Ranjanabai W/O Baburao, Vs Roshan Shant Dasani S/O Kamalesh Shant Dasani and Anr.

ROSHAN SHANT DASANI S/O KAMALESH SHANT DASANI, AGE: MAJOR, OCC: OWNER OF THE VEHICLE TS-29/B-5699, R/O H. NO. 1-2-524/1/1A, DOMALAGUDA, OPP: LIBERTY OFICE, HIMAYAT NAGAR, HYDERABAD-500 012 (T.S.).

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THE BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., HYDERABAD, BANCASSURANCE DO (612900), 1-3-183/40/21/60, 1^ST FLOOR, NEAR GANDHI NAGAR, POST OFFICE, P AND T COLONY BUS STOP, NEW BAKARAM, HYDERABAD-560 012 (T.S.), REPRESENTED BY ITS BRANCH MANAGER, NEW INDIA ASSURANCE COMPANY LTD., OPP: JAIL, UDGIR ROAD, BIDAR-586 401.

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2 - NC: 2025:KHC-K:2106 MFA No. 202329 of 2022

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…RESPONDENTS

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(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; V/O DTD. 05.12.2022, NOTICE TO R1 IS 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 23.03.2022 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND MACT AT BIDAR, IN MVC NO.94/2021.

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

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Being aggrieved by the judgment and award in MVC No.94/2021 by learned Addl. Senior Civil Judge & MACT, Bidar the petitioner is before this Court in appeal seeking enhancement of the compensation.

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The factual matrix of the case is that on

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10.10.2020, when the petitioner was traveling from her hotel to her house on motorcycle bearing No.KA-38/S6433 ridden by her son, another motorcycle bearing No.TS-29/B-5699 came from opposite direction and dashed to the motorcycle of the petitioner resulting in her fall and she sustaining fracture of both the bones of the left leg. She was immediately taken to Guru Nanak Hospital at Bidar and she was inpatient from 10.10.2020 to 15.10.2020 and had undergone surgeries. It was contended that the petitioner is aged about of 49 years and she was a Cook in her own hotel and as such the disability on account of the injuries sustained is affecting her economic condition.

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On service of notice, the respondent Nos.1 and 2 - owner and insurer of the offending motorcycle appeared before the Tribunal and resisted the petition. The respondent No.1 denied any negligence on the part of the rider and contended that there was negligence on the part

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4 - NC: 2025:KHC-K:2106 MFA No. 202329 of 2022

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of the rider of the motorcycle over which the petitioner was the pillion rider. It is contended that a false case has been hoisted against the offending vehicle and he denied the age, income and occupation of the petitioner and termed the compensation claimed as highly exorbitant and imaginary.

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The respondent No.2 - insurance company

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contended that the terms and conditions of the policy were violated by the respondent No.1 and the other contentions of the respondent No.1 were reiterated by it.

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On the basis of the above contentions, the Tribunal framed appropriate issues and the petitioner was examined as PW1. The doctor who assessed disability was examined as PW2 and Ex.P1 to 14 were marked in evidence. No evidence was led on behalf of the respondents. After hearing both the sides, the Tribunal has awarded compensation of Rs.3,88,591/under different heads as below:

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Sl.No.	Heads	Compensation
1.	Pain and suffering	Rs.50,000/-
2.	Medical, Attendant and incidental charges	Rs.18,000/-
3.	Loss of basic amenities	Rs.15,000/-
4.	Medical Bills	Rs.94,391/-
5.	Laid up period charges	Rs.24,000/-
6.	Loss of earnings	Rs.1,87,200/-
	Total	Rs.3,88,591/-

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Being aggrieved by the same, the petitioner is

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before this Court.

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The learned counsel appearing for the petitioner would submit that the petitioner is aged about 49 years and she was a Cook in her own hotel which involves standing for long time for Cooking. Due to injuries sustained, the petitioner is unable to do her job and it has affected her earning ability. It is contended that even though the PW2 had stated that there is disability of 35% of the limb, the Tribunal has assessed the functional disability at 10% which is on the lower side. Further the Tribunal also erred in holding the notional income of the petitioner at Rs.12,000/-, since she is a self employed lady

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working in her own hotel and obviously she is unable to produce any material to show her wages. It is submitted that the hotel was run by the family members as a Khanavali. Therefore, he seeks re-assessment of the compensation.

