Karnataka High Court
Syed Farez vs Manu B E on 2 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24632
MFA No. 5390 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5390 OF 2021 (MV-I)
BETWEEN:
SYED FAREZ
S/O SYED AKHIL,
AGED ABOUT 23 YEARS,
R/O VIJAYANAGAR EXTENSION,
NEAR CANARA BANK, GUDDENAHALLY ROAD,
HASSAN - 573 201.
...APPELLANT
(BY SMT. KAVITHA H C., ADVOCATE)
AND:
1. MANU B E
S/O ESHWARA M L,
DOOR NO.16,
BEHIND PANCHAYATH OFFICE,
BYRAPURA, ALUR TALUK,
HASSAN DISTRICT - 573 201.
2. THE MANAGER
NATIONAL INSURANCE COMPANY LTD.,
Digitally signed by
VEDAVATHI A K MANJUNATH COMPLEX,
Location: High OLD BUS STAND ROAD, HASSAN - 573 201.
Court of Karnataka
...RESPONDENTS
(BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R2;
VIDE ORDER DATED:27/2/24 NOTICE TO R1 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.21.04.2021 PASSED IN MVC NO.137/2019 ON
THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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MFA No. 5390 of 2021
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section 173(1) of Motor Vehicles Act, 1988 (for short hereinafter referred to as MV Act) challenging the judgment and award dated 21.04.2021 passed in MVC No.137/2019 passed by the II ADDL. District and Sessions Judge, Additional MACT, Hassan, (for short hereinafter referred to as 'Tribunal') for seeking enhancement of compensation.
2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2- Insurance Company. Issuing notice to respondent No.1 is hereby dispensed with.
3. The appellant was petitioner and the respondents were respondents before the Trial Court. The status of the parties before the Tribunal is retained for the sake of convenience.
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4. The case of the petitioner is that the petitioner filed petition under Section 166 of Motor Vehicles Act (for short 'M.V. Act') claiming compensation of Rs.10 lakhs under various heads. It is alleged that on 21.10.2018, when the petitioner was proceeding in his father's motor bike bearing Reg.No.KA.18H-5848 after completing his work, he was returning to his house along with his friend Irshaad who was pillion rider. At that time, at about 12.30 p.m., opposite to APMC Gate, a jeep bearing Reg.No.KA- 01-ML-1557 came from Thanneruhalla in a rash and negligent manner without giving signal and took U turn and dashed to the vehicle of the petitioner. Due to the accident, the petitioner suffered serious crush injury on his right leg and was shifted to the hospital. The petitioner was treated as inpatient for 43 days and underwent various surgeries.
5. Learned counsel for the petitioner has contended that the petitioner was earning Rs.30000/- p.m. by doing bar bending work and due to the injury, there is total -4- NC: 2024:KHC:24632 MFA No. 5390 of 2021 disability . Hence, prayed for the enhancement of compensation on various heads.
6. On receipt of the summons, the respondent No.1/owner of the vehicle appeared before the court through counsel, but not filed any statement of objection or contested the matter. The respondent No.2/Insurance Company, appeared and filed a statement of objection by denying the rash and negligent driving and also denied age, occupation and income of the petitioner as false. Also taken the contention that the driver of the jeep do not have any driving license for driving the vehicle. Hence, prayed for dismissing the petition.
7. On the basis of pleadings, the tribunal framed the following issues for consideration:
ISSUES:
1) Whether the Petitioner proves that, on 21.10.2018 at about 12.30 p.m. in front of APMC Gate, Hassan Town, driver drove the Jeep bearing Reg.No.K.A.01-ML-1557 in rash and negligent manner and caused accident?-5-
NC: 2024:KHC:24632 MFA No. 5390 of 2021
2) Whether the petitioner is entitled for compensation as ought for?
3) What Order or Award?
