Md. Rafi @ Raffiuddin Vs Rajshekar and Anr.

THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 19.03.2022 PASSED BY THE COURT OF THE PRL. SENIOR CIVIL JUDGE, CJM AND ADDL. MACT AT BIDAR IN MVC NO.156/2019 AND ENHANCE THE COMPENSATION AS PRAYED FOR.

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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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Though, this appeal is slated for admission, the same is taken up for disposal with consent of learned counsel for both the parties.

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Heard the learned counsel for the appellant and the respondent No.2.

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Being aggrieved by the judgment and award by the Prl. Senior Civil Judge & CJM & Addl. MACT, Bidar in MVC No.156/2019 dated 19.03.2022 is before this Court seeking enhancement of the compensation.

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The petitioner contends that on 19.07.2018, while he was proceeding from Bangur to Manhalli on motorcycle No.TS-12/ED-3790, a TATA vista car bearing No.KA-38/M-2737 came in rash and negligent manner from the opposite side and collided with the motorcycle of the petitioner. The petitioner fell down and sustained

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fracture of the left shaft of the humerus, fracture of right proximal humerus on the right side and comminuted fracture of the medial condyle of left tibia. He contended that the accident being due to the negligence on the part of the driver of respondent No.1, he being aged about 25 years, earning Rs.20,000/- per month by way of cattle business, he is entitled for a just and reasonable compensation. The respondent Nos.1 and 2 are the owner and insurer of the car.

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On issuance of notice, the respondent No.1 and 2 appeared before the Tribunal and filed their written statements. Both these respondents have contended that the negligence was on the part of the petitioner and there was no negligence on the part of the driver of the car. Both also contended that the compensation claimed is highly exorbitant, imaginary and untenable and they denied the age, income and occupation of the petitioner. The respondent No.2 further contended that there were violations of the terms and conditions of the policy and

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therefore, the liability on respondent No.2 may be absolved.

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The Tribunal framed appropriate issues and the petitioner was examined as PW1 and the doctor who assessed the disability was examined as PW2. Ex.P1 to 12 were marked. No evidence was laid on behalf of the respondents. After hearing both the sides, the Tribunal has awarded the compensation of Rs.7,67,900/- under the

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following heads.

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Heads	Compensation
Loss of future income on account of permanent disability	Rs.3,30,480/-
Pain and sufferings	Rs.40,000/-
Medical expenses incurred	Rs.3,40,420/-
Loss of income during laid up period	Rs.27,000/-
Attendant, Conveyance, Nourishing food, and other incidental expenses	Rs.10,000/-
Loss of Basic Amenities	Rs.20,000/-
Total	Rs.7,67,900/-

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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 petitioner had suffered fracture of

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left humerus and right proximal humerus and also the fracture of the medial condyle of the tibia of the left leg.

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Therefore, the disability to the petitioner as stated by PW2 to the extent of 35% of the whole body should be taken as the functional disability. He submits that the compensation awarded by the Tribunal and the remaining heads is also on the lower side and therefore, there is a need for reassessment of the same.

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Per contra, learned council appearing for the respondent No.2 would submit that the petitioner aged about 25 years claims to be a businessman but he has not produced any material to show his income. It is submitted that the physical disability of each limb of the petitioner is not available from the PW2 and even the disability certificate do not bifurcate and show such disability. He submit that the assessment of the disability by the Tribunal is proper and correct and no intervention is needed by this Court.

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A careful perusal of the records would reveal that the petitioner claims to be a businessman involved in the cattle business. However, in support of such contention, he has not produced any evidence. Obviously,

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the cattle business would not involve any manual labor and therefore, the functional disability of the petitioner need to be assessed with reference to his avocation. PW2 in his testimony as well as the disability certificate at Ex.P11 do not mention the disability of the left and right upper limbs and the left lower limb. Therefore, the testimony of the PW2 that there is a disability of 35% of the whole body alone would be of some help. It is pertinent to note that there were three fractures to the three limbs of the petitioner. The PW2 together has given the disability of 60% of the affected limbs. Hence, it is not possible for this Court to assess the disability of the each limb which would contribute to the functional disability of the petitioner as a businessman.

