Karnataka High Court
Naganth S/O Dhulappa Dhummansure vs Babu Farid S/O Mohd. Siddqiui And ... on 16 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.31725/2013 (MV)
BETWEEN
NAGANATH S/O DHULAPPA DHUMMANSURE
AGE: 32 YEARS, OCC: AGIRUCLATUR & MILK
VENDING R/O GHATBORAL TQ. HUMNABAD
DIST. BIDAR NOW R/AT HIREMATH COLONY
BASAVAKALYAN,
DIST.BIDAR-585401.
...Appellant
(BY SRI BABU H. METAGUDDA, ADVOCATE)
AND
1. BABU FARID S/O MOHD. SIDDQIUI
AGE: MAJOR, OCC. BUSINESS,
R/O MAHABOOB NAGAR BASAVAKALYAN
DIST. BIDAR-585401.
2. KHALEEL MIYAN S/O ABDUL RAHEEM
AGE: MAJOR, OCC. BUSINESS & OWNR OF
VEHICLE R/O H. NO. 557, BASAVAKALYAN
DIST. BIDAR-585401.
3. THE DIVISIONAL MANAGER, UNITED INDIA
INSURANCE CO.LTD., DR. JAWALI COMPLEX,
SUEPR MARKET
GULBARGA-585101.
2
...RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE
NOTICE TO R1 & R2 IS DISPENSED WITH)
THIS MFA FILED U/S. 173(1) OF MV ACT, PRYAING TO
CALL FOR THE RECORDS IN MVC. NO.31/11 ON THE FILE
OF THE FAST TRACK COURT AT-BASAVAKALYAN DIST,
BIDAR, ALLOW THIS APPEAL AND MODIFY THE JUDGMENT
AND AWARD DATED 21.08.2012 PASSED IN MVC
NO.31/2011 BY THE FAST TRACK COURT AT
BASAVAKALYAN DIST-BIDAR. AND ENHANCING THE
COMPENSATION FROM RS.2,00,400/- WITH 6% INTEREST
TO RS.9,00,000/- WITH 12% INTEREST AND ETC.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, 1988 (for short 'M. V. Act') by the claimant
against the judgment and award dated 21.08.2012 passed
in MVC No.30/2011 on the file of the Fast Track Court,
Basavakalyan, Bidar district (for short 'Tribunal').
2. Brief facts leading up to filing of the present
appeal are that, on 20.09.2010 at about 10.00 p.m. one
Santosh and Nagnath, the claimant herein - were
proceeding towards Basavakalyan on their Hero Honda
motorcycle bearing registration No.KA-39/J-3572. At that
time, an auto bearing registration No.KA39/2196 came
from opposite direction and dashed to the claimant's bike.
Due to the impact, the claimant fell down and sustained
grievous injuries in the nature of fracture of his tibia and
fibula and femur.
3. Thereupon, the claimant filed a claim petition
under Section 166 of the M. V. Act claiming compensation
of `9,00,000/- on the premise that he was aged about 30
years and was hale and healthy earning `5,00,000/- per
annum from his agricultural activities and due to the
accidental injuries, he is not able to earn his livelihood.
4. Upon service of notice, respondent Nos.1 and 2
did not appear and were placed exparte. Respondent No.3
- insurance company filed its written statement denying
the age, income and occupation of and also nature of
injuries sustained by the claimant. It was contended that
the accident in question had occurred on account of the
contributory negligence on the part of the rider of the bike.
Hence, sought for dismissal of the claim petition.
5. It is seen that the rider of the motorcycle
namely, Santosh has also filed MVC No.30/2021 and the
Tribunal has taken up both the matters for common trial
and disposed off by a common judgment.
6. Based on the pleadings, the Tribunal framed
issues and recorded evidence. The claimant examined
himself as PW.1 and exhibited 107 documents as Ex.P1 to
Ex.P107. No witness has been examined on behalf of the
respondents except marking the policy of insurance as
Ex.R1.
7. On evaluation of the evidence, the Tribunal
held that the accident in question had occurred due to the
negligent act on the part of the driver of the auto.
Consequently, held that the claimant is entitled for total
compensation of `2,00,400/- together with interest at 6%
per annum from the date of petition till its realization and
directed the respondent No.3 - insurance company to pay
the aforesaid compensation. Aggrieved by the same, the
appellant/claimant is before this Court seeking
enhancement of the compensation.
8. Heard the learned counsel for the
appellant/claimant and the learned counsel for the
respondent No.3 - insurance company.
