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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K. SOMASHEKAR, J.
Bharma Allap Madar - Appellant
Versus
Malhari R. Kurade & Another - Respondents
MFA No. 22490 of 2009 (MV)
Decided On : 06-04-2017
MOTOR VEHICLE ACCIDENT - COMPENSATION - ENHANCEMENT - APPELLANT/CLAIMANT SUSTAINED CRUSH INJURIES ON HIS RIGHT HAND AND AMPUTATION OF HIS LITTLE FINGER - TRIBUNAL AWARDED COMPENSATION OF RS. 3,15,000/- - APPELLANT CHALLENGED THE AWARD - HELD, THE APPELLANT IS ENTITLED TO ENHANCED COMPENSATION OF RS. 5,72,000/- INSTEAD OF RS. 3,94,000/- AWARDED BY THE TRIBUNAL WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION OF THE ENTIRE AMOUNT.
Fact of the Case:
THE APPELLANT WAS WORKING AS A DRIVER IN A LORRY. ON 11.06.2007, THE LORRY WAS LOADED WITH SAND AND IT WAS GOING FROM GOKAK TOWARDS BELGAUM. ANOTHER LORRY BELONGING TO THE RESPONDENT NO.1 BEARING NO. KA-22/A-5489 DRIVEN BY ONE MANSUR DASTAGIRSAB, WHICH WAS ALSO LOADED WITH SAND GOING FROM GOKAK TOWARDS BELGAUM. BOTH THE AFORESAID LORRIES REACHED NEAR SUTAGATTI GHAT. IN THE SAID GHAT THE LORRY DRIVEN BY THE APPELLANT WAS NOT CLIMBING SINCE IT WAS STEEP GHAT. AT THAT TIME, MANSUR DASTAGIRSAB TOLD THE APPELLANT THAT HE WOULD DRIVE THE SAID LORRY AND THE APPELLANT SHALL KEEP STONES BEHIND THE REAR WHEEL FREQUENTLY SO AS TO AVOID VEHICLE COMING TO THE REAR SIDE. ACCORDINGLY, THE MANSUR WAS STARTED DRIVING THE LORRY AND THE APPELLANT WAS HELPING BY PUTTING STONES BEHIND THE WHEEL, AS SOON as THE LORRY MOVES LITTLE AHEAD SO AS TO REACH THE TOP OF THE GHAT, MEANWHILE THE MANSUR LOST CONTROL OVER THE LORRY AND ABRUPTLY APPLIED NEUTRAL GEAR WITHOUT APPLYING THE BREAK BECAUSE OF WHICH THE SAID LORRY SUDDENLY CAME BACK AND RAN OVER THE RIGHT HAND OF THE APPELLANT WHO WAS HELPING TO MOVE THE SAID LORRY AHEAD BY KEEPING STONES BELOW THE REAR WHEEL. IN VIEW OF THE SAID IMPACT, THE APPELLANT SUSTAINED CRUSH INJURIES ON HIS RIGHT HAND.
Finding of the Court:
THE TRIBUNAL ERRED IN ASSESSING THE DISABILITY OF THE APPELLANT AT 30% INSTEAD OF 50% AS PER THE EVIDENCE OF THE DOCTOR WHO ISSUED THE DISABILITY CERTIFICATE. THE TRIBUNAL ALSO ERRED IN APPLYING A MULTIPLIER OF 14 INSTEAD OF 15 FOR DETERMINING THE LOSS OF EARNING CAPACITY.
Issues: 1. WHETHER THE TRIBUNAL ERRED IN ASSESSING THE DISABILITY OF THE APPELLANT AT 30% INSTEAD OF 50% AS PER THE EVIDENCE OF THE DOCTOR WHO ISSUED THE DISABILITY CERTIFICATE? 2. WHETHER THE TRIBUNAL ERRED IN APPLYING A MULTIPLIER OF 14 INSTEAD OF 15 FOR DETERMINING THE LOSS OF EARNING CAPACITY?
