Karnataka High Court
Nawaz S/O Khadirmiyya Syed vs Mohd. Tayyab And Anr on 28 June, 2024
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NC: 2024:KHC-K:4408
MFA No. 202198 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 202198 OF 2017 (MV-I)
BETWEEN:
NAWAZ
S/O KHADIRMIYYA SYED
AGE: 37 YEARS,
OCC: LORRY MECHANIC NOW NIL,
R/O. SHAHPUR GALLI,
TQ. BASAVAKALYAN,
DIST. BIDAR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
Digitally signed by
SHIVALEELA
DATTATRAYA UDAGI
AND:
Location: HIGH
COURT OF
KARNATAKA 1. MOHD. TAYYAB
S/O MOHD. IBRAHIM SAB RATKAWALE,
AGE: 37 YEARS, OCC: DRIVER CUM
OWNER OF INDICA CAR BEARING
NO.MH-12/AX-7328,
R/O. ZINATAT SOCIETY,
NANDED ROAD, LATUR,
DIST. LATUR,
MAHARASHTRA-413510.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
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NC: 2024:KHC-K:4408
MFA No. 202198 of 2017
DR. JAWALI COMPLEX,
SUPER MARKET,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R2;
VIDE ORDER DATED 18.03.2021, NOTICE TO R1 D/W)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND
AWARD DATED 13.03.2017 PASSED BY THE IIND ADDITIONAL
DISTRICT AND SESSIONS COURT AND ADDITIONAL MACT
BIDAR, SITTING AT BASAVAKALAYAN, IN MVC NO.670/2015
AND ENHANCE THE COMPENSATION AMOUNT WITH COST.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is claimant's appeal for enhancement of compensation awarded by the II-Addl. Dist. & Sessions Judge and Addl. MACT, Bidar sitting at Basavakalyan, (hereinafter referred to as 'the Tribunal' for short) in MVC No.670/2015 dated 13.03.2017.
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NC: 2024:KHC-K:4408 MFA No. 202198 of 2017
2. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal.
3. Brief facts of the case are that on 30.06.2015 at 8:00 p.m. petitioner was going on his motorcycle bearing Reg.No.KA-56/E-4793, along with one Hameed as pillion rider. Near Anubhava Mantap cross on Basavakalyan- Sastapur road, they met with an accident due to rash and negligent driving of the Car bearing Reg.No.MH-12/AX- 7328 by its driver. As a result of which, claimant had sustained head injuries and other injuries.
4. It is further case of the claimant that he was aged about 35 years at the time of the accident; he was mechanic and earning Rs.30,000/- 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 has prayed to award compensation of Rs.21,00,000/-.
5. Respondent/insurer denied contents of the claim petition and further contended that its liability is -4- NC: 2024:KHC-K:4408 MFA No. 202198 of 2017 restricted to the terms and conditions of the policy of insurance and holding of valid licence by the driver of the Car. Hence, prayed for dismissal of the claim petition.
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 and 2 and got marked Exs.P1 to 18 and closed his evidence. Respondents have not led any evidence.
8. After hearing both the parties and appreciating the evidence available on record, the Tribunal by impugned judgment, awarded the following amount of compensation.
Sl. Particulars Amount
No.
1. Pain and sufferings Rs.25,000/-
2. Loss of life amenities and Rs.20,000/-
pleasure
3. Medical attendant charges, food Rs.20,000/-
and nutrition charges and
transportation charges
4. Loss of income during laid up Rs.22,500/-
period (Rs.7,500x3)
5. Loss of future income Rs.2,88,000/-
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NC: 2024:KHC-K:4408
MFA No. 202198 of 2017
(Rs.90,000x16x20/100)
6. Medical expenses Rs.3,15,000/-
Total Rs.6,90,500/-
9. Heard arguments of learned counsel for the appellant and respondent No.2.
10. The learned counsel for the appellant submits that amount of compensation awarded by the Tribunal is on the lower side. The income was not assessed properly and the assessment of disability is also not proper. Therefore, prayed for enhancement of compensation.
11. The learned counsel for respondent No.2 supported the impugned judgment and submitted that there are no grounds to interfere with the findings of the Tribunal. Hence, prayed for dismissal of the appeal.
12. The following question arises for determination.
"Whether the claimant is entitled for the enhancement of compensation? -6-
NC: 2024:KHC-K:4408 MFA No. 202198 of 2017
13. The fact of accident and injury to the claimant in vehicle accident is not seriously disputed. The respondent-insurer had not challenged the finding of the Tribunal. There is no need to reconsider the same.
