Karnataka High Court
Muktarahamed S/O Mohammadsab ... vs Nanasab S/O Pandurang Awatade on 4 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 4 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.100063/2014 (MV)
BETWEEN:
Shri Muktarahame d
S/o Mohammadsab Bichu
Age: 46 ye ars
Occ: Cane Supervisor in S ugar Facto ry,
R/o Kudachi, Tq: Raibag, D ist: Be lgaum
Now at D abadabahatti,T q: A thani
Dist: Be lgaum.
... APPELLANT
(BY SRI.SANJAY S KATAGERI, ADVOCATE)
AND
1. S hri N anasab
S/o Pandurang Awatade
Age: 41 ye ars
Occ: Contractor
R/o Opp: HBC Co lony
Athani
Dist: Be lgaum.
(owner of the Tata T ipper be aring NO KA-23/A-2573)
2. T he Manage r ( Legal Ce ll)
HDFC ERGO Ge neral I nsurance Co mpany Ltd.,
1 s t F loor, HM Gene va, Ho use No .14,
Cunningham road, Bangalore 560 052
... RES PONDENTS
(BY SRI S .K. KAYAKAMATAH, ADVOCATE)
2
THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 28.02.2013 PA SSED IN MVC
NO.1052/2012 ON THE FILE OF THE PRESIDIN G OFF ICER,
FAST TRACT COURT, ATHANI, PART LY ALLOWIN G THE CLAIM
PETITION FOR COMPENSTION AND SEEKING ENHANCEMENT
OF COMPENSATI ON.
THIS APPEAL COM ING ON FOR ORDERS THIS DAY, THE
COURT , D ELIVERED THE F OLLOWING:
JUDGMENT
Heard learned counsel on both sides. Matter is
coming on for orders, with consent, it is taken up for
final disposal.
2. Challenging judgment and award dated
28.02.2013 passed by Presiding Officer, Fast Track
Court, Athani, (for short, 'tribunal') in MVC
No.1052/2012, this appeal is preferred by claimant
seeking enhancement of compensation.
3. Shri Sanjay Katageri, learned counsel for
claimant/appellant submitted that in the accident
occurred on 13.02.2012, claimant - Muktarahmed
sustained grievous injuries when tipper lorry bearing
registration No.KA 23-A-2573 driven by its driver in
rash and negligent manner dashed against motorcycle
resulting claimant sustaining grievous injuries. Despite
taking treatment, he did not recover fully. Claiming
compensation, he filed claim petition under Section
166 of the Motor Vehicles Act, 1988 (hereinafter
referred to as 'MV Act'). It is further submitted that in
the said accident his minor daughter namely Zubia also
sustained injuries and separate claim petition was
filed.
4. On service of notice, respondents i.e., owner-
insurer opposed claim petitions denying negligence of
driver of tipper. Age, occupation, income and disability
sustained by claimant were also denied. Claim petition
was also opposed being excessive. Though issuance of
insurance policy was admitted, breach of terms and
conditions was alleged. Contributory negligence against
claimant was also alleged.
5. Based on pleadings, tribunal framed issues
and additional issue. As both claim petitions arose out
of same accident, common evidence was recorded.
Claimant was examined as PW1. He examined Dr. Ravi
Parappa Chougala as PW2. Exhibits P1 to P20 were
marked. On behalf of respondent, no oral evidence was
adduced, but copies of x-ray report, insurance policy
and copy of driving licence were marked as Exhibits R1
to R.3.
6. On consideration, tribunal answered issue no.1
and additional issue no.1 partly in affirmative and
partly in negative; issue no.2 and 3 partly in
affirmative; issue No.4 by allowing claim petition in
part, awarding compensation of Rs.1,46,000/- with
interest at 6% per annum and respondents no.1 and 2
are liable to pay same jointly and severally. Not
satisfied with quantum of compensation, claimant is in
appeal. It was submitted that claimant was aged about
45 years, working as supervisor in Sugar factory on
monthly salary of Rs.30,000/-. However, tribunal
considered monthly income at meager sum of
Rs.5,000/-. It was further submitted that claimant
sustained fracture of left tibial condyler and also inter-
condyler communited fracture and disability assessed
by PW2 to an extent of 24% to left lower limb, but
tribunal considered meager functional disability at 8%.
