M. Govinda vs N. Subbarao and Others

P.S. Dinesh Kumar, J.—Claimant - appellant in M.V.C. No. 174/2009 on the file of the Senior Civil Judge and MACT, Gangavathi (''Tribunal'' for short) has called in question the judgment and award of the Tribunal dated 05.04.2010 with a prayer for enhancement of the compensation. The Insurance Company is in appeal challenging the same order so far as the award of compensation under the head ''future loss'' is concerned.

Heard Shri Avinash Banakar, learned counsel appearing on behalf of Shri K. Varaprasad for the claimant and Shri Ravindra R. Mane for the respondent Insurance Company.

For the sake of convenience, the parties shall be referred to by the same status in which they were represented before the Tribunal.

The facts of the case are briefly stated as follows:

"The claimant suffered injuries in a motor vehicle accident while he was riding a motorcycle bearing registration No. KA-37/L-9620 which collided with another motor cycle on the Gangavathi Koppal road on 31.01.2009 at about 07:00 p.m. He presented a claim petition before the Tribunal, contending inter alia that he was earning Rs. 1,08,000/- per annum from his profession as an Advocate and agriculture; he had suffered a disability of 17% as per the disability certificate issued by an Orthopedic Surgeon; he had been suffering pain and agony and taken medical treatment. He made a claim of Rs. 5,50,000/-. The Tribunal on consideration of the material on record, awarded a compensation of Rs. 2,78,200/- under various heads. Being aggrieved, the claimant is in appeal as also the Insurance Company." 5. Learned counsel Shri Avinash Banakar submits that the Tribunal fell in error in considering the earning capacity of the claimant at Rs. 6,000/-, though he had placed on record the income tax returns as per Ex. P-12 and Ex. P-13. He submits that the Tribunal ought to have considered the income accepting the income mentioned in the income tax returns filed by the claimant and also awarded compensation under the head "loss of future earnings". He also submits that the compensation under various other heads is also inadequate and prays for allowing the appeal.

Per contra, Shri Ravindra R. Mane, submits that the Tribunal fell in error and misconstrued that the claimant would suffer loss in his future earnings, inasmuch as the claimant is an Advocate by profession and the agricultural operations which the claimant was carrying on prior to the accident would have continued post the accident as the same require only a supervision not personal and physical effort. In support of his contention, he places reliance on a ruling of this Court in the case of Mallikarjun Hosakote Vs. The General Manager, The Karnataka State Road Transport Corporation and The Deputy General Manager Internal Insurance Fund, KSRTC, . He has also placed the certified copies of the Ex. P-12 and Ex. P-13 for perusal of this Court.

After going through the material on record, it is clear that the appellant in his claim petition has averred that he was practicing lawyer and also an agriculturist. He not placed any material before the Court to show as to how there has been any loss in his future earnings. Therefore, the counsel for Insurance Company is right in his submission that the fracture suffered by the claimant would not affect him in any manner either to carry on his profession as an Advocate or to supervise agricultural operations. He draws my attention to the Ex. P-18, a disability certificate dated 01.12.2009 issued by Dr. P. Balasubramanyam (P.W. 3), wherein the Doctor has stated that the claimant approached him with an outpatient chit, wound certificate etc., in respect of injuries sustained in accident on 31.01.2009 and based on the record and the clinical examination, he has assessed a disability of 15% to 17% for the whole body. It is not discernable from the certificate as to how the Doctor has arriving at his assessment of disablement. Even while assessing, the Doctor has given a speculative figure of 15% to 17%. The entire certificate is based on the medical record carried by the claimant and the symptoms complained of by the claimant. Except this disability certificate, there is no other material before the Court to assess the disability, if any, the claimant has suffered due to the accident in question. Further the certificate is issued after a lapse of nearly one year by the doctor who has not treated him. In the circumstances, I am of the opinion that there could be no loss of future earnings for the claimant.

Learned counsel for the claimant has submitted that the Tribunal has recorded a finding that it would have taken three months for the claimant to recover and accordingly awarded Rs. 18,000/- by reckoning the earning capacity at Rs. 6,000/- per month and under the head ''pain and suffering'', a sum of Rs. 29,000/- has been awarded. Considering the nature of the fracture which is a grievous in nature, the award of compensation under the heads ''pain and suffering'', loss of amenities'', nourishment, attendant charges require some increment. The medical expenses have been fully reimbursed.

In the circumstances, the appeal filed by the Insurance must succeed. Accordingly, the compensation awarded under the head future loss requires to be set aside. Insofar as the other heads are concerned, which require certain modification, ends of justice will be met if the compensation is awarded in the following manner.

In the result, both the appeals are hereby disposed of by modifying the judgment and award of the Tribunal by awarding a total compensation of Rs. 1,45,400/- with interest to be computed at the rate of 6% p.a. from the date of presentation of claim petition till the date of payment.

Insurance Company in M.F.A. No. 22301/2010 is directed to pay the said compensation within three months from the today, excluding the statutory deposit of Rs. 25,000/-.

Registry is directed to transmit the statutory deposit of Rs. 25,000/- to the Senior Civil Judge and MACT, Gangavathi. No costs.