DATED THIS THE 26 THjudgmenthck.kar.nic.in/judgments/bitstream/123456789/907807/1/M… · 1 in the...

1

IN THE HIGH COURT OF KARNATAKA

CIRCUIT BENCH AT GULBARGA

DATED THIS THE 26TH DAY OF APRIL 2013

B E F O R E

THE HON’BLE Dr.JUSTICE JAWAD RAHIM

M.F.A.CROB NO. 1035 OF 2012, CROB 1036/2012,CROB 1037/2012, CROB 1038/2012, CROB 1039/2012

C/W MFA.32122/2011, 32123/2011, 32124/2011/32125/2011, 32126/2011, 32127/2011, 32128/2011

IN M.F.A. CROB NO. 1035/2012

BETWEEN

VAISHNAVI D/O KUMAR BHANDARIAge:11 YEARS

OCC STUDENT, MINOR,U/G OF HER NATURAL FATHER,

KUMARS/O NARASAPPA BHANDARI,

AGE:38 YRS, OCC NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,

CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA-585102

... CROSS OBJECTOR

(BY SRI. SHIVASHARANA REDDY, ADV.,)

AND

1. NISSAR S/O YAKHUB KARASE,Age: 43 YEARS

OCC: BUSINESS & OWNER OF ASHOK LEYLAND LORRYNO.KA-39-5056, R/O RAJESHWAR,

2

BASAVAKALYAN, DIST. BIDAR – 585 401.

2.THE NATIONAL INSURANCE CO.LTD.,

THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX,

SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER,

DIVISIONAL OFFICE, 1ST FLOOR,BILGUNDI COMPLEX, MAIN ROAD,

MINI VIDHANA SOUDHA,GULBARGA-585103

THROUGH ITS DIVISIONAL MANAGER ... RESPONDENTS

(BY SMT: PREETI PATIL, ADV., FOR R2)

MFA CROB FILED U/O 41 RULE 22 OF CPC AGAINST

THE JUDGMENT AND AWARD DATED 06.04.2011 PASSED IN

MVC NO.1075/2009 ON THE FILE OF THE PRL. CIVIL JUDGE

(SR.DN) & MACT AT GULBARGA, PARTLY ALLOWING THE

CLAIM PETITION AND SEEKING ENHANCEMENT OF

COMPENSATION.

IN M.F.A. CROB NO. 1036/2012

BETWEEN

ZARANAMMA @ SHANTA,W/O KUMAR BHANDARI

Age:33 YEARS, OCC: NOW NILR/O CHANDANAHALLI,

NOW AT H.NO.11-28,CHOUDESHWAR COLONY,

BRAHMPUR,GULBARGA

... CROSS OBJECTOR


3

AND

1. NISSAR S/O YAKHUB KARASE,

Age: 43 YEARS, OCC BUSINESS & OWNER OFASHOK LEYLAND LORRY

BEARING NO.KA-39-5056R/O RAJESHWAR, BASAVAKALYAN,

DIST. BIDAR - 585401

2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE

DR. JAWALI COMPLEX, SUPER MARKETGULBARGA, BY ITS DIVISIONAL MANAGER,

DIVISIONAL OFFICE, 1ST FLOOR,BILKGUNDI COMPLEX, MAIN ROAD,

MINI VIDHANA SOUDHA, GULBARGA.

THROUGH ITS DIVISIONAL MANAGER

... RESPONDENTS

(BY SMT : PREETI PATIL, ADV., FOR R2,)

MFA CROB FILED U/O 41 RULE 22 OF C.P.C AGAINST





COMPENSATION.

IN MFA CROB. NO. 1037/2012

BETWEEN

ASHWINI, D/O KUMAR BHANDARIAge:14 YEARS, OCC: STUDENT, MINOR,

U/G OF HER NATURAL FATHER,

KUMAR S/O NARASAPPA BHANDARI,

4

AGE:38 YEARS, OCC NOW NIL,

R/O CHANDANAHALLI, NOW H.NO.11-28,CHOUDESHWAR COLONY, BRAHMPUR – 585 102,

GULBARGA.

... CROSS OBJECTOR


AND

1. NISSAR, S/O YAKHUB KARASE,Age: 43 YEARS, OCC: BUSINESS & OWNER OF

ASHOK LEYLAND LORRYBEARING NO.KA-39-5056,

R/O RAJESHWAR, BASAVAKALYAN,

DIST. BIDAR-585 401.