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Per contra, learned counsel for the respondent No.2 would submit that the petitioner having not produced any material about her income, is unable to establish that there is depletion of the income. She submits that the compensation awarded by the Tribunal is just and proper and no indulgence is required.

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The perusal of the available evidence on record would show that the petitioner was aged about 49 years and the Tribunal held that she is aged 50 years as on date of the accident on the basis of the medical records. The Tribunal, in the absence of any evidence about the income of the petitioner, held the notional income at Rs.12,000/-. The guidelines issued by the Karnataka State Legal Services Authority (KSLSA) for settlement of the disputes

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before the Lok Adalat prescribe the notional income of Rs.13,750 for the year 2020. 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 petitioner is accepted as Rs.13,750/- per month.

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The perusal of the testimony of the PW2 Dr.Mallikarjuna show that he assessed disability and there was restriction of range of motion of the left knee by 20% and muscle strength having reduced to 4/5. Therefore, he attributes 11% combined disability for the mobility component. Regarding stability component, he accesses the same at 27% and therefore, he opines that the combined disability of the limb would be 33%. The petitioner claimed that she is working in a Khanavali. This aspect is not denied by the respondents in her cross examination. Moreover, the fact that she was working in a

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Khanavali can also be found from the FIR and the complaint wherein it was categorically stated that she was returning from the Khanavali. Therefore, the fact that she was working in Khanavali cannot be disputed. A lady working at the age of about 50 years in her own Khanavali, which is run along with her family members, has suffered the fracture of the both the bones of the left leg which has resulted in the physical disability of 33%. Therefore, the functional disability of the petitioner needs to be assessed by this Court. The working in a Khanavali definitely involves sitting cross legged and standing for

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long time, which definitely gets affected by the injuries suffered by her. Moreover, the Ex.P10 which is the X-ray report shows that the implants are in situ. The disability certificate at Ex.P9 is also accompanied by a photograph.

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On a careful assessment of these aspects, this Court is of the view that the functional disability of the petitioner has to be taken at 14%.

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For above reasons, the loss of future income is calculated as Rs.13,750/- x 12 x 13 x 14% = Rs.3,00,300/-.

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Consequently, the compensation under the head of loss of income during laid up period for 3 months is calculated at Rs.13,750/- x 3 = 41,250/-.

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The compensation under the head of loss of amenities in life awarded by the Tribunal at Rs.15,000/needs to be enhanced to Rs.40,000/-.

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The compensation awarded by the Tribunal under the head of pain and suffering and attendant charges do not require any enhancement.

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Accordingly, the appellant-petitioner is entitled for the total compensation of Rs.5,43,941/- as against Rs.3,88,591/- awarded by the Tribunal, as below

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Sl.	Heads	Award by the	Award by this
No.		Tribunal	Court
1	Pain and suffering	Rs.50,000/-	Rs.50,000/-
2	Medical, Attendant and incidental charges	Rs.18,000/-	Rs.18,000/-
3	Loss of basic amenities	Rs.15,000/-	Rs.40,000/-
4	Medical Bills	Rs.94,391/-	Rs.94,391/-
5	Laid up period charges	Rs.24,000/-	Rs.41,250/-
6	Loss of earnings	Rs.1,87,200/-	Rs.3,00,300/-
	Total	Rs.3,88,591/-	Rs.5,43,941/-
	Less: Award	by the Tribunal	Rs.3,88591/-
	Tot	al enhancement	Rs.1,55,350/-

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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.1,55,530/- in addition to the compensation awarded by the Tribunal, along with interest at 6% p.a.

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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 remain

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unaltered.

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Sd/(C M JOSHI) JUDGE

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SMP List No.: 1 Sl No.: 62 CT: AK

Ranjanabai W/O Baburao, v. Roshan Shant Dasani S/O Kamalesh Shant Dasani and Anr.

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Ranjanabai W/O Baburao, v. Roshan Shant Dasani S/O Kamalesh Shant Dasani and Anr.

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