9. The learned counsel for the appellant/claimant
reiterating the grounds urged in the appeal memorandum
submitted that the claimant was earning `5,00,000/- per
annum by doing agricultural activities, however, the
Tribunal has erred in assessing the income of the claimant
only at `6,000/- per month, which is on the lower side. He
submits that the Tribunal has committed an error in
calculating the compensation, since, the claimant has
produced Exs.P5 to P30 being the medical bills for
Rs.73,587/-, the Tribunal while calculating the same has
taken only Rs.20,000/-. Drawing the attention of this
Court to paragraph No.21 of the impugned judgment, he
submits that even though the Tribunal has held that
claimant being entitled for Rs.40,000/- towards medical
bills, but yet, while calculating it has taken only
Rs.20,000/-. He submits that the award of compensation
on the other heads is also on the lower side. He also
submits that as per disability certificate - Ex.P4, the
claimant having suffered 27% of disability to the whole
body, the Tribunal has assessed the same at 10%, which is
on the lower side. Therefore, he seeks for allowing of the
appeal by enhancing the compensation.
10. On the other hand, the learned counsel for
respondent No.3 - Insurance Company justifying the
judgment and order passed by the Tribunal submits that in
the absence of any acceptable material evidence with
regard to the income of the claimant, the assessment of
income made by the Tribunal is just and proper and does
not warrant any interference. He further submits that the
disability assessed by the Tribunal is based on the records
furnished by the claimant and same is just and proper
warranting no interference. Hence, seeks for dismissal of
the appeal.
11. On consideration of the submissions made by
the learned counsel for the parties, the only point that
arises for consideration is:
"Whether the claimant has made out a
case for enhancement of compensation?"
12. The accident in question and injuries suffered
by the claimant are not in dispute. As per Ex.P3, wound
certificate, the claimant has suffered the fracture of right
tibia and fibula, fracture of femur and abrasion over right
knee. The disability certificate at Ex.P4 referring to the
aforesaid injuries as seen in the wound certificate at Ex.P3
suggests that the doctor has assessed the disability at
67% to a particular limb.
13. Through the claimant has claimed to have
been earning Rs.5,00,000/- per annum, no evidence is
produced. Taking into consideration the fact that this
Court, in the absence of evidence regarding actual income,
has been relying upon the chart prepared by the Karnataka
State Legal Services Authority, the assessment of income
at Rs.6,000/- by the Tribunal is just and proper warranting
no interference. However, considering the nature of
injuries which are fractural injuries and the disability
certificate issued by the doctor, the assessment of
disability at 10% made by the Tribunal is enhanced to
20%. Claimant was aged about 30 years at the time of
the accident. Therefore, the proper multiplier applicable to
the case is '17'. Thus, the loss of future income of the
claimant comes to `2,44,800/- (`6,000x12x17x20%).
14. The Tribunal has awarded `40,000/- towards
pain and suffering. An additional sum of Rs.20,000/- is
awarded by making it to Rs.60,000/-.
15. As noted above, the Tribunal referring to the
medical bills at Exs.P5 to P30 for a sum of Rs.75,583/-has
accepted the same at Rs.40,000/-. However, at paragraph
No.26 of its judgment, the Tribunal has taken only
Rs.20,000/-. Hence, the claimant is entitled for addition of
Rs.20,000/- making it Rs.40,000/- towards medical bills.
16. Tribunal has awarded `6,000/- under the head
of attendant, nourishment and special diet. The same
requires to be enhanced to `10,000/- by adding `4,000/-
thereof.
17. The Tribunal has not awarded compensation
towards loss of amenities. Considering the nature of
injuries suffered by the claimant, a sum of Rs.25,000/- is
awarded under the said head.
18. The Tribunal has awarded Rs.12,000/- towards
loss of income during laid up period. Considering the
nature of injuries, the claimant must have been advised for
treatment and rest for a period of three months.
Therefore, the same is enhanced to Rs.18,000/-.
Therefore, the compensation awarded by the Tribunal
deserves to be re-determined and re-calculated as follows:
Heads By Tribunal By this Court
Pain and suffering `40,000/- `60,000/-
Loss of income `1,22,400/- `2,44,800/-
due to disability
Loss of amenities - `25,000/-
Loss of earning `12,000/- `18,000/-
during treatment
period
Medical expenses `20,000/- `40,000/-
Attendant, `6,000/- `10,000/-
nourishment and
conveyance
charges.
Total `2,00,400/- `3,97,800/-
19. Thus, the claimant is entitled for enhanced
compensation of `3,97,800/- instead of `2,00,400/-
awarded by the Tribunal together with interest at 6% per
annum from the date of petition till its realization. Hence,
the point raised above is answered accordingly and
following:
ORDER
(i) The appeal filed by the appellant -
claimant is partly allowed.
(ii) The judgment and award of the Tribunal
in MVC.No.30/2011 dated 21.08.2012 is
modified.
(iii) The claimant is held entitled for
enhanced compensation of `3,97,800/- instead
of `2,00,400/- awarded by the Tribunal
together interest at the rate of 6% p.a. from
the date of claim petition till its payment.
(iv) The respondent No.3 is liable to pay the
compensation within a period of two months
from the date of receipt of a certified copy of
this judgment.
(v) The order regarding deposit and release
made by the Tribunal shall remain unaltered.
Sd/-
JUDGE
Srt