2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE,

DR. JAWALI COMPLEX, SUPER MARKET,GULBARGA, BY ITS DIVISIONAL MANAGER,

DIVSIONAL OFFICE, 1ST FLOOR, BILKGUNDI COMPLEX,MAIN ROAD, MINI VIDHANA SOUDHA,

GULBARGA – 585 102.THROUGH ITS DIVISIONAL MANAGER

... RESPONDENTS

(BY SMT : PREETI PATIL, ADV., FOR R2)






COMPENSATION.

5

IN MFA CROB. NO. 1038/2012

BETWEEN

SRINIVAS, S/O RAJANNA BHANDARIAge: 31 YEARS, OCC: NIL,

R/O CHANDANAHALLI, NOW H.NO.11-28,CHOUDESHWAR COLONY,

BRAHMPUR, GULBARGA-585102

... CROSS OBJECTOR(BY SRI. SHIVASHARANA REDDY, ADV.,)

AND

1. NISSAR, S/O YAKHUB KARASE,

Age: 43 YEARS, OCC BUSINESS & OWNER OFASHOK LEYLAND LORRY

BEARING NO.KA-39-5056,R/O RAJESHWAR, BASAVAKALYAN,

DIST. BIDAR - 585401

2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE

DR. JAWALI COMPLEX, SUPER MARKET,GULBARGA, BY ITS DIVISIONAL MANAGER,

DIVSIONAL OFFICE, 1ST FLOOR, BILGUNDI COMPLEX,MAIN ROAD, MINI VIDHANA SOUDHA, GULBARGA

THROUGH ITS DIVISIONAL MANAGER

... RESPONDENTS




6



COMPENSATION.

IN MFA.CROB NO 1039 OF 2012

BETWEEN

KUMAR, S/O NARASAPPA BHANDARI

Age:38 YEARS, OCC: NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28

CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA - 585102

... CROSS OBJECTOR


AND

1. NISSAR, S/O YAKHUB KARASE,Age: 43 YEARS,

OCC: BUSINESS & OWNER OFASHOK LEYLAND LORRY

BEARING NO.KA-39-5056,R/O RAJESHWAR, BASAVAKALYAN,

DIST. BIDAR – 584 401

2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE,

DR. JAWALI COMPLEX, SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER, DIVSIONAL OFFICE,

1ST FLOOR, BILKGUNDI COMPLEX, MAIN ROAD,

MINI VIDHANA SOUDHA, GULBARGA - 585102THROUGH ITS DIVISIONAL MANAGER

... RESPONDENTS

(BY SMT : PREETI PATIL, ADV.,FOR R2)

7






COMPENSATION.

IN MFA. NO. 32122 OF 2011

BETWEEN

THE NATIONAL INSURANCE CO.LTD.,

THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX, SUPER MARKET GULBARGA,

BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,1ST FLOOR, BILGUNDI COMPLEX, MAIN ROAD,

MINI VIDHANA SOUDHA, GULBARGATHROUGH ITS DIVISIONAL MANAGER

(NOW REPRESENTED THROUGHASST. MANAGER, NATIONAL INSURANCE CO. LTD

D.O, GULBARGA)

... APPELLANT

(BY SMT. PREETI PATIL, ADV.,)

AND

1. KUMAR, S/O NARASAPPA BHANDARIAge:37 YEARS, OCC: NOW NIL,

R/O CHANDANAHALLI, NOW H.NO.11-28CHOUDESHWAR COLONY,

BRAHMPUR GULBARGA

2. NISSAR, S/O YAKHUB KARASE,Age: 43 YEARS,

OCC: BUSINESS & OWNER OF

ASHOK LEYLAND LORRY

8

BEARING NO.KA-39/5056,

R/O RAJESHWAR, BASAVAKALYAN,DIST. BIDAR.

... RESPONDENTS

(BY SRI. SHIVASHARANA REDDY, ADV., FOR R1,)

MFA FILED U/S 173(1) OF MV ACT AGAINST THE

JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.

1074/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.

DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM

PETITION AND AWARDING COMPENSATION OF RS

1,25,000/- WITH INTEREST AT 6% P.A.

