAGER (LEGAL), IFFCO-TOKIO GENERAL INSURANCE CO. LTD., NO.145, 2^ND FLOOR, 5^TH MAIN, SHREE SHANTI TAWAR'S OPP. TO N.G.E.F. LAYOUT, KASTURINAGAR, BANGALORE-560 013.

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KALYAN S/O NAVANATH DOKE, AGE: 51 YEARS, OCC: OWNER OF DUSTER CAR NO.MH-45/N-5133, R/O DOKE VASTI, AT/POST-KANDAR, TQ. KARMALA, DIST. SOLAPUR-513 202.

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NC: 2025:KHC-K:2059 MFA No. 201296 of 2022

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THE BRANCH MANAGER, BAJAJ INSURANCE COMPANY LTD., HASHMI MANZIL ARCED, CLUB ROAD, BELGAUM-590 001.

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…RESPONDENTS

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(BY SRI. SUDARSHAN M. ADV. FOR R2; SRI. SUBHASH MALLAPUR, ADV. FOR R4; V/O DTD. 01.08.2022, NOTICE TO R1 AND R3 ARE DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 05.03.2022 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND MACT VII AT VIJAYAPURA IN MVC NO. 679/2016.

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THIS APPEAL COMING ON FOR ADMISSION, 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 the learned counsel appearing for appellant

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and the respondent No.2 and 4.

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With consent of learned counsel for both the

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parties, this matter is taken for final disposal even though it is slated for admission.

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Being aggrieved by the judgment and award in MVC No.679/2016, dated 05.03.2022 by learned II Addl. Senior Civil Judge at Vijayapur, the petitioner is before this Court in appeal seeking enhancement of the compensation.

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The petitioner on 22.09.2015 while riding the motorcycle bearing No.MH-45/R-9911 was collided with a Truck bearing No.HR- 74/A-8074. Another Duster Car bearing No.MH-45/NN-5133 was also involved in the said accident, which also collided with the motorcycle. The petitioner sustained injuries and along with the pillion rider who had also sustained the injury was admitted to the Raut Hospital, Indapur. Later he was shifted to Ashwini Sahakari Rugnalay Ani Samshodhana Kendra Niyamit, Solapur and was inpatient for about 18 days. It was found that the petitioner had sustained the facial bone fractures and fracture of both the bones of the right leg. The petitioner claimed that he was a medical representative

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earning Rs.25,000/- per month, filed the claim petition before the Tribunal.

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The petition was opposed by the respondents,

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who were owner and insurer of the lorry and the Duster

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Car, contending that the accident was due to the negligence on the part of the petitioner also and that the compensation claimed is highly exorbitant, imaginary and untenable in law. They denied the negligence on their respective sides and disputed the age, income and occupation of the petitioner.

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The Tribunal framed appropriate issues and tried the case of the pillion rider also by way of a common enquiry. The Tribunal after hearing the arguments, came to the conclusion that the negligence was on the part of

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driver of Lorry i.e. respondent No.1. The Tribunal determined the compensation at Rs.2,28,382/- under following heads.

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1.	Pain and sufferings	Rs.30,000/-
2.	Medical expenses	Rs.3,01,654/-
3.	Loss of earning during laid up period	Rs.8,000/-
4.	Loss of future earning on account of permanent disability	Rs.1,07,520/-
5.	Loss of amenities and future unhappiness	Rs.30,000/-
6.	Attendant, diet, conveyance and othercharges	Rs.30,000/-
	Total	Rs.5,07,174/-

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Being aggrieved by the same, the petitioner is

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before this Court in appeal.

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The learned counsel appearing for the petitioner

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would submit that the disability considered by the Tribunal at 7% is on the lower side and the avocation of the petitioner that he was a medical representative should have been considered by the Tribunal. The avocation involves movement of the petitioner from one place to another and therefore the functional disability should have been considered at about 15%.

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Per contra, the learned counsel for respondent

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No.2 would submit that the Tribunal has rightly assessed with a disability at 7%, since PW2 was not the treated

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doctor. Therefore, he submit that there is no need for enhancement of the compensation.

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A perusal of the records would reveal that the

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petitioner claimed that he was a medical representative but did not produce any document to show his income. It is pertinent to note that the petitioner and the pillion rider were traveling on the motorcycle and he was aged about 35 years, which is not in dispute. Therefore, considering the avocation of the petitioner, it can definitely be said that there is a functional disability to him on account of the fracture of the tibia and fibula of the right leg. Of course the facial injuries do not contribute to the functional disability, nevertheless the discomfort would be there. Under these circumstances, the functional disability of the petitioner assessed by the Tribunal at 7% appears to be incorrect and the same has to be considered at 10%.

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The notional income considered by the Tribunal in the absence of any cogent evidence regarding income is proper and the same has to be maintained. Accordingly,

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the loss of future income on account of disability is assessed at Rs.8,000/- x 12 x 16 x 10% = Rs.1,53,600/, by adopting multiplier of ‘16’ for the age of 35 years.

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Consequently, the loss of income during laid up

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period is calculated as Rs.8,000/- x 3 = Rs.24,000/-.

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The compensation awarded by the Tribunal and the remaining heads do not require any enhancement. Accordingly, the appellant-petitioner is entitled for total compensation as below:

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Sl. No.	Heads	Award by the Tribunal	Award by this Court
1	Pain and sufferings	Rs.30,000/-	Rs.30,000/-
2	Medical expenses	Rs.3,01,654/-	Rs.3,01,654/-
3	Loss of earning duringlaid up period	Rs.8,000/-	Rs.24,000/-
4	Loss of future earning on account of permanent disability	Rs.1,07,520/-	Rs.1,53,600/-
5	Loss of amenities and future unhappiness	Rs.30,000/-	Rs.30,000/-
6	Attendant, diet, conveyance and other charges	Rs.30,000/-	Rs.30,000/-
	Total	Rs.5,07,174/-	Rs.5,69,254/-
	Less: Award	by the Tribunal	Rs.5,07,174/-
	Tot	alenhancement	Rs.62,080/-