Karnataka High Court
Mubarak vs Channareddy And Ors on 26 June, 2024
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NC: 2024:KHC-K:4288
MFA No. 201838 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 201838 OF 2017 (MV-I)
BETWEEN:
MUBARAK
S/O HUSSAIN PATEL,
AGE: 39 YEARS,
OCC: CENTERING GUTTEDAR,
R/O. TAJ NAGAR, MUSLIM SANGH,
KALABURAGI-584101.
...APPELLANT
(BY SRI BABU H. METAGUDDA, ADVOCATE)
Digitally signed by AND:
SHIVALEELA
DATTATRAYA UDAGI
Location: HIGH
COURT OF 1. CHANNAREDDY
KARNATAKA S/O MUNIYAPPA PATIL,
R/O. H.NO.11-169, 13 D UPPER LANE,
NEAR RAGHAVENDRA TEMPLE,
BRAHAMPUR,
KALABURAGI-585104.
2. THE PRINCIPAL KAYAK EDUCATION TRUST,
SARVAGNYA PU COLLEGE OF SCIENCE,
BEHIND SAI MANDIR,
KALABURAGI-585104.
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NC: 2024:KHC-K:4288
MFA No. 201838 of 2017
3. THE DIVISIONAL MANAGER
UNITED INSURANCE CO LTD.,
JAWALI COMPLEX,
SUPER MARKET,
KALABURAGI-585104
...RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE FOR R3;
VIDE ORDER DATED 19.10.2022 NOTICE
TO R1 AND R2 ARE DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS IN MVC NO.694/2015 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT AT
KALABURAGI, ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED 04.07.2017 PASSED IN MVC
NO.694/2015 BY THE II ADDITIONAL SENIOR CIVIL JUDGE
AND MACT AT-KALABURAGI, AND ENHANCING THE
COMPENSATION FROM RS.2,17,500/- WITH 6% INTEREST TO
RS.14,99,000/- WITH 12% INTEREST. AND ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-K:4288
MFA No. 201838 of 2017
JUDGMENT
This is claimant's appeal for enhancement of compensation awarded by the II-Addl. Senior Civil Judge & MACT, Kalaburagi (hereinafter referred to as 'the Tribunal' for short) in MVC No.694/2015 dated 04.07.2017.
2. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal.
3. It is the case of the claimant/appellant that on 30.08.2014 at about 3:45 p.m. petitioner and another labour by name Irfan Ahmed were proceeding on motorcycle bearing Reg.No.KA-39/J-1500 from Auto nagar to Humnabad. They were going on ring road, at Syed Chincholi cross, near Aland Check post, they met with an accident due to rash and negligent driving of school bus bearing Reg.No.KA-32/A-7126 by its driver. As a result of which petitioner had sustained head injury, shaft of right tibia and fibula. Immediately he was taken to Basaveshwar Teaching and General Hospital, Kalaburagi, thereafter to Chirayu Hospital, Kalaburagi and subsequently to the -4- NC: 2024:KHC-K:4288 MFA No. 201838 of 2017 Kamareddy Ortho & Trauma Care Hospital, Kalaburagi, wherein he was admitted as inpatient from 03.09.2014 to 10.09.2014 and he was undergone surgery. Claimant had spent more than Rs.2,50,000/- towards medical treatment.
4. It is further case of the petitioner that he was working as 'centering contractor' and earning Rs.15,000/- per month. Due to injuries sustained in the accident, he has been suffering from permanent disability, which is affecting his earning capacity. With these reasons, the claimant prayed to award compensation of Rs.23,40,000/-
5. Respondent Nos.1 and 2 are owners of said bus and respondent No.3 is insurer. They have denied the contentions of the petitioner and they further contended that accident had taken place due to negligence of the rider of the motorcycle. With these reasons prayed to dismiss the claim petition.
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6. From the rival contentions of both the parties, the Tribunal had framed the necessary issues for its determination.
7. The claimant to prove his case examined PWs.1 to 3 and got marked Exs.P1 to 20 and closed his evidence. Respondents have not led any evidence, however, got marked Ex.R1/insurance policy.
8. After hearing both the parties and appreciating the evidence available on record, the Tribunal by its impugned judgment, awarded the following amount of compensation.
Sl.No. Particulars Amount
1. pain and suffering Rs.10,000/-
2. Loss of future income Rs.1,21,000/-
3. Attendant charges, food and Rs.6,000/-
conveyance charges
4. Medical expenses Rs.68,100/-
5. Loss of income during treatment Rs.2,400/-
6. Loss of amenities and nutrition food Rs.10,000/-
Total Rs.2,17,500/-
9. Heard arguments of learned counsel for both the parties.
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10. The learned counsel for the appellant would submit that the Tribunal has awarded meager amount of compensation on all the heads. The claimant has examined PW.2 and 3 who have issued disability certificate for the respective injuries sustained by him. The Tribunal has not considered it properly and determined disability to an extent of 12%, though PW.2 has stated that the claimant has been suffering from permanent disability to an extent of 33% and PW.3 has stated that claimant has been suffering from permanent disability to an extent of 36% to the whole body. The learned counsel further submitted that the Tribunal has not properly assessed income of the claimant, which needs to be considered. With these reasons prayed for enhancement of compensation.