IN MFA. 32123/2011

BETWEEN


THROUGH ITS BRANCH OFFICE,

DR. JAWALI COMPLEX,SUPER MARKET GULBARGA,

BY ITS DIVISIONAL MANAGER,DIVISIONAL OFFICE, 1ST FLOOR,

BILGUNDI COMPLEX, MAIN ROAD,MINI VIDHANA SOUDHA, GULBARGA

THROUGH ITS DEPOT MANAGER(NOW, REPRESENTED THROUGH

ASST. MANAGER, NATIONAL INSURANCE CO. LTDD.O, GULBARGA)

... APPELLANT

(BY SMT: PREETI PATIL, ADV.,)

AND

9

1. VAISHNAVI, D/O KUMAR BHANDARIAge:10 YEARS

OCC STUDENT, MINOR,U/G OF HER NATURAL FATHER

KUMAR,S/O NARASAPPA BHANDARI,

AGE:37 YEARS, OCC NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,

CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA.


Age: 42 YEARSOCC: BUSINESS & OWNER OF ASHOK LEYLAND LORRY

NO.KA-39-5056, R/O RAJESHWAR,

BASAVAKALYAN, DIST. BIDAR – 585 401.

….RESPONDENT(BY SRI. SHIVASHARANA REDDY, ADV.,)







IN MFA 32124/11

BETWEEN


THROUGH ITS BRANCH OFFICEDR. JAWALI COMPLEX, SUPER MARKET

GULBARGA, BY ITS DIVISIONAL MANAGER,

DIVSIONAL OFFICE, 1ST FLOOR,

10

BILGUNDI COMPLEX, MAIN ROAD,

MINI VIDHANA SOUDHA, GULBARGA.THROUGH ITS DEPOT MANAGER

(NOW, REPRESENTED THROUGHASST. MANAGER, NATIONAL INSURANCE CO. LTD

D.O, GULBARGA)

... APPELLANT

(BY SMT : PREETI PATIL, ADV.,)

AND

1. ZARANAMMA, W/O KUMAR BHANDARI

Age:33 YEARS, OCC: NOW NIL

R/O CHANDANAHALLI,NOW AT H.NO.11-28,

CHOUDESHWAR COLONY,BRAHMPUR,

GULBARGA

2. NISSAR, S/O YAKHUB KARASE & ANRAge: 43 YEARS, OCC: BUSINESS & OWNER OF

ASHOK LEYLAND LORRY BEARINGNO.KA-39/5056,

R/O RAJESHWAR, BASAVAKALYAN,DIST. BIDAR

... RESPONDENTS






11

PETITION AND AWARDING COMPENSATION OF RS 76,000/-

WITH INTEREST AT 6% P.A.

IN MFA. 32125/2011

BETWEEN


THROUGH ITS BRANCH OFFICE,DR. JAWALI COMOPLEX,


DIVISIONAL OFFICE, 1ST FLOOR,

BILGUNDI COMPLEX, MAIN ROAD,MINI VIDHANA SOUDHA, GULBARGA



... APPELLANT

(BY SMT: PREETI PATIL, ADV., FOR R2)

AND

1. NIKHIL, S/O KUMAR BHANDARI

Age:13 YEARSOCC: STUDENT, MINOR,

U/G OF NATURAL FATHERKUMAR, S/O NARASAPPA BHANDARI,

AGE:37 YRS, OCC NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,



Age: 42 YEARS

12

OCC: BUSINESS & OWNER OF ASHOK LEYLAND LORRY

NO.KA-39-5056, R/O RAJESHWAR,BASAVAKALYAN, DIST. BIDAR – 585 401.

….RESPONDENTS

(BY SRI. SHIVASHARANA REDDY FOR R1, ADV.,)







IN MFA. 32126/11

BETWEEN


THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX, SUPER MARKET,

GULBARGA, BY ITS DIVISIONAL MANAGER,DIVSIONAL OFFICE, 1ST FLOOR, BILGUNDI COMPLEX,

MAIN ROAD, MINI VIDHANA SOUDHA,GULBARGA – 585 102.



…..APPELLANT

(BY SMT : PREETI PATIL, ADV.,)

AND

13

1. ASHWINI, D/O KUMAR BHANDARIAge:13 YEARS, OCC: STUDENT, MINOR,

U/G OF HER NATURAL FATHER,KUMAR, S/O NARASAPPA BHANDARI,

AGE:37 YEARS, OCC: NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,



Age: 42 YEARS, OCC: BUSINESS & OWNER OFASHOK LEYLAND LORRY BEARING

NO. KA.39/5056, R/O RAJESHWAR,BASAVAKALYAN, DIST. BIDAR-585 401.