8. To prove the case, the petitioner himself was examined as P.W.1. and also examined another witness, the Doctor as PW2. They got marked documents from Exs.P1 to P18. The respondents not lead any evidence. After hearing the arguments, the tribunal answered issue No.1 in affirmative and issue No.2 in the partly affirmative. Accordingly, granted compensation of Rs.9,46,650-00/-, which is as under;
Pain and sufferings 75,000-00
Medical expenses 4,91,050-00
Diet, food, Nourishment, 35,000-00
Conveyance and other
expenditures
Loss of Income during laid 54,000-00
up period
Loss of Future Income 2,91,600-00
Total 9,46,650-00
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MFA No. 5390 of 2021
9. Being aggrieved with the quantum of compensation awarded by the tribunal, the claimant is before this court.
10. Learned counsel for the petitioner has contended the petitioner was treated in the hospital for more than one and half months and he has further taken treatment in the hospital to the crushed injury on the leg. The doctor has given 45% of the disability to the right lower limb and he is bar bender and his leg is totally disabled to move. He is a manual worker and 100% disability has to be considered. The tribunal taken only 15% disability is not correct. The tribunal considered income of Rs.9000/- per month, which is not correct. The petitioner claimed Rs.30,000/- per month. As per the notional income recognized by the Karnataka State Legal Services Authority, an income of Rs.12,500/- p.m., is to be considered. Learned counsel further contended there is no loss of amenities granted. Even the other expenditure future medical expenses are all not awarded by the -7- NC: 2024:KHC:24632 MFA No. 5390 of 2021 tribunal. Therefore, prayed for enhancing the compensation.
11. Per contra, learned counsel for the respondent supported the judgment of the tribunal and contended that the doctor given evidence stating that 45% disability to the right limb is considered 15%, it comes to one third of the whole body, rightly taken by the tribunal. However, he has agreed for enhancing income from Rs.9000/- p.m., to Rs.12,500/- p.m., as notional income as considered in the Karnataka State Legal Services Authority. Regarding other compensation in other heads are not required to be interfered. Hence, prayed for dismissing the petition.
12. Having heard the arguments, perused the records, the point that arises for my consideration is Whether the appellant is entitled for enhancement of compensation on the ground of disability, as well as other compensation on other heads, if so, what extent?
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13. The accident in question dated 21-10-2018 occurred at Hassan town due to negligent driving of the Jeep driver was not in dispute. The petitioner sustained crushed injury on his right leg due to the accident and as per Wound Certificate at Ex.P.8 and discharge summary, which reveals the petitioner has sustained crushed injury on tibia bones, which were fractured and he has undergone surgeries for fixing the legs etc. The tribunal considered income of the petitioner as only Rs.9000/- p.m.. Though the petitioner claimed he is a bar bender earning Rs.30,000/- p.m., etc., but he has not adduced any evidence of his employer or engineer to show he is working as bar bender. Therefore, there is no option for this court to consider the notional income. As per the notional income recognized by the Karnataka State Legal Services Authority, an income of Rs.12,500/- per month, to be considered for the accidents occurred during 2018. Therefore, income should be considered as Rs.12,500/- per month, instead of Rs.9,000/- considered by the tribunal.
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14. As regards to the pain and suffering, the tribunal awarded Rs.75,000/- the petitioner was hospitalized for 43 days and therefore Rs.75,000/- was awarded towards pain and suffering, is not insufficient as contended by the learned counsel for the petitioner.
15. As regards to the medical expenses Rs 4,91,050/- is awarded, which is based upon the medical record. Hence, the same is just and proper.
16. The food, nourishment, conveyance charges awarded for Rs.35,000/- by the tribunal, whereas the petitioner admitted in the hospital for 43 days. The petitioner could have come to the hospital for review and further treatment as outpatient. Such being the case, awarding Rs.35,000/- is very meager. Therefore, I propose to enhance to Rs.50,000/- towards food nourishment and conveyance charges.
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NC: 2024:KHC:24632 MFA No. 5390 of 2021 Loss of laid up period was paid for 6 months and the same is retained. Hence, after the revised income of Rs.12500 x 6 months = Rs.75000/-, will be the amount towards loss of laid up period.
17. The petitioner has sustained grievous crushed injury. The photographs reveals the same. Even after the treatment, the rings and ankles were fixed on his leg and he cannot sit, squat, stand and walk for long time as per the evidence of PW2. Such being the case, the petitioner definitely has been suffering from loss of future amenities and the appellant/petitioner also is unmarried person. Such being the case, atleast it should be awarded for Rs.50,000/- towards loss of future amenities. The doctor also stated implant has to be removed over a period of time and he requires another one and half lakhs. But the tribunal awarded nothing. Therefore, considering facts and circumstances, I propose to award Rs.1 lakh towards future medical expenses.