11. The learned counsel for respondent No.3 supports the impugned judgment and award and submits that the Tribunal has considered materials on record properly and awarded just and fair amount of -7- NC: 2024:KHC-K:4288 MFA No. 201838 of 2017 compensation, which does not call for any interference by this Court. Hence, prayed for dismissal of the appeal.
12. The following question arises for determination.
"Whether the claimant is entitled for the enhancement of compensation?
13. The fact of accident and injuries sustained by the petitioner in the vehicle accident are not in dispute. The respondents have not filed any appeal against the impugned judgment. Therefore, there is no need to reconsider the same.
14. The records reveal that, the claimant had fracture of right tibia and fibula; He underwent surgery to the said fractures in Kamareddy Hospital and he was admitted in the Kamareddy Hospital from 03.09.2014 to 10.09.2014 vide Ex.P7. As per Ex.P6 claimant had sustained fracture of right tibia, fracture of left temporal bone, EDH of left parietal temporal region. Discharge summary given by Chirayu Hospital at Ex.P8 corroborate -8- NC: 2024:KHC-K:4288 MFA No. 201838 of 2017 the said fact. It also reveals that he was inpatient from 30.08.2014 and he was discharged from the said hospital at his request. X-rays are produced at the time of assessment of disability. The evidence of PWs.2 and 3 also supports the injuries, that was accepted by the Tribunal.
15. According to the petition averments age of the petitioner, at the time of accident was 37 years. However, the Tribunal accepted the age of the petitioner on the basis of medical records as 45. The income of the claimant was taken as Rs.6,000/- per month by the Tribunal though claimant had contended that he was earning Rs.15,000/- per month. The claimant was unable to produce reliable evidence to prove his income, therefore, notional income was assessed by the Tribunal. If same is assessed as per chart prepared by the KSLSA, income of the claimant could be considered as Rs.7,500/- per month and appropriate multiplier applicable is undisputedly as '14'.
16. The main dispute in this case is regarding disability.
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17. The Tribunal by the impugned judgment at page-16 considered that both PWs.2 and 3 are not treated doctors and PW.3 is not even a neurologist to assess the disability regarding head injuries. Considering the same, disability was taken as 12% to the whole body. PW.2 has stated that petitioner has been suffering from certain difficulties due to EDH and fracture of left temporal bone. Similarly PW.2 who is Ortho Surgeon, assessed disability to an extent of 33% to the whole body. The petitioner had sustained fracture of tibia and fibula. Therefore, assessment of 33% to the whole body is on higher side. It could be 10 to 12% to the whole body, considering the treatment taken by the claimant.
18. The claimant is said to be mason and contractor in centering work. Considering the difficulty he has been suffering due to injuries and also considering the evidence of PWs.2 and 3 permanent disability to the whole body could be considered between 18 to 20%. Accordingly, disability is taken as 20% to the whole body. On the basis
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NC: 2024:KHC-K:4288 MFA No. 201838 of 2017 of the above said figures, the compensation under the head loss of future earning capacity due to permanent disability is assessed as Rs.2,52,000/- (Rs.7,500/- x 12 x 14 x 20%).
19. Looking to the treatment taken, etc and other materials available on record, the amount of compensation awarded on other heads by the Tribunal is on the lower side, which needs to be enhanced. Accordingly, the following amount of compensation is awarded:
Sl. Heads Amount Amount
No. awarded by awarded by
the Tribunal this court
1. Pain and suffering Rs.10,000/- Rs.50,000/-
2. Loss of future earning Rs.1,21,000/- Rs.2,52,000/-
capacity due to permanent
disability(7500x12x14x20%)
3. Medical expenses Rs.68,100/- Rs.68,100/-
4. Attendant charges, Rs.6,000/- Rs.25,000/-
conveyance charge, special
diet
5. Loss of income during laid Rs.2,400/- Rs.22,500/-
up period (7500x3)
6. Loss of amenities and Rs.10,000/- Rs.40,000/-
future unhappiness
7. Future medical expenses ---- Rs.20,000/-
Total Rs.2,17,500/- Rs.4,77,600/-
Enhancement Rs.2,60,100/-
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MFA No. 201838 of 2017
20. The claimant is entitled for enhancement of compensation of Rs.2,60,100/- along with interest at the rate of 6% per annum. Accordingly, I answered the above question partly in the affirmative and pass following:
ORDER i. The appeal is allowed in part. ii. The impugned judgment and award passed by the II-Addl. Senior Civil Judge & MACT, Kalaburagi, in MVC.No.694/2015 dated 04.07.2017 is modified;
(a) An amount of Rs.2,60,100/- is enhanced in addition to compensation awarded by the Tribunal with interest at the rate of 6% p.a. on the enhanced amount of compensation from the date of petition till its realization.
iii. Respondent No.3 - insurance company shall deposit the said amount with interest before
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NC: 2024:KHC-K:4288 MFA No. 201838 of 2017 the Tribunal within a period of eight weeks from the date of receipt of a copy of this order.
iv. The orders passed by the Tribunal regarding deposit and release are not disturbed. v. The registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE SDU LIST NO.: 1 SL NO.: 34 CT:PK