... RESPONDENTS

(BY SRI. SHIVASHARANA REDDY FOR R1, ADV.,)







IN MFA. 32127/2011

BETWEEN




DIVISIONAL OFFICE, 1ST FLOOR,

BILGUNDI COMPLEX, MAIN ROAD,

14

MINI VIDHANA SOUDHA, GULBARGA



... APPELLANT

(BY SMT: PREETI PATIL, ADV.,)

AND

1. SRINIVAS, S/O RAJANNA BHANDARI

Age:30 YEARSOCC: NOW NIL,

R/O CHANDANAHALLI, NOW H.NO.11-28,


2. NISSAR, S/O YANKHUB KARASE,

Age: 42 YEARS, OCC: BUSINESS & OWNER OFASHOK LEYLAND LORRY BEARING

NO.KA-39-5056, R/O RAJESHWAR,BASAVAKALYAN, DIST. BIDAR – 585 401.

….RESPONDENTS

(BY SRI. SHIVASHARANA REDDY, ADV., FOR R1, ADV.,)







15

MFA. 32128/2011

BETWEEN




DIVISIONAL OFFICE, 1ST FLOOR,BILGUNDI COMPLEX, MAIN ROAD,

MINI VIDHANA SOUDHA, GULBARGATHROUGH ITS DEPOT MANAGER

(NOW, REPRESENTED THROUGHASST. MANAGER, NATIONAL INSURANCE CO. LTD

D.O, GULBARGA)

... APPELLANT(BY SMT: PREETI PATIL, ADV.,)

AND

1. BABALU, S/O SRINIVAS BHANDARI

Age:11 YEARS, OCC: STUDENT,U/G OF NATURAL FATHER

SRI SRINIVAS, S/O RAJANNA BHANDARI,R/O CHANDANAHALLI, NOW H.NO.11-28,


2. NISSAR, S/O YANKHUB KARASE,

Age: 42 YEARS, OCC: BUSINESS & OWNER OF ASHOK

LEYLAND LORRY NO.KA-39-5056,R/O RAJESHWAR,

BASAVAKALYAN,DIST. BIDAR – 585 401.

….RESPONDENTS

(BY SRI. SHIVASHARANA REDDY, ADV., FOR R1)

16







THESE MFA CROBS A/W MFA’s COMING ON FORORDERS THIS DAY, THE COURT DELIVERED THE

FOLLOWING:-

J U D G M E N T

These appeals are directed against the common

judgment and award passed by the Civil Judge (Senior

Divn.) and MACT, Gulbarga, granting compensation to the

claimants for the injuries suffered by them.

2. M.F.A.32122/11 is by the insurance company against

the award in M.V.C.1074/2009 while the claimant is in

cross-objection in MFA.Crob.1039/12 seeking enhancement.

M.F.A.32123/11 is by the insurance company against the

award in M.V.C.1075/09, while the claimant is in cross-

objection in MFA.Crob.1035/12 seeking enhancement.

M.F.A.32124/11 is by the insurance company against the

award in M.V.C. 1076/09, while the claimant is in cross-

objection in MFA.Crob.1036/12 seeking enhancement.

17

Likewise M.F.A.32125/11 is by the insurance company

against the award in M.V.C.1077/2009, but the claimant has

not questioned it. M.F.A.32126/11 is by the insurance

company against the award in M.V.C..10768/2009 while the

claimant is in cross-objection in MFA.Crob.1037/12 seeking

enhancement. M.F.A.32127/11 is by the insurance

company against the award in M.V.C.1079/2009 while the

claimant is in cross-objection in MFA.Crob.1038/12 seeking

enhancement. M.F.A.32128/11 is by the insurance company

against the award in M.V.C..1080/2009, but the claimant

has not questioned it.

3. Occurrence of the accident on 25.11.2008 involving a

car bearing registration No.MH-11-H-3007 and a lorry

bearing registration No.KA-39/5056,validity of the insurance

policy and sufferance of injuries by the occupants of the car

is not brought in question. The insurer is aggrieved by the

direction of the Tribunal to indemnify the insured owner by

discharging the compensations awarded to the claimants.

