Karnataka High Court

Hamza Hussain Shekabba @ Amumsha vs Zainul Abid on 14 December, 2021

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF DECEMBER 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.4495 OF 2017(MV)

BETWEEN:

Hamza Hussain Shekabba @ Amumsha,
S/o Late Shekabba,
Aged about 45 years,
Residing at # 4-109,
Mularpatna, Arala Village,
Bantwal Taluk,
D.K.District-574201.              ... Appellant

(By Sri. Lethif B., Advocate)

AND:

1.     Zainul Abid,
       Aged about 34 years,
       Varatilu House,
       Badga Bellur Village,
       Bantwal Taluk,
       D.K.District-574201.

2.     Chayabba,
       S/o Pakru Beary,
       Aged about 74 years,
       R/at Safan Manzil,
       Batrakere House,
       Post:Permude, Bajpe,
       Mangalore,
       D.K.District-574 201.
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3.   New India Assurance Co. Ltd.,
     Centenary Building,
     2nd Floor, GHS Road,
     Mangalore,
     D.K.District-575103.             ... Respondents

(By Sri. Ashok N Patil, Advocate for R3:
R1 & R2 are served)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:28.03.2017 passed
in MVC No.1440/2015 on the file of MACT and 1st
Additional Senior Civil Judge, Mangaluru, D.K., partly
allowing the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for Admission, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 28.03.2017 passed

by the Motor Accident Claims Tribunal, Mangaluru,

D.K., in MVC No.1440/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.01.2015 at about 6.00

p.m., the claimant was returning from work from

Mallur near Mangaluru along with his relative on a

motorcycle bearing registration No.KA-19/EL-1912 as

a pillion rider. When they reached near Balike at

Badaga Bellur Village, at that time, the Armada jeep

bearing registration No.KA-19/Z-9926 being driven by

its driver at a high speed and in a rash and negligent

manner, dashed to the vehicle of the claimant. As 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 huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent Nos.1

and 3 appeared through counsel and respondent No.3

filed written statement in which the averments made

in the petition were denied. The age, avocation and

income of the claimant and the medical expenses are

denied. Hence, he sought for dismissal of the

petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice 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 himself was

examined as PW-1, Dr.Mahabala Shetty as PW-2,

Dr.Bhaskar Rao as PW-3 and another witness as PW-4

and got exhibited documents namely Ex.P1 to Ex.P18.

On behalf of the respondents, no witness was

examined but got exhibited document namely Ex.R1.

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.4,12,823/- along with

interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing mason work and earning Rs.30,000/- per

month, but the Tribunal has taken the notional income

as only Rs.9,000/- per month.

Secondly, due to the accident the claimant

suffered grievous injuries. His right great toe and

little toe has been amputed. He has examined the

doctor who assessed the physical disability at 30%.

The Tribunal has assessed the whole body disability at

10% and the same is on the lower side.

Thirdly, since there is amputation, it is a

scheduled injury. As per the Workmen's

Compensation Act, the disability for right great toe

has to be taken as 14% and for little toe it is 3% and

also there is a fracture to his hand. Therefore, the

Tribunal instead of assessing the whole body disability

as 30% has erred in considering the whole body

disability as only 10%.

Fourthly, due to the accident the claimant has

suffered grievous injuries, he was inpatient for a

period of 23 days, he has suffered lot of pain during

treatment and he has to suffer the disability and

unhappiness throughout his life. The compensation

awarded by the Tribunal for 'pain and sufferings' and

'attendant charges, food and nourishment' is on the

lower side and the Tribunal has not awarded any

compensation under the head of 'loss of amenities'.

Due to the accident the claimant has undergone

surgery and he has to undergo one more surgery for

removal of implants. He has produced Ex.P14 issued

by the doctor where it shows that the claimant

requires Rs.35,000/- for 'future medical expenses',

but the Tribunal has not considered the same. Hence,

he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, even though the claimant claims that he

was earning Rs.30,000/- per month, he has not

produced any document to establish the same.

Considering the age and avocation of the claimant the

Tribunal has rightly assessed the notional income as

Rs.9,000/- per month.

Secondly, the claimant has examined the doctor

who has deposed that claimant has suffered 30%

physical disability to his right lower limb and the

Tribunal has rightly assessed the whole body disability

at 10% by considering 1/3rd of limb disability.

Thirdly, the amputation of the toe will not effect

his day today work. Therefore, the whole body

disability assessed by the Tribunal is just and

reasonable.

Fourthly, the injuries suffered by the claimant

are minor in nature, he was inpatient for only 23 days.

Considering the evidence of the doctor and

considering the injuries suffered by the claimant the

overall compensation awarded by the Tribunal is just

and reasonable.

Fifthly, even though the claimant has claimed

the he has to undergo further surgery for removal of

implants, he has not produced any document even

before this Court to show that he has undergone any

surgery. The Tribunal has rightly not awarded any

compensation for 'future medical expenses'. Hence,

he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimant has not produced any evidence

with regard to his income. The Tribunal, considering

the age and avocation of the claimant has rightly

assessed the notional income as Rs.9,000/- per

month.

Due to the accident the claimant has suffered

multiple fractures to the right leg and fracture on the

upper thigh and two fingers were broken. He was

inpatient for 23 days. The great toe and little toe has

been amputed and the physical disability of 30% is

assessed to right lower limb. In respect of amputation

is concerned, since it is a schedule injury, as per

Clause 39 Schedule I of the Workmen's Compensation

Act, the disability has to be considered at 14% for

great toe and for little toe 3% disability has to be

considered. Therefore, the whole body disability has

to be assessed as 17%. At the time of the accident

the claimant was aged about 42 years and multiplier

applicable to his age group is '14'. Thus, the claimant

is entitled for compensation of Rs.2,57,040/-

(Rs.9,000*12*14*17%) on account of 'loss of future

income'.

Due to the accident the claimant has suffered

grievous injuries, he was inpatient for a period of 23

days. He has suffered lot of pain during treatment

and he has to suffer the disability and unhappiness

throughout his life. Considering the evidence of the

doctor and injuries suffered by the claimant, I am of

the opinion that the claimant is entitled to Rs.40,000/-

under the head of 'loss of amenities'.

In respect of 'future medical expenses' is

concerned, the claimant has examined the doctor who

has deposed that the claimant requires 35,000/- for

removal of implants. The claimant has not produced

any document before this Court to show that he has

undergone any surgery. Considering the evidence of

the doctor and considering Ex.P14, I am of the opinion

that 'future medical expenses' has to be granted at

Rs.15,000./-.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 60,000 60,000 Medical expenses 1,50,573 1,50,573 Food, nourishment, 15,050 15,050 conveyance and attendant charges Loss of income during 36,000 36,000 laid up period Loss of amenities 0 40,000 Loss of future income 1,51,200 2,57,040 Future medical expenses 0 15,000 Total 4,12,823 5,73,663

The claimant is entitled to a total compensation

of Rs.5,73,663/-.

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 excluding

interest for the compensation awarded under the head

of 'future medical expenses'.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.