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MFA No. 103394 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 103394 OF
2014 (MV-I)
BETWEEN:
1. MRUTYUNJAYA S/O IRAPPA HASABI
AGE: 29 YEARS, OCC: DRIVER CUM AGRI. NOW NILL,
R/O: HIRECHAKUNI, TQ: KUNDAGOL, DIST: DHARWAD
...APPELLANT
(BY SRI. HANAMANT R LATUR, ADVOCATE)
AND:
1. ENRCON INDIA LTD.,
PLOT NO.610611, R/O: SADODAR, TQ: JAMJODHPUR,
DIST: JAMNAGAR
STATE-GUJARAT-360520, NOW AT MANAGER, ENERCON
INDIA LTD., NEAR BUS STAND, SHIRAHATTI, TQ:
SHIRAHATTI, DIST: GADAG.
2. THE UNITED INDIA INSURANCE CO. LTD.,
ISSUING OFFICE, NEAR GIDC, CHAR RASTA, OPP. RAHAT
Digitally HOTEL, N.H.NO-8, VAPI, THROUGH ITS DIVISIONAL
signed by
OFFICE, DIVISIONAL MANAGER, THE UNITED INDIA
John John Doe
Date: INSURANCE CO. LTD., ANKOLA ARCADE, JUBILEE CIRCLE,
Doe 2022.09.19
12:18:09 DHARWAD.
+0530
...RESPONDENTS
(BY SRI. H.R.KAMBIYAVAR, ADVOCATE FOR R1,
SRI.N.R.KUPPELUR, ADVOCATE FOR R2)
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MFA No. 103394 of 2014
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED 21.07.2014 PASSED IN MVC
NO.663/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL
DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for both the parties.
2. This appeal is filed by the claimant challenging the judgement and award passed in MVC No.663/2012 dated 21.07.2014 on the file of the Principal Civil Judge and Additional MACT, Dharwad (hereinafter referred to as 'the Tribunal' for short), questioning the quantum of compensation.
3. Brief facts of the case are as under:
A claim petition came to be filed under Section 166 of the Motor Vehicles Act contending that on the claimant met with an accident on 15.01.2012, as a result he had suffered comminuted fracture of femur, tibia and fibula -3- MFA No. 103394 of 2014 and he was inpatient for a period of 105 days on three different occasions and he spent huge money for his treatment and thus sought for awarding suitable compensation.
4. Learned counsel for the claimant vehemently contends that in support of his claim, he examined doctor as PW.2 and he assessed the disability at 56% to whole body and Tribunal taken disability of 19% and failed to take note that he had suffered compound fracture of femur, tibia and fibula and also there are mal union of tibia and fibula. The Tribunal also taken the income on a lesser side i.e. Rs.6,000/- and accident is of the year 2012 and notional income would be Rs.6,500/- and apart from that he was working as driver and was an agriculturist and in order to substantiate his contention that he was working as driver copy of driving extract at Ex.P.7 is produced. Counsel also submits that the income taken by the Tribunal while calculating future loss of income and loss of income during laid up period is also meager and -4- MFA No. 103394 of 2014 compensation awarded by the Tribunal on other heads is also very meager. Thus, sought for enhancement of compensation.
5. Per contra, learned counsel for respondents submits that the Tribunal considered the income at Rs.6,000/- in the absence of any documentary evidence and also awarded just and reasonable compensation on other heads and hence, it does not require any interference.
6. In view of the factual aspects, the following point would arise for consideration:
1. Whether the Tribunal has committed an error in not awarding just and reasonable compensation?
2. What order?
7. Regarding point Nos.1 and 2: Having heard the learned counsel for parties and on perusal of the material on record, the claimant got marked wound certificate as -5- MFA No. 103394 of 2014 Ex.P.4, wherein he has suffered fracture of right femur, tibia and fibula and in support of his claim also examined doctor as PW.2 and doctor in his evidence has deposed the disability as 56% and Tribunal considered future loss of income considering the disability of 19% and the doctor says in his evidence that permanent physical impairment to the extent of 56% with respect to right lower limb and Tribunal taken 1/3rd of the disability and failed to take note of evidence of doctor, wherein he has categorically stated that right knee and leg shows mal united fracture of tibia and fibula. The Tribunal further failed to take note of the mal uniting of fracture of tibia and fibula. When such being the case, the disability taken by the Tribunal is on lesser side and hence, it is appropriate to add 10% to fracture of femur and 8% to tibia and 4% to supporting bone fibula, it comes to 22% and having added another 4% for mal union of fracture of tibia and fibula, it comes to 26% and photographs produced before the Court are also taken note of regarding condition of the injured claimant.
