Nagaraj v. Nagendra And Others

1. Being aggrieved by the judgment and award in MVC No.702/2013 dated 20.10.2016 by the learned prl. Senior Civil Judge & Member, MaCT, Kalaburagi, the claimant is before this Court in appeal seeking enhancement of the compensation.

2. The factual matrix of the case is that the petitioner was a rider and his friend Vishwanath was pillion rider on a motorcycle bearing No.KA-33/K-211. On 04.03.2013 at5.00 p.m. near Hotapet cross on JewargiShahapur main road, a Tata Ace bearing Reg.No.KA-32/B1671 which was proceeding in a front, the petitioner showing the signal to the driver of the said vehicle tried to over take. But the driver of the Tata Ace vehicle without giving any signal turned right due to which its right portion dashed to the motorcycle of the petitioner and thereby there was an accident. It was alleged that the accident was due to the negligence on the part of the Tata Ace driver. The petitioner fell down and sustained fracture of the shaft of right femur and fracture of the lateral condyle of tibia and other injuries. He was taken to Kamareddy Hospital, Gulbarga and he was in patient from 04.03.2013 to 14.03.2013 were he underwent surgery. The B’Gudi P.S. registered a case in Crime No.24/2013 against the driver of the Tata Ace vehicle. The petitioner was aged about 25 years at the time of the accident and he was earning a commission of Rs.15,000/- per month by working as LIC Agent and also earning Rs.10,866/- per month with other perks from Teamlease Services Pvt. Ltd. Due to the accidental injuries, the petitioner has suffered permanent disability and had to spend huge amount for the medical expenses etc. It is contended that the respondent No.1 is a owner as per RC and respondent No.2 is the owner as per the insurance policy and respondent No.3 is the insurer of the offending vehicle. Therefore, they are jointly and severally liable to pay the compensation to the petitioner.

3. Pursuant to the notice issued by the Tribunal, the respondent No.2 appeared through his counsel and filed its objection statement denying the claimant‘s contentions and alleged the accident was due to the negligence of the petitioner himself. The other respondents remained absent in spite of the service of notice and therefore placed ex-parte. The respondent No.2 contended that the driver of the offending vehicle had valid and effective driving licence as on the date of accident and therefore the respondent No.3 being the insurer is liable to pay the compensation to the petitioner.

4. On the basis of the pleadings, the Tribunal framed the appropriate issues and the petitioner was examined as PW1 and Ex.P1 to Ex.P19 were marked in evidence. The medical officer who assessed the disability was examined as PW2. After the arguments by both the sides, the Tribunal has awarded the compensation of Rs.2,80,813/- and fastened the liability upon the respondent No.2 and 3.

5. Being aggrieved by the said judgment and award, the petitioner has approached this Court in appeal contending that the compensation awarded by the petitioner is low and the Tribunal failed to assess the disability in a proper manner and also the income of the petitioner was not properly considered by the Tribunal.

6. On issuance of notice the respondent No.3 insurance company appeared through its counsel and the notice to respondent No.1 and 2 were dispensed with. The Trial Court records have been secured and the submission by learned counsel appearing for both the sides were heard.

7. The learned counsel appearing for the petitioner has contended that though the PW2 who assessed the disability of the petitioner had stated that the disability is 45% to the right lower limb and 22.5% to the whole body, the Tribunal has assessed the disability at 8%. It is contended that the petitioner was an LIC Agent and was also working at Teamlease and therefore his job involved extensive movements and as such the disability assessed by the Tribunal at 8% is not proper and correct. He contended that the Tribunal should have assessed the disability at 22.5% as stated by PW2. Further it is also submitted that the Tribunal has taken the sum of Rs.5,426/- per month as the income which is on lower side and the Tribunal should have taken the same at Rs.10,866/- per month.

8. The fact that the petitioner had met with accident due to the actionable negligence of the driver of the Tata Ace is not in dispute. It is evident that the charge sheet was laid against the driver of the Tata Ace vehicle and that the said vehicle was insured by respondent No.3. These aspects having attained finality, the only point that would arise is about the quantum of the compensation.

9. The perusal of the impugned judgment would show that the Tribunal while assessing the income of the petitioner has observed that the salary of the petitioner was Rs.10,866/- per month from Teamlease Services. The Tribunal has accepted the employment of the petitioner. It held that the income from the LIC as a commission is not proved. The Tribunal holds that the petitioner was paid a sum of Rs.10,866/- per month and out of it HRA was to the extent of Rs.2,905/-, conveyance was Rs.800/-, Employees PF contribution was Rs.651/-, Insurance was Rs.46/- and work allowance was Rs.738/- and statutory bonus was Rs.292/- and Employee compensation was Rs.8/- and these allowance have to be deducted. It is relevant to note that the HRA, Conveyance allowance, PF Contribution of Rs.651/-, Insurance premium of Rs.46/- etc., are the allowances which are part of the salary. The judgment of a division bench of this court in the case of Divisinal Controller Vs Smt Bismilah (2023 Kant MAC 551) by relying on the decision of the Apex Court in Vimal Kanwar and others Vs Kishore Dan and others has held that the allowances are part of the salary and only Income Tax and Proffessionsl Tax are deductible. Therefore, the deductions of these allowances are not justifiable. It is not the net income which is to be considered by the Tribunal but it is the gross income less the taxes paid. Under these circumstances, the assessment of the income of the petitioner at Rs.5,426/- is not proper and correct. After deducting the profession tax of Rs.200/-, the effective income of the petitioner is Rs.10,666/- per month.

10. The second point that needs to be considered is regarding the disability. It is evident that the petitioner was in patient for about 10 days and he had suffered the fracture of the lateral condoyle of the tibia and also the fracture of the right femur. Obviously these fractures contribute for the effective movement of the petitioner. It is evident that he was working at Teamlease and was also LIC Agent. He was aged 25 years and therefore the assessment disability by PW2 at 45% of the right lower limb though is on the little higher side, the Tribunal should have considered the functional disability of the petitioner. It is pertinent to note that the PW2 states about the physical disability but the Tribunal had to assess the functional disability of the petitioner. Considering the nature of the avocation of the petitioner, age and also the nature of the injury, coupled with the evidence of the PW2, the disability of 22.5% as stated by PW2 appears to be on the higher side. The functional disability of the petitioner can very well be assessed at 12%. When the disability of 45% to the right lower limb is the physical disability as stated by the PW2, the functional disability has to be taken at 12%.

11. Therefore, the loss of future income is calculated as Rs.10,666/-x 12 x 12% x 17 = Rs.2,61,103/- by adopting a multiplier of 17 for the age of 25 years. The tribunal has awarded a sum of Rs.60,000/- towards pain and suffering which does not require any enhancement. The Tribunal has awarded a sum of Rs.10,000/- towards loss of amenities and enjoyment in life and it being on the lower side, the same is enhanced to Rs.20,000/-.

12. The compensation awarded by the Tribunal under the head of medical expenses at Rs.99,483/- and towards attendant charges, food nourishment etc., at Rs.6,500/- do not require any enhancement. By taking the laid up period to be 3 months, the petitioner is entitle for Rs.10,666/- x 3 = Rs.31,998/-. Hence, the petitioner is entitled for a total compensation of Rs.4,79,084/- under the following heads:

13. In view of the above discussion, the appeal deserves to be allowed in part. Hence, the following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award of the Tribunal is modified and the petitioner is entitled for a compensation of Rs.1,98,271/- along with interest at 6% pa from the date of the petition till deposit, in addition to what has been awarded by the Tribunal.

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

(iv) Rest of the order of the Tribunal regarding apportionment and fixed deposit stands unaltered.