18

4. The main ground to seek such relief is, the driver of

the lorry possessed licence to drive a transport vehicle, i.e.

M-HMV-rigid goods with effect from 16.4.1996 but not lorry.

Referring to this part of the licence, learned counsel,

Ms.Preeti Patil submits the vehicle involved in this case is a

goods vehicle and does not come in the category of 'heavy

motor vehicle with rigid chassis.' Therefore the driver did

not possess the requisite licence to drive the offending

vehicle and consequently there was violation of the terms of

insurance policy which absolves the insurance company. To

support such contention, she draws my attention to Section

10 of the Motor Vehicles Act which classifies types of

vehicles she submits the licence issued to the driver in this

case comes under Section 10(1)(j). She relies on the

decision in the case of NATIONAL INSURANCE COMPANY –

VS- MEENA AGGARWAL (III(2009) SLT 158) wherein the

apex court observed if the driver had licence for a

particular category of vehicle, he will not be licenced driver

to drive other type of vehicle.

19

Such view is taken in a case where the owner had allowed

the driver to drive his private use a non-transport vehicle

though it was registered as a taxi. In that situation, the

apex court held the driver should possess valid licence to

drive a taxi and as he did not possess such licence, the

owner has to be held liable and consequently the insurance

company will not be liable.

5. It must be noticed the decision has been rendered not

in a claim relating to a claim by a third person in the

accident, but in a case relating to a claim by the party

insured against the insurer for damages and in that context

the apex court observed the owner having allowed the

vehicle to be driven by the person who did not possess

licence to drive such vehicle, the insurance company has to

be absolved. This could be found from the decision cited by

the learned counsel in paragraph 7 which reads thus:

'Aforesaid was highlighted in National

Insurance Company Ltd. –vs- Kusum Rai,III(2006)

SLT 162-II (2006) ACC 19 (SC)= II (2006) CPJ 8

(SC) = 2006 (4) SCC 250. The said decision related

20

to liability in the case of third party. But in the instant

case no such claim is involved and the claim is

related to the damage of a vehicle"

In this view the decision of the apex court in the case of

2004 (3) SCC 797 applies to facts of this case which I have

already adverted to in M.F.A.31725/11. Thus the grounds

urged by the insurance company to avoid liability is

unsustainable.

6. Besides it must be noticed the driver of the offending

vehicle had sanction to drive 'M-HMV-rigid-chassis-

transport.' It is a clear indication that he had licence to

drive a heavy transport motor vehicle. Mere mention of

'rigid chassis' does not exclude a goods vehicle. On facts

also it has to be affirmatively held that the driver did

possess licence to drive lorry a transport vehicle involved in

the accident and any contention to the contrary is rejected.

7. This being the common ground, all the appeals filed

by the insurance company, viz., M.F.A. Nos.32122/11,

32123/11, 32124/11, 32125/11, 32126/11, 32127/11 and

32128/11 are dismissed as being devoid of merit.

21

8. Coming to cross-objections filed by the claimants

seeking enhancement of compensation, in

MFA.Crob.1035/12, the victim, Kum.Vaishnavi was aged 8

years at the time of the accident. She was claimant in

MVC.1075/09. She has suffered fracture of shaft of femur

of both legs and knees and other parts of the body. She

was initially treated at Govt. General Hospital, Solapur, and

then shifted to Markandey Solapur Sahakari Rugnalaya &

Research Centre, Solapur, where she was in-patient for 7

days; the injuries have left her disabled for life. The

Tribunal has granted Rs.20,000/- towards pain and

suffering which is low and is enhanced to Rs.35,000/-.

Towards medical expenses, Rs.16381/- is granted besides

Rs.2,500/- for special diet. It is on the lower side. Hence it

is enhanced to Rs.25,000/- including medical and

incidental expenses. Considering physical disability of 15%

to the whole body, she is awarded Rs.35,000/- towards

loss of marriage prospects. Towards loss of marriage

prospects, she is entitled to Rs.35,000/-. Physical

disability undoubtedly has had effect on her earning

22

capacity. When she reaches employable age. The Tribunal

has taken her income as Rs.15,000/- p.a. notionally which

is unrealistic. She is a young girl aged 8 years and

therefore, compensation has to be given towards loss of job

opportunity in future and for such grant, her income is

taken at Rs.4,500/- p.m. 15% of it comes to Rs.675/- p.m.

and annually it is Rs.8,100/-. Applying multiplier 15, she is

entitled to Rs.1,21,500/- (Rs.8,100/- x 15) towards loss of

future income. In all, claimant is entitled to Rs.2,51,500/-

as against Rs.1,00,000/- awarded by the Tribunal.

