Prakash vs R. Kashinath and Others

N.K. Patil, J.—This is a claimant''s appeal against the impugned common judgment and award dated 18/12/2013, passed in MVC No. 11/2013, by the II Additional Senior Civil Judge and VI Additional Motor Accident Claims Tribunal, Davanagere, (for short ''Tribunal''), for enhancement of compensation.

Along with the appeal, appellant has also filed I.A. 1/2014, seeking condonation of delay of 163 days in filing the appeal.

Heard learned counsel appearing for appellant.

Learned counsel appearing for the appellant submitted that, the statements made in paras 2 and 3 of the affidavit accompanying the application may be accepted, delay may be condoned and matter may be heard on merits.

The delay of 163 days in filing the appeal has been explained in paragraph 2 of the affidavit dated 27.10.2014 accompanying the application, which reads thus:

"2. I submit that in the accident I have sustained injuries and I have spend huge amount towards treatment, after completion of my evidence my advocate at Davanagere has informed me that he will inform the result of the case as and when judgment is pronounced, my advocate at Davanagere informed me about the passing of the judgment and award only in the end of February 2014, but due to my ill health I could not able to contact my advocate at Davanagere, I contacted my advocate at Davanagere only in the 3rd week of July 2014, my advocate at Davanagere has advised me to file an appeal for enhancement of compensation, I collected the papers from him with great difficulty I came to Bangalore only in the end of October 2014 and filed this appeal without further delay, the delay is due to bonafide reasons and not intentional one, if delay is condoned no harm what so ever could be caused to other side, per contra I will be put to heavy and irreparable loss." 6. After hearing the learned counsel appearing for the appellant and after perusing the statements made in the affidavit filed in support of the application, it emerges that, the appellant has explained the said delay in a casual manner and no satisfactory reasons are assigned. Even the appellant has failed to give dates and events as to on what date he has applied for the certified copy of the judgment, on what date he has received the same and on what date, he has instructed his counsel to file this appeal. Except making bald statements, no credible or trustworthy reasons are assigned for explaining the said delay. It is pertinent to note from the backside of page No. 20 of the certified copy of the judgment that, copy was applied on 19.12.2013, it was ready on 31.1.2014 and delivered on 26.2.2014 and the appeal was filed on 27.10.2014. The delay from 26.2.2014 to 27.10.2014 has not been explained. The reasoning assigned is omnibus in nature and much credibility cannot be given to the explanation offered by the appellant for condoning the said delay, as he has to explain each day''s delay satisfactorily. Hence, in view of non explanation of the delay in filing the appeal, in a satisfactory manner, I am of the view that the said delay cannot be condoned nor the appellant has made out a good case to condone the same. Hence, for the foregoing reasons, I.A. 1/2014 is liable to be dismissed as misconceived and accordingly, it is dismissed.

However, in the interest of justice and equity, I have heard learned counsel appearing for the appellant at considerable length of time on merit and also perused the impugned judgment passed by the Tribunal. It is the specific submission of the learned counsel appearing for appellant that, in the accident that occurred on 12.9.2012 near Post Office, Forest Office road, Davanagere appellant has sustained fracture of medial epicondyle of right humorous and as per Ex. P9- Disability Certificate issued by PW3, he suffers from 10% disability to right upper limb, he is an ITI student as on the date of accident and it would affect his future. But this aspect of the matter has not been looked into or considered by the Tribunal while awarding compensation. Therefore, he submitted that the compensation awarded by the Tribunal is inadequate and is liable to be enhanced reasonably, as no compensation is awarded by the Tribunal towards loss of future earnings due to disability sustained by the appellant.

After careful consideration of the submission made by learned counsel appearing for the appellant and the reasoning given by the Tribunal in para-9 of the judgment, it emerges that, even if it is presumed that appellant has suffered 10% permanent disability to right upper limb, it cannot be treated as functional disability and the percentage of disability to whole body is very marginal. Therefore, the appellant has not made out any case to award any compensation under the head loss of future earnings due to disability'' and almost he has been put to some sort of discomforts and inconvenience on account of actual injuries. Taking all these factors into consideration, the Tribunal has justified in awarding a sum of Rs. 25,000/- towards pain and suffering, Rs. 20,000/- towards discomfort and loss of amenities in life, Rs. 4,000/- towards medical expenses, Rs. 3,000/- towards conveyance and extra nourishment food charges and in all, Rs. 52,000/- with interest at 8% p.a. from the date of petition till realization. The reason assigned by the Tribunal for awarding the said compensation on account of the injuries sustained by the appellant is just and reasonable and therefore, interference by this Court is not called for. Even the appellant has failed to make out any case that the disability is permanent in nature, due to which he has stopped his education and lost his future earning capacity. Therefore, the Tribunal has justified in not awarding any compensation towards loss of future income.

For the foregoing reasons, the appeal filed by the appellant is dismissed on the ground of delay and laches as also on merits.