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18. As regards to the loss of future income for disability, the doctor has opined 45% to the lower right limb, suffering by the petitioner. To prove the disability, the petitioner has examined PW2 doctor Dr.Abdul Basheer, Orthopedic surgeon, he has stated that the right knee and ankle movements are restricted and he is not able to lift weight or walk. He is not able to walk for long distance and not able to squat and the fracture also not united. As per the evidence of the doctor, he has assessed the disability towards right lower limb and regarding mobility he has considered 13% and the extra points i.e, restriction of movements, he has considered 6% and also the climbing, standing, squatting, sitting across, kneeling, taking turns are considered 26% and totally is considered 45% to the lower limb.
19. Learned counsel for the appellant has contended looking to the evidence of doctor, the petitioner is a manual worker bar bender and due to the disability he cannot do the same work and he cannot stand. Therefore,
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NC: 2024:KHC:24632 MFA No. 5390 of 2021 there shall be functional disability of 100%. Therefore, prayed for granting 45% as disability and 40% towards future prospectus. On perusal of the records, though the doctor given evidence, there is no disability produced by him. The evidence is given by the doctor based upon the medical records. The photographs as well as the X-ray film reveals, the steel walls/nails still in situ and the crush injury to the bones were not properly united as per the x- ray dated 21.10.2018 and 24.10.2018 and also 10.11.2018, which reveals bones were not properly united and still he is not able to stand for long time or able to walk properly and cannot do work as he was working before.
20. Learned counsel for the respondent contented the doctor has not stated anything about him being not able to work or can work, but on perusal of the evidence on record, the documents prima facie reveals crushed injury is still not united. The petitioner is only 21 years age. Whether he is working manual or not working, but
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NC: 2024:KHC:24632 MFA No. 5390 of 2021 his disability is to be considered properly and no amount of money can be compensated for a leg, if it is lost. Such being the case, I am of the view taking 15% disability 1/3rd cannot be considered in this case. Therefore, I propose 40% towards the disability of whole body instead of 40% of future prospectus or 15% of disability. Hence, the Loss of future earning capacity, if the income of the injured is considered as Rs.12,500/- multiplied into 12 months and further multiplied to 18 multiplier x 40% of disability is considered which is as under;
Rs.12,500/- x 12 x 18 x 40% = Rs.10,80,000/- is granted towards loss of future earning capacity.
21. The components awarded by this court are as follows,
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MFA No. 5390 of 2021
Pain and sufferings 75,000-00
Medical expenses 4,91,050-00
Diet, food, Nourishment, 50,000-00
Conveyance and other
expenditures
Loss of Income during laid up 75,000-00
period
Future Medical expenses 1,00,000-00
Loss of future amenities 50,000-00
Loss of Future Income 10,80,000-00
Total 19,21,050-00
Rounded to 19,21,000-00
22. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part. ii. The judgment of the tribunal dated 21.04.2021 passed in MVC No.137/2019 passed by the II ADDL. District and Sessions Judge, Additional MACT, Hassan, is hereby modified.
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NC: 2024:KHC:24632 MFA No. 5390 of 2021 iii. The claimant is entitled to a total compensation for a sum of Rs.19,21,000/- along with interest of 6% p.a., instead of Rs.9,46,650/- granted by the tribunal.
iv. The enhanced compensation amount shall be paid by the respondent-Insurance Company with interest @ 6% per annum, excluding the future medical expenses, within a period of two months from the date of receipt of a copy of this order. v. Out of the total amount, Rs.10 lakhs shall be deposited in the Fixed Deposit in the name of the petitioner for 5 years in any of the Nationalized Bank and the remaining amount shall be released to the petitioner.
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NC: 2024:KHC:24632 MFA No. 5390 of 2021 vi. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay; and vii. Draw award accordingly.
Sd/-
JUDGE AKV List No.: 1 Sl No.: 53 CT:SK