8. The claimant in MFA. Crob.1036/12-Zaranamma @

Shanta seeks enhancement of compensation awarded by

the Tribunal on the assertive contention that she has

suffered fracture of mandible, fracture of left transverse

process of T1 vertebra with condisplaced fracture of

posterior part of left first rib and injuries to other parts of

the body. She was first admitted to Government General

Hospital at Solapur and she claims to have spent

Rs.1,80,000/- towards medical expenses. She was a tailor

23

by profession and was aged 30 years at the time of the

accident and was earning Rs.6,000/- p.m. The Tribunal has

disbelieved her version regarding her income but has

accepted the medical evidence that she has suffered injuries

as averred. However, the learned member of the Tribunal

did not accept the evidence tendered by the medical officer,

Dr.Veeranna Satnoor (PW8) regarding his evaluation of

physical disability at 40%, and has awarded Rs.10,000/-

towards pain and suffering, Rs.25,000/- towards medical

expenses, Rs.10,000/- towards loss of future amenities in

life, Rs.3,200/- towards conveyance and special diet and

Rs.28,800/- towards loss of earning due to disability, in all,

Rs.76,000/-. It is on the lower side and needs to be re-

determined.

9. Medical evidence proves she has suffered grievous

injuries, particularly to her vertebra, towards pain and

suffering she is awarded Rs.35,000/-. Towards medical

and incidental expenses, she is awarded Rs.40,000/-,

towards loss of amenities she is awarded Rs.35,000/-.

Towards disfiguration and permanent scar on her face, she

24

is awarded Rs.20,000/-. There is no reason to disbelieve

she was a tailor by profession and was earning Rs.6,000/-

p.m. Towards loss of income during the laid-up period of 3

months, she is awarded Rs.18,000/-. Towards loss of

income consequent to physical disability, the Tribunal has

declined to accept medical evidence that she had 40%

disability. Keeping in mind the possible exaggeration, it will

be possible to take physical disability at 20%. Thus she will

be entitled to loss of income at Rs.1,200/- p.m. (20% of

Rs.6,000/-) and annually it will be Rs.14,400/-. She was

aged 33 years as per the Tribunal’s determination. Based

on it, the multiplier would be 16 and thus under this head,

she would be entitled to Rs.2,30,400/- (Rs.14,400/- x

16). In all, she is entitled to enhanced compensation of

Rs.3,78,400/- as against Rs.76,000/- awarded by the

Tribunal.

10. The claimant in MFA.Crob.1037/12-Ashwini is a

young girl aged 11 years and seeks enhancement of

compensation. She has suffered fracture of right femur and

25

grievous injuries over the right knee, hands and other parts

of the body. She has claimed reimbursement of medical

expenses of Rs.1,60,000/-. She has suffered physical

disability as determined by Dr.Kishore Mengaji (PW9) to an

extent of 20% of the whole body. The Tribunal, considering

her age as 11 years, has taken her income at Rs.15,000/-

p.a. for determining loss of future income, and has awarded

Rs.15,000/ towards pain and suffering, Rs.41,500/- towards

loss of earning due to disability, Rs.7,000/- towards medical

expenses, Rs.3,500/- towards conveyance and special diet,

Rs.10,000/- towards future amenities in life and

Rs.10,000/- towards loss of marriage prospects, in all,

Rs.87,000/-. It is certainly on the lower side and the award

needs re-determination.

11. Towards pain and suffering, the claimant is entitled

to Rs.35,000/-, towards medical expenses she is awarded

Rs.20,000/-, towards loss of amenities in life she is

awarded Rs.35,000/-, towards loss of marriage prospects

consequent to the disability, she is awarded Rs.35,000/-.

26

Towards loss of future income when she reaches

employable age, she has to be suitably compensated.

Therefore notionally her income is taken as RS.4,500/- p.m.

and not Rs.15,000/- p.a. as determined by the Tribunal.

20% of it would be Rs.900/- p.m. and annually Rs.10,800/-.

