Karnataka High Court
Badruddin I K @ Badruddin Ibrahim @ ... vs The New India Assurance Co Ltd on 31 July, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:30321
MFA No. 1916 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1916 OF 2018 (MV)
BETWEEN:
BADRUDDIN I K @ BADRUDDIN
IBRAHIM @ BADRUDEEN
AGED ABOUT 33 YEARS
S/O LATE IBRAHIM
R/A KUDKORIGUDDE
KANKANADY BYE PASS ROAD
MANGALURU
...APPELLANT
(BY SRI. GURUPRASAD B R.,ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE CO LTD
RAM BHAVAN COMPLEX
II FLOOR, KODIALBAIL
MANGALURU-575002
REPRESENTED BY ITS MANAGER.
Digitally signed by
HEMALATHA A 2. KANNUR MOHAMMED MUBARAK
Location: HIGH S/O HAMEED, ADULT
COURT OF R/A D.NO.2-11-3
KARNATAKA MUBARAK MANZIL, KUDALA
KANNUR, MANGALURU.
...RESPONDENTS
(BY SRI. S V HEGDE MULKHAND., ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH V/O DATED: 04.10.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:25.11.2017
PASSED IN MVC NO.552/2017 ON THE FILE OF THE 6TH
ADDITIONAL DISTRICT & SESSIONS JUDGE & MACT, D.K.,
MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
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NC: 2024:KHC:30321
MFA No. 1916 of 2018
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') has been filed by the claimant being aggrieved by the judgment dated 25.11.2017 passed by the VI Additional District & Sessions Judge & MACT, D.K., Mangaluru in MVC No.552/2017.
2. Facts giving rise to the filing of the appeal briefly stated are that on 04.12.2016 the claimant was proceeding by riding scooter bearing Registration No.KA- 19-EL-9777 from Padeel towards Pumpwell, at about 9.45 p.m., near Capithanio, Naguri, Mangaluru, at that time, the driver of the Car bearing Registration No.KA-19-MC- 7716 drove the same in a rash and negligent manner on wrong side from Pumpwell and dashed to the scooter. As -3- NC: 2024:KHC:30321 MFA No. 1916 of 2018 a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.
4. Upon service of notice, the respondent No.2 appeared through counsel and filed written statement denying the averments made in the claim petition. The respondent No.1, despite service of notice, did not appear before the Tribunal and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1, Dr.Shahanavaz Manipady was -4- NC: 2024:KHC:30321 MFA No. 1916 of 2018 examined as PW-2, and another witness was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P95. On behalf of the respondents, neither examined any witness nor exhibited any document. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.5,64,800/- along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest excluding the interest for future medical expenses. Being aggrieved, the present appeal has been filed.
6. The learned counsel for the claimant has raised the following contentions:
a) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.9,000/-, despite evidence -5- NC: 2024:KHC:30321 MFA No. 1916 of 2018 showing he earned Rs.30,000/- per month by working as a butcher in Noor Mutton Stall, Central Market, Mangalore.
b) Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 23 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment.
Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.
c) Due to the accident, the claimant has undergone surgery. The claimant has examined the doctor as PW-2. He has deposed that the claimant requires about Rs.30,000/- for removal of implants. But the Tribunal awarded only Rs.20,000/- for future medical expenses is on the lower side.
With the above contentions, learned counsel for the appellant sought to allow the appeal. -6-
NC: 2024:KHC:30321 MFA No. 1916 of 2018
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter- contentions:
a) Firstly, the assertion of claimant that he was earning Rs.30,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.
b) Secondly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.
c) Lastly, in respect of the future medical expenses is concerned, The doctor-PW-2 is not a treated doctor.
Therefore, considering the injuries suffered by the claimant and medical records, the Tribunal has rightly awarded compensation of Rs.20,000/- towards future medical expenses.
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NC: 2024:KHC:30321 MFA No. 1916 of 2018 With the above contentions, learned counsel for the Insurance Company sought to dismiss the appeal.
8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 04.12.2016 due to rash and negligent driving of the offending vehicle by its driver.
10. The claimant claims that he was earning Rs.30,000/- per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2016, notional income shall be taken at Rs.9,500/- p.m. -8- NC: 2024:KHC:30321 MFA No. 1916 of 2018
11. As per wound certificate, the claimant has sustained crushed injury of right foot and compressed fracture of right tibia and fibula, gangrene of the right 2nd toe and trans-metatarsal amputation, fracture of right angel of mandible, avulsion on skin of right foot and sole. The Tribunal, taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, has rightly taken the whole body disability at 10%. The claimant is aged about 32 years at the time of the accident and multiplier applicable to his age group is '16'. Thus, the claimant is entitled for compensation of Rs.1,82,400/- (Rs.9,500*12*16*10%) on account of 'loss of future income'.
12. The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 5 months. Consequently, the claimant is entitled for compensation of Rs.47,500/- (Rs.9,500*5 months) under the head 'loss of income during laid up period'. -9-
NC: 2024:KHC:30321 MFA No. 1916 of 2018
13. The claimant was hospitalized as an inpatient for more than 23 days in the hospital and subsequently received further treatment. Therefore, I am inclined to enhance the compensation awarded under the head of 'food, nourishment, conveyance and attendant charges' from Rs.32,500/- to Rs.38,000/-.
14. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.45,000/- to Rs.70,000/- and under the head of 'loss of amenities' from Rs.10,000/- to Rs.40,000/-.
15. Although the evidence of the doctor suggests that the claimant requires approximately Rs.30,000 for removal of implants, the claimant has not provided an estimate for future surgery. Considering the nature of the injuries and
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NC: 2024:KHC:30321 MFA No. 1916 of 2018 the evidence of the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'future medical expenses' from Rs.20,000/- to Rs.25,000/-.
16. Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
17. Thus, the claimant is entitled to the following compensation:
As awarded As awarded
by the by this
Compensation under Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 45,000 70,000
Medical expenses 2,66,500 2,66,500
Food, nourishment, 32,500 38,000
conveyance and
attendant charges
Loss of income during 18,000 47,500
laid up period
Loss of amenities 10,000 40,000
Loss of future income 1,72,800 1,82,400
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NC: 2024:KHC:30321
MFA No. 1916 of 2018
Future medical expenses 20,000 25,000
Total 5,64,800 6,69,400
18. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of Rs.6,69,400/-.
d) The Insurance Company is directed to deposit the compensation amount along with interest @ 6%p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.
Sd/-
(H.T. NARENDRA PRASAD) JUDGE HA List No.: 2 Sl No.: 85