Ratio Decidendi: THE PERCENTAGE OF DISABILITY SHOULD BE ASSESSED AT 50% INSTEAD OF 30%, KEEPING IN VIEW OF THE EVIDENCE OF THE DOCTOR WHO ISSUED THE DISABILITY CERTIFICATE. THE MULTIPLIER SHOULD BE TAKEN AS 15 INSTEAD OF 14 IN VIEW OF THE JUDGMENT IN THE CASE OF SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER REPORTED IN 2009 ACJ 1298.
Final Decision: APPEAL ALLOWED IN PART. THE APPELLANT/CLAIMANT IS ENTITLED TO THE ENHANCED COMPENSATION OF RS. 5,72,000/- INSTEAD OF RS. 3,94,000/- AWARDED BY THE TRIBUNAL WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION OF THE ENTIRE AMOUNT.
1. This appeal has been preferred by the claimant against the impugned judgment and award passed by the IInd Addl. Civil Judge (Sr.Dn.) and Addl. MACT, Belgaum in MVC No. 3282/2007, dated 27th February 2009 by awarding compensation in a sum of Rs. 3,15,000/- with interest at the rate of 6% p.a., from the date of petition till realisation of entire amount, as this judgment has been challenged by the petitioner among other grounds urged therein.
2. Heard the learned counsel for the appellant and the learned counsel for the respondent No.2 - Insurance company and perused the records.
3. The rank of the parties shall be maintained as it is before the Tribunal for convenience.
4. The petitioner was working as driver in Lorry bearing No. KA-22/C-8072 belonging to the respondent No.1. On 11.06.2007, the said lorry was loaded with sand and it was going from Gokak towards Belgaum. Another lorry belonging to the respondent No.1 bearing No. KA-22/A-5489 driven by one Mansur Dastagirsab, which was also loaded with sand going from Gokak towards Belgaum. Both the aforesaid lorries reached near Sutagatti Ghat. In the said ghat the lorry driven by the petitioner was not climbing since it was steep ghat. At that time, Mansur Dastagirsab told the petitioner that he would drive the said lorry and the petitioner shall keep stones behind the rear wheel frequently so as to avoid vehicle coming to the rear side. Accordingly, the Mansur was started driving the lorry and the petitioner was helping by putting stones behind the wheel, as soon as the lorry moves little ahead so as to reach the top of the ghat, meanwhile the Mansur lost control over the lorry and abruptly applied neutral gear without applying the break because of which the said lorry suddenly came back and ran over the right hand of the petitioner who was helping to move the said lorry ahead by keeping stones below the rear wheel. In view of the said impact, the petitioner sustained crush injuries on his right hand. It is further stated that subsequently, the injured petitioner was shifted to the KLE Hospital, Belgaum for treatment. He was admitted as an inpatient from 11.06.2007 to 23.06.2007. He underwent major operation. His little finger of the right hand is amputated. As such he has spent Rs. 1,00,000/- towards treatment. Further, it is stated that the injured petitioner was aged about 25 years at the time of accident. He was earning Rs.7,000/- per month as salary and also maintaining his family. His family consists of wife, daughter, old aged parents and disabled son. Due to injury suffered in the accident, the injured petitioner is unable to work and lost his earning capacity. Criminal case was registered against the driver of lorry bearing No. KA-22/C-8072 i.e., Mansur Dastagirsab, who was driving the lorry at the rime of accident. Hence, he sought for compensation by filing the claim petition before the Tribunal.
5. After service of notice, the respondent Nos.1 and 2 have appeared and filed their written statement. Whereas, it is the contention of the respondent No.1 in the written statement that the petitioner was working as a driver in his lorry and he was paying Rs.4,000/- per month as salary and Rs.50/- per day as bhatta. The accident was caused due to the negligence of the petitioner. It is further contended in the written statement that he has failed to take proper care while keeping stones below the wheels. Therefore, the petitioner is not entitled to claim any compensation, the petitioner has left the job after the incident, but falsely set up the following claim petition before the Tribunal that he has lost his entire earning capacity by pleading in his claim petition. Thus, he sought for dismissal of the claim petition, which has been filed by the injured - claimant. The respondent No.2 who has also filed the written statement by stating that the accident in
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