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In the light of the above, considering the fact that the petitioner had suffered fracture of right humerus, fracture of left tibia and fracture of left humerus, it can safely be said that there is a disability to the petitioner and such functional disability is assessed by this Court at 20%. It is relevant to note that the above injuries were treated

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with ORIF, plating, screwing. It is also relevant to note that the petitioner had stated his age to be 31 years as per the discharge summary at Ex.P10 and 28 years as per the discharge summary at Ex.P9 and 30 years as per the disability certificate. Therefore, as on the date of accident, the age of the petitioner is taken 28 years as mentioned in

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the first discharge summary of UDAI OMNI Hospital, Hyderabad. Hence, appropriate multiplier would be 17.

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In the absence of any proof of income, though the petitioner states that he was a businessman, the notional income applicable for any manual labour has to be considered.

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The guidelines issued by the Karnataka State Legal Services Authority (KSLSA) for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.11,750/- for the year 20018. 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

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minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner is accepted as Rs.11,750/- per month. Hence, the loss of future income is calculated as Rs.11,750/- x 12 x 18 x 20% = Rs.5,07,600/-.

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Consequently, the petitioner is entitled for compensation of Rs.47,000/- towards the loss of income during 04 months of laid up period.

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Having noticed fracture of right humerus, fracture of left tibia and fracture of left humerus, the compensation under the head of pain and sufferings is a enhanced Rs.50,000/-.

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Similarly, the compensation under the head of loss of amenities is also enhanced to Rs.45,000/-.

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The Tribunal has awarded a compensation of Rs.10,000/under the heads attendant, conveyance, nourishing food and other incidental expense. It is pertinent to note that the petitioner was inpatient for a period of 15

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days, therefore, the compensation under this head is enhanced to Rs.20,000/-.

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The compensation awarded by the Tribunal

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under the remaining heads does not require any enhancement. Accordingly, the appellant-petitioner is entitled for compensation of Rs.10,10,020/- as against Rs.7,67,900/- awarded by the Tribunal, as below:

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Sl. No.	Heads	Award by the Tribunal	Award by this Court
1	Loss of future income on account of permanent disability	Rs.3,30,480/-	Rs.5,07,600/-
2	Pain and sufferings	Rs.40,000/-	Rs.50,000/-
3	Medical expenses incurred	Rs.3,40,420/-	3,40,420/-
4	Loss of income during laid up period	Rs.27,000/-	Rs.47,000/-
5	Attendant, Conveyance, Nourishing food, and other incidental expenses	Rs.10,000/-	Rs.20,000/-
6	Loss of Basic Amenities	Rs.20,000/-	Rs.45,000/-
	Total		Rs.10,10,020/-
	Less: Award	by the Tribunal	Rs.7,67,900/-
	Tota	l enhancement	Rs.2,42,120/-

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Hence, appeal deserves to be allowed in part.

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Therefore, the following;

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ORDER

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(i) The appeal is allowed in part.

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(ii) The appellant/petitioner is entitled for a sum of Rs.2,42,120/- in addition to the compensation awarded by the Tribunal, along with interest at 6% p.a. out of which shall not carry any interest from the date of petition till its deposit.

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(iii) Respondent No.2-Insurance company is directed to deposit the compensation amount within a period of six weeks from the date of this order.

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(iv) Rest of the order of the Tribunal stands unaltered.

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SMP

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List No.: 1 Sl No.: 48 CT: AK

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Sd/(C M JOSHI)

Md. Rafi @ Raffiuddin v. Rajshekar and Anr.

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Md. Rafi @ Raffiuddin v. Rajshekar and Anr.

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