Applying multiplier 15, she would be entitled to

Rs.1,62,000/- (Rs.10,800/- x 15). Thus she is entitled

to enhanced compensation of Rs.2,87,000/- as against

Rs.87,000/- awarded by the Tribunal.

12. The claimant in MFA.Crob.1038/12-Srinivas has

suffered fracture of both bones of right arm, fracture of one

third of femur and injuries to other parts of the body. He is

examined by Dr.Kishore Mengaji (PW9) who has deposed

about his physical disability and has assessed it at 20% of

the whole body. The Tribunal has awarded Rs.25,000/-

towards pain and suffering, Rs.1,10,000/- towards medical

expenses, Rs.1,92,000/- towards loss of earning due to

disability, Rs.10,000/- towards loss of future amenities in

life and RS.3,000/- towards conveyance and special diet, in

27

all Rs.3,40,000/-. It is certainly on the lower side and

requires to be re-determined.

13. Towards pain and suffering, claimant is awarded

Rs.35,000/-. Towards medical expenses though he has

produced bills as per Exs.P45 to P104 amounting to

RS.1,13,087/-, Tribunal has awarded only Rs.1,10,000/-,

and no amount is awarded towards incidental expenses.

Hence, he is awarded under this head Rs.1,13,087/-. For

physical disability at 20%, he is entitled to Rs.35,000/-

towards loss of amenities in life. For calculating loss of

future income, Tribunal has taken his income at Rs.5,000/-

p.m. and on that basis computation has been done. It is

proved from evidence that the claimant was working in a

Dhaba and had regular income. He has filed income tax

returns vide Ex.P8 showing he had been paying for income

of Rs.12,000/- which the Tribunal has disbelieved. Such

approach is irrational. His income is therefore taken at

Rs.8,000/-, and 20% of it would be Rs.1,600/- p.m. and

annually Rs.19,200/-. The multiplier is 16 as chosen by

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the Tribunal and thus he will be entitled to Rs.3,07,200/-

(Rs.19,200/- x 16). Thus the claimant is entitled to

Rs.4,90,287/- as against Rs.3,40,000/- awarded by the

Tribunal.

14. The claimant in MFA.Crob.1039/12-Kumar has

suffered fracture of middle third of tibia and fibula and

injuries to other parts of the body. He is examined by Dr.

Kishore Mengaji (PW9) who has testified that the claimant

has suffered injuries as referred to above and has physical

disability to the extent of 15% of the lower limb and 10% in

relation to the whole body. He was aged 33 years and

claims to be a businessman, having an income of

Rs.11,000/- p.m. He has produced income tax returns at

Exs.P132 and P133. The Tribunal has disbelieved his

version. It has taken his income at Rs.5,000/- p.m. and

physical disability is taken at 10% in respect of the whole

body. Thus it has awarded Rs.96,000/- towards loss of

earning due to disability, Rs.15,000/- towards pain and

suffering, Rs.10,00/- towards loss of amenities in life and

29

Rs.4,000/- towards conveyance and special diet, in all,

Rs.1,25,000/-. It is certainly on the lower side and needs

to be re-determined.

15. The claimant is awarded Rs.35,000/- towards pain

and suffering and another Rs.35,000/- towards loss of

amenities in life. Towards medical and incidental expenses

he is awarded Rs.20,000/-. His income is taken as

Rs.9,000/- and at 10% loss of income would be Rs.900/-

and annually Rs.10,800/-. He was aged 31 years and

applying multiplier 16, he is awarded Rs.1,72,800/-

towards loss of income on account of physical disability.

Towards loss of income during the laid-up period of 3

months, he is entitled to Rs.27,000/-. In all, the claimant

is entitled to enhanced compensation of Rs.2,89,800/- as

against Rs.1,25,000/- awarded by the Tribunal.

16. In the result, I pass the following order:

I) All the appeals filed by the insurance

company, viz., M.F.A. Nos.32122/11,

32123/11, 32124/11, 32125/11, 32126/11,

30

32127/11 and 32128/11 are dismissed as

being devoid of merit.

II) All the cross-objections filed by the

claimants, viz., M.F.A. Crob.1035/12,

1036/12, 1037/12, 1038/12 and 1039/12 are

allowed in part as stated above.

III) The claimants are entitled to interest at 6%

p.a. on the enhanced compensation. The

insurance company shall discharge the award

in each case within eight weeks from today.

IV) Rest of the directions contained in the award

are affirmed.

SD/- JUDGE

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