It was also submitted that award of Rs.30,000/-
towards 'pain and suffering' and Rs.15,000/- towards
'loss of earning during laid up period' were inadequate.
7. On the other hand, learned counsel Sri S.K.
Kayakamath, for respondent no.2 - insurer supported
award and opposed enhancement. It was submitted
that after accident claimant continued to work as
supervisor and therefore, there was no 'loss of earning
capacity' and on over all consideration, compensation
awarded was just and proper.
8. From the above submission, occurrence of
accident due to rash and negligent driving of insured
vehicle by its driver and claimant sustained injuries in
the said accident is not in dispute. Tribunal held that
insurer is liable to pay compensation. Insurer has not
preferred any appeal. Only claimant is in appeal
seeking enhancement. Therefore, point that arises for
consideration are:
"Whether claimant is entitled for
enhancement of compensation as sought
for?"
9. In order to establish age, occupation, income
and disability, claimant has produced wound certificate,
discharge certificate, hospital bill, medical bill,
prescription, X-ray films, certificate issued by Chougala
hospital Athani, copy of wound certificate,
admission/discharge certificate, hospital bills, medical
bills, prescription and x-ray film marked at Exs.P.6 to
P.20 respectively.
10. From wound certificate and discharge
certificate, it is established that claimant sustained
fracture of left tibial/fibula, intercondyler comminuted
fracture. Apart from producing treatment records,
claimant also examined Dr. Ravi Parappa Chougala,
Orthopedic surgeon as P.W.2. Doctor has deposed about
examining claimant for assessment of physical
disability. He stated that there was shortening of left
leg by 1cm; there was loss of degree of flexion at left
knee by 10 degrees and there was no wasting of left
calf muscle. Based on same, he assessed limb disability
at 24%. Disability sustained is to lower limb.
Supervisor in Sugar factory is enquired to do field work
also, therefore, physical disability sustained would
affect career prospects if not earning capacity directly.
Consideration of 8% functional disability i.e., 1/3 of
limb disability would not be justified or proper in the
facts and circumstances of case.
It would be appropriate to assess same at 10%.
Accident is of the year 2012. Claimant stated his
monthly income was Rs.30,000/-. There is no evidence
led to establish same. In the absence of evidence,
tribunal would be justified in taking monthly income on
notional basis. Notional income for the year 2012 was
Rs.6,500/-. Therefore, tribunal would not be justified in
taking Rs.5,000/-. As claimant was aged 45 years,
multiplier applicable would be '14'. Hence,
compensation towards 'future loss of income' would be
Rs.6,500 X 10 X 12 X14= Rs.1,09,200/-.
11. As claimant sustained two fractures, award of
Rs.30,000/- towards 'pain and suffering' would be
inadequate. It would be appropriate to award a sum of
Rs.45,000/- instead. Claimant produced medical bills
for Rs.32,162/-. Tribunal has awarded a sum of
Rs.45,000/- towards complete reimbursement. Hence,
there is no claim for enhancement.
Tribunal awarded Rs.15,000/- towards 'loss of
income during laid up period', which is for three
months. As monthly income was re-determined at
Rs.6,500/-, loss of income during laid up period' would
have to be re-assessed at Rs.19,500/. Tribunal awarded
Rs.25,000/- towards 'loss of amenities'. Considering
small extent of functional disability, award appears to
be just and proper. Hence, claimant would be entitled
to total compensation of Rs.2,43,700/-. Point for
consideration is answered partly in affirmative as
above.
12. Accordingly, I pass following:
ORDER
i. Appeal is allowed in part. Compensation
is enhanced to Rs.2,43,700/-. The
enhanced compensation shall carry
interest at 6% per annum from date of
claim petition till deposit.
ii. Entire award amount is ordered to be
released in favour of claimant on proper
identification.
iii. Insurer is directed to deposit
compensation amount within six weeks
from date of receipt of certified copy of
this order.
In view of disposal of appeal, pending I.A. for
transfer of trial Court records be transferred
forthwith to concerned Tribunal.
Sd/-
JUDGE
Ps g *
