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2024 Supreme(Kar) 114
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
H.T.Narendra Prasad, K V Aravind, JJ.
Smt. Jayashree, W/o Late Sri Mallinath - Appellant
Vs.
Sri. Mahaningappa, S/o Basavaraja Dasoha - Respondent
MFA No. 202275 of 2023
Decided On : 01-03-2024
Advocate Appeared:
For the Appellant : Smt. Chandrakala, Adv.
For the Respondent: Smt. Preeti Patil Melkundi, Adv.
IMPORTANT POINT
The importance of accurately assessing whole body disability and considering the average income of the claimant for determining compensation.
Headnote:
MV Act - Compensation for accidental injuries - Section 166 - 12
Fact of the Case:
The claimant filed a petition under Section 166 of MV Act, claiming compensation for injuries sustained in a road traffic accident. The Tribunal confirmed the liability of the insurer and awarded compensation. The claimant appealed for a higher compensation.
Finding of the Court:
The court found that the whole body disability should be assessed at 12% instead of 5% as determined by the Tribunal. The court also re-assessed the claimant's income and various compensation amounts, resulting in an enhanced total compensation of Rs.12,92,268.
Issues: 1. Assessment of whole body disability 2. Reconsideration of compensation awarded by the Tribunal
Ratio Decidendi: The court held that in the absence of assessment of whole body disability, 1/3rd of disability assessed to a particular part of the body should be considered as whole body disability. The court also emphasized the importance of considering the average income of the claimant for assessing compensation.
Final Decision: The appeal was allowed in part, and the claimant was awarded a total compensation of Rs.12,92,268, to be deposited by the Insurance Company with interest.
JUDGMENT :
Though this appeal is listed for admission, with the consent of both parties, heard for final disposal.
2. This appeal is filed by the claimant against the judgment and award in MVC No.1138/2019 dated 17.11.2022.
3. The petitioner/claimant has filed a petition under Section 166 of MV Act, claiming compensation for accidental injuries sustained in a road traffic accident that took place on 09.04.2019. It is stated that the claimant while proceeding by walk towards Vijayapura road from their land, a motorcycle bearing No.KA-32/X-7036 driving in a rash and negligent manner dashed to the petitioner, resulting in grievous injuries. It is stated that the petitioner is an advocate by profession aged 43 years and was earning 1,50,000/- per month.
4. On issuance of notice respondents No.1 to 3 failed to appear before the Tribunal and were placed ex-parte. Respondent No.4 filed statement of objections denying the averments of the petition, age, avocation and income of the petitioner. He further disputed the accident and contended the delay in filing the complaint and also disputed the fact that rider of the motorcycle possessing valid and effective driving license.
5. The Tribunal on the basis of the material evidence on record held that the accident occurred due to rash and negligent driving of motorcycle bearing No.KA-32/X-7036 and confirmed the liability of the insurer. The Tribunal awarded a sum of Rs.6,96,704/- along with interest @ 6% under various heads as under:
| Sl. No. | Different heads | Compensation Amount |
| 1. | Pain and sufferings | Rs.40,000/- |
| 2. | Medical expenses | Rs.2,09,523/- |
| 3. | Loss of earning during laid up period | Rs.40,126/- |
| 4. | Loss of future earning, Disability | Rs.3,37,055/- |
| 5. | Nutritious food and attendant charges | Rs.20,000/- |
| 6. | Loss of future amenities and loss of happiness | Rs.20,000/- |
| 7. | Future medical expenses | Rs.30,000/- |
|
| Total | Rs.6,96,704/- |
6. The Tribunal while awarding the compensation, considered the disability at 5%, age of the claimant as 44 years, income at Rs.40,126/- per month and applied multiplier of 14.
7. Heard Smt.Chandrakala, learned counsel for the claimant and Smt.Preeti Patil Melkundi, learned counsel for the insurer.
8. Learned counsel for the claimant submits that the claimant has suffered disabilities as under:
Pain, right quadriceps weakness and restricted ROM of right knee is 35%.
Right lower limb PPI is 35%
Whole body PPI is 35%
Further contends that the disability assessed at 35% to the right lower limb is to be considered as whole body functional disability, considering the profession carried on by the claimant. It is further submitted that the disability suffered would deprive the claimant to continue her profession. Income tax returns are at Ex.P-31 to 33 for the Assessment Years 2016-17, 2017-18 and 2018-19. She submits that the income of the claimant has to be assessed on the basis of Ex.P-33, income tax returns for the Assessment Year 2018-2019. It is further submitted that the compensation awarded under various heads by the Tribunal is on the lower side. Thus, prays to reassess the compensation.
9. Per contra, learned counsel for the insurer submits that as per Ex.P-29 disability certificate, the disability to the right lower limb is 35%. In the absence of the assessment of whole body disability by the doctor, the Tribunal is justified in assessing the disability of the whole body at 5%. It is further submitted that the date of the accident is 09.04.2019, but no income tax returns has been filed for the Assessment Year 2019-20. The income disclosed as per Ex.P-31 to 33 are income tax returns for the years 2016-17, 2017-18 and 2018-19. They cannot be considered in the absence of income tax returns for the Assessment Year 2019-20. She further submits that the compensation awarded by the Tribunal is just and reasonable. Thus, prays to dismiss t
