Shri. Bhimappa Nirwani Talawar vs Shri. Kashim Gulab Multani
2021 Latest Caselaw 5821 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 9 T H DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


              M.F.A.No.24884/2010 (MV)

BETWEEN:

SHRI. BHIMAPPA N IRWANI TALAWAR,
AGE: 49 YEARS , OCC: N OW NIL,
R/O INGA LAGI , pin-591242,
TALUK: HUKKERI, DISTRICT: BELA GAVI.
                                             ... APPELLANT
(BY SMT.S.P.PATIL, ADV OCATE)

AND

1 .   SHRI. KAS HIM GULAB MULTANI ,
      AGE: 43 YEARS , OCC: BUSINESS ,
      R/O INGA LI, PIN- 591242,
      TALUK: HUKKERI, DISTRICT: BELA GAVI.

2 .   THE DIVISIONAL MANAGER,
      THE NEW INDIA A SSURANCE COM PA NY LTD.,
      DIVISIONAL OFFICE, BELA GAVI.
      REPRES ENTED BY THE DIVISIONAL MANAGER,
      DIVISIONAL OFFICE, BELA GAVI-590001.
                                        ... RES PONDENTS
(BY SRI.SIDDA PPA SAJJAN, ADVOCATE FOR
 SRI. K.S .PATIL A DVOCATE FOR R1;
 SRI. RAJASHEKAR S.ARANI , ADV OCA TE FOR R2)

     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING TO
ALLOW THE APPEA L BY SETTING ASI DE THE JUD GMENT AND
AWARD DATED 17.08.2010 IN MVC No.151/2006 PASS ED BY
THE PRESIDING OFFICER, FAST TRACK COURT AND
                                   2




ADDITIONAL M.A.C.T., HUKKERI TO THE EXTENT OF
DISALLOWED CLAI M AND ENHANCE THE COMPENSATI ON TO
THE TUNE OF RS .3,00,000/- , IN THE INTEREST OF JUSTICE
AND EQUITY.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:

                             JUDGMENT

Challenging the judgment and award dated

17.08.2010 passed by Presiding Officer, Fast Track

Court and Addl.M.A.C.T., Hukkeri (for short, 'tribunal')

in MVC No.151/2006, this appeal is filed by the

claimant seeking for enhancement of compensation.

2. Smt. S.P.Patil, learned counsel for appellant-

claimant submitted that in an accident that occurred on

21.08.2005, claimant traveling in Mahindra Jeep

bearing registration no.CTB-3303 sustained grievous

injuries when it met with an accident on Sultanpur-

Ingalagi road due to rash and negligent driving by its

driver. Despite taking treatment, he sustained physical

disability. It was submitted that as on date of accident,

he was a 45 year old agriculturist earning

Rs.2,00,000/- per annum from agriculture and

Rs.3,500/- per month from milk vending who sustained

communited fracture of left calcaneum assessed by

PW2-Dr.R.B.Patagundi at 35% disability. However,

tribunal by taking meager monthly income of

Rs.3,000/- and assessing functional disability at only

5% awarded grossly inadequate compensation of

Rs.44,000/-. Learned counsel submitted that though

claimant sustained communited fracture, tribunal

awarded meager amount of Rs.8,000/- towards pain

and suffering, no compensation was awarded towards

loss of income during laid up period. Tribunal did not

award compensation towards loss of amenities

separately and awarded meager amount of Rs.25,200/-

towards future loss of income and towards loss of

amenities. Tribunal also held that as claimant was

gratuitous passenger in goods vehicle, insurer was

liable to pay compensation to claimant and recover it

from the owner of vehicle.

3. On the other hand, Sri Rajashekhar S.Arani,

learned counsel for respondent no.2-insurer and Sri

Siddappa Sajjan, advocate appearing for Sri K.S.Patil,

learned counsel for respondent no.1 supported the

award and opposed enhancement.

4. From above submission, occurrence of

accident involving insured vehicle due to rash and

negligent by its driver and claimant sustaining grevious

injuries therein and liability of insurer to pay

compensation to claimant are not in dispute. Tribunal

determined age of claimant as 45 years and occupation

as agriculturist which are also not in dispute. Claimant

is seeking enhancement of compensation insofar as

monthly income, extent of functional disability and

award towards pain and suffering, loss of amenities

and laid up period. Therefore, point that arises for

consideration in this appeal is:

      "Whether            claimant                is      entitled         for
      enhancement               of    compensation           as        sought
      for?"

5. In order to establish injury and disability,

claimant produced wound certificates-Exs.P4 and P5,

disability summary, hospital bills as Exs.P8 and P9 and

disability certificate and x-ray films as Exs.P24 and

P25 respectively. Claimant examined doctor, who

issued disability certificate as PW2. From Exs.P4 and

P5, it is established that claimant sustained

communited fracture of left calcaneum, tribunal

awarded a sum of Rs.8,000/- towards pain and

suffering. Since it is communited fracture of left

calcaneum, which is major fracture, award of

Rs.8,000/- would be inadequate. It would be

appropriate to award Rs.30,000/-. Tribunal has

awarded Rs.9,000/- towards medical expenses in

complete reimbursement of medical bills. Rs.1,800/-

towards food, nourishment, attendant and other

incidental expenses. Claimant has taken treatment for

11 days in two different hospitals. Therefore, it would

be appropriate to award sum of Rs.5,000/- under this

head instead of Rs.1,800/- awarded by tribunal.

Claimant's annual earning was asserted to be

Rs.2,00,000/- from agriculture apart from Rs.3,500/-

per month from milk vending. But there is no evidence

to substantiate the same. Therefore, tribunal was

justified in assessing it on notional basis. But notional

income for the year 2005 is Rs.3,500/- as per norms

adopted by Karnataka State Legal Services Authority

for settlement of cases before Lok Adalath. Therefore,

tribunal would not be justified in taking it at

Rs.3,000/-. PW3 who issued disability certificate as per

Ex.P24 deposed that claimant sustained 35% disability

in respect of 'affected part'. It is not in respect of limb

or whole body. Considering occupation of claimant as

agriculturist, assessment of functional disability by

tribunal at 5% would be adequate. Therefore, there is

no scope for interference in that regard. Age of

claimant is 45 years, multiplier applicable would be

'14'. Thus, future loss of income would be Rs.3,500 x

5% x 12 x 14 = Rs.29,400/-.

6. Tribunal has not awarded compensation

towards loss of amenities separately. Taking note of

fracture, claimant is awarded a sum of Rs.15,000/-

towards loss of amenities. Since claimant sustained

fracture, he would have lost income for atleast two

months during period of treatment and recuperation.

Therefore, it is just and proper to award a sum of

Rs.7,000/- towards loss of income during laid up

period. Thus, claimant would be entitled to a total

compensation of Rs.95,400/- as against Rs.44,000/-

awarded by tribunal. Point for consideration is

answered partly in affirmative.

7. In the result, I pass the following:

ORDER

i. Appeal is allowed in part.

ii. Claimant is held entitled for reassessed compensation of Rs.95,400/- as against Rs.44,000/- awarded by tribunal.

iii. Claimant would be entitled to interest at 6% per annum on enhanced compensation also.

iv. Insurer is directed to deposit enhanced compensation within six weeks from date of receipt of certified copy of this order. After paying same to claimant, respondent no.2- insurer would be at liberty to recover same from insured.

Sd/-

JUDGE

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