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MFA No. 103394 of 2014
8. Now this Court has to reassess the
compensation in keeping the medical records available on record and also period of treatment. The Tribunal has awarded Rs.50,000/- towards pain, shock and suffering and having considered the claimant was inpatient in the hospital on different occasions for three times and also considering compound fracture of femur, tibia and fibula and he was subjected to surgery, it is appropriate to enhance the same to Rs.75,000/- as against Rs.50,000/-. The Tribunal has awarded Rs.40,000/- on loss of amenities and the injured being aged 27 years as on the date of accident and also this Court has reassessed disability at 26%, it is appropriate to enhance the same to Rs.60,000/-. Towards loss of income during laid up period for four months is taken and Ex.P.7 disclose that he was having driving licence to drive motorcycle as well as LMV empty vehicle, and he was a driver and an agriculturist, it is appropriate to add additional sum of Rs.1,000/- to the income since he was having driving licence and notional income would be Rs.6,500/- and -7- MFA No. 103394 of 2014 hence this Court has taken the income as Rs.7,500/- as his income. The claimant had suffered three fractures and if six months loss of income during laid up period is taken, it comes to Rs.45,000/- (Rs.7,500 x 6) as against Rs.24,000/-. Towards attendant charges, the Tribunal has awarded Rs.24,000/- and claimant has produced Exs.P.13 and 14 discharge summary, wherein he was inpatient at the first instance from 15.01.2012 to 31.01.2012 and he was again readmitted from 04.02.2012 to 12.03.2012. The claimant also relied letter i.e. bill-cum-summary dated 24.04.2012, wherein it discloses that he was admitted to hospital on 15.03.2012 and discharged on 24.04.2012 and no discharge card is produced before the Court except the bill-cum-summary, which is also in the form of letter and the said document cannot be treated as genuine document to treat the same as the claimant was inpatient in the hospital. Hence, by taking 52 days hospitalization, it is appropriate to enhance the same to Rs.50,000/- as against Rs.24,000/- towards attendant charges. -8-
MFA No. 103394 of 2014
9. The Tribunal has awarded Rs.2,63,547/- towards medical expenses and since the same is based on documentary evidence, the same is retained. In respect of loss of future income, this Court assessed the income as Rs.7,500/-. Hence, the claimant is entitled for Rs.7,500 x 12 x 17 x 26% = Rs.3,97,800/-.
10. Towards future medical expenses, the Tribunal considering the evidence of PW.2 and implant in situ, has awarded Rs.30,000/- and the same is just and reasonable. Counsel for the claimant would contend that Rs.27,000/- bill is produced in respect of follow up treatment and with regard to follow up treatment is concerned, examined PW.3, who claims that he has issued receipt for having taken the vehicle in order to take follow up treatment and in support of follow up treatment, no documents are produced before the Court and hence, the claimant is not entitled for any compensation with regard to evidence of PW.3 and bills which have been produced and this Court has already considered the conveyance -9- MFA No. 103394 of 2014 charges and other incidental expenses by enhancing Rs.24,000/- to Rs.50,000/-. Hence, in all the claimant is entitled for Rs.9,21,347/-. Accordingly point Nos.1 and 2 are answered.
11. In view of the discussions made above, I pass the following:
ORDER Appeal is allowed in part.
In modification of the impugned judgment and award passed by the Tribunal, the claimant is entitled for a sum of Rs.9,21,347/- with interest at 6% p.a. from the date of petition till realization as against Rs.6,64,107/- awarded by the Tribunal in the impugned judgment and award.
Compensation shall be payable within six weeks from the date of this order.
Apportionment and deposit of the compensation amount would be as per the award of the Tribunal.
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MFA No. 103394 of 2014 The registry is directed to transmit the trial court records forthwith.
sd JUDGE sh List No.: 1 Sl No.: 2