14. Ex.P12/discharge summary reveals that claimant had sustained injuries as - Abrasions over nose, lateral aspect of left eye, right hand and both knee; multiple small hemorrhagic contusion in left basal gangilia, left lateral thalamus, left cerebral peduncle and posterior part of body and spelenium of corpus callosum F/S/o diffuse axonal injury, diffuse cerebral edema (Ex.P12), MRI brain.
15. In Ex.P13 deformities are stated as follows:
1) loss of power in r-side upper and lower limbs;
2) unable to lift weight, hold the object or do any work with r-hand;
3) unable to walk or balance properly due to weakness in r-lower limb;-7-
NC: 2024:KHC-K:4408 MFA No. 202198 of 2017
4) swelling of r-side of face giving deformed look;
5) salivation from r-side, unable to close the rt- eye properly;
6) loss of smell sensation and taste sensation;
7) speech is not clear, loss of immediate past events and amnesia of accident.
16. The claimant was admitted as inpatient from 01.07.2015 to 05.08.2015 nearly more than a month. Ex.P12 shows that multiple small hemorrhagic contusion in left basal gangilia, left lateral thalamus, left cerebral peduncle and posterior part of body and splenium of corpus callosum, and diffuse cerebral edema.
17. As per the evidence of PW.2 and Ex.P13 patient has been suffering from permanent disability to an extent of 58% to the entire body. Scanning report is also produced at Ex.P18. All these documents reveal about severity of the injury. Looking to the said injuries, disability has been stated by PW.2 in Ex.P13 the amount -8- NC: 2024:KHC-K:4408 MFA No. 202198 of 2017 of compensation awarded on all other heads are on lower side.
18. The Tribunal had taken disability to an extent of 20% to the whole body, though the PW.2 has given disability as 58% to the whole body. Therefore, the said disability assessed by the Tribunal is on the lower side, which needs to be enhanced. Looking to the opinion given by PW.2 in Ex.P13, injuries and its consequences permanent disability affecting earning capacity is taken as 25% to the whole body.
19. The Tribunal has taken notional income as Rs.7,500/- though the claimant has contended that he was earning Rs.30,000/- per month and Rs.100/- per day as batta. The accident had taken place during the year 2015, as per the chart prepared by the KSLSA, income could be taken as Rs.8,000/- per month. The age of the claimant as assessed by the Tribunal is 35 years. Hence, multiplier applicable is '16'. On the basis of the same, the amount of compensation under the head loss of future earning -9- NC: 2024:KHC-K:4408 MFA No. 202198 of 2017 capacity due to permanent disability is re-calculated as Rs.3,84,000/- (Rs.8,000/- x 12 x 16 x 25%).
20. Considering the materials available on record and consequence of injuries sustained by the claimant, the following amount of compensation is awarded as under:
Sl. Heads Amount Amount
No. awarded by awarded by
the Tribunal this court
1. Pain and suffering Rs.25,000/- Rs.50,000/-
2. Medical expenses Rs.3,15,000/- Rs.3,15,000/-
3. Attendant charges, special Rs.20,000/- Rs.50,000/-
diet, conveyance charges
etc.
4. Loss of future earning Rs.2,88,000/- Rs.3,84,000/-
capacity due to permanent
disability
(8000x12x16x25%)
5. Loss of income during laid Rs.22,500/- Rs.48,000/-
up period (8000x6)
6. Loss of amenities and Rs.20,000/- Rs.1,00,000/-
future unhappiness due to
loss of hearing and loss of
smell assessment and also
difficulty in speech
Total Rs.6,90,500/- Rs.9,47,000/-
Enhancement Rs.2,56,500/-
21. The claimant is entitled for enhancement of compensation of Rs.2,56,500/- along with interest at the rate of 6% per annum from the date of petition till its
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NC: 2024:KHC-K:4408 MFA No. 202198 of 2017 realization. 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. Dist. & Sessions Judge & Addl. MACT, Bidar, sitting at Basavakalyan, in MVC No.670/2015 dated 13.03.2017 is modified;
(a) Claimant is entitled for enhancement of Rs.2,56,500/- 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.2 - insurance company shall deposit the said amount with interest before the Tribunal within a period of eight weeks
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NC: 2024:KHC-K:4408 MFA No. 202198 of 2017 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.: 36 CT:PK