Karnataka High Court

Sri. Sohel Pasha vs Sri. Wajid Khan on 1 June, 2021

Author: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 1ST DAY OF JUNE, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.9256/2013 (MV)

BETWEEN:

SRI SOHEL PASHA,
S/O ABDUL JABBAR,
AGE: 27 YEARS,
OCC:NIL, R/O NO.1040,
VIJINAPURA MASJID ROAD,
1ST CROSS, BENGALURU-560016.                      ... APPELLANT

             (BY SRI SURESH M. LATUR, ADVOCATE)

AND:

1.     SRI WAJID KHAN,
       S/O SRI DASTHAGIR KHAN,
       R/O HADIGIRI VILLAGE,
       ANOOR POST, CHINTHAMANI TALUK,
       CHIKKABALLAPUR DISTRICT-563125.

2.     THE MANAGER,
       CHOLAMANDALAM GENERAL
       INSURANCE CO. LTD.,
       NO.135/5, 15TH CROSS,
       J.P. NAGAR, III PHASE,
       BENGALURU-560078.                    ... RESPONDENTS

           (BY SRI H.S. LINGARAJ, ADVOCATE FOR R-2;
         NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
                       DATED 23.09.2015)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.07.2013 PASSED
IN MVC.NO.3453/2011 ON THE FILE OF THE VI ADDITIONAL SMALL
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CAUSES JUDGE AND XXXI ACMM, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH VIDEO
CONFERENCE THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed by the claimant challenging the

judgment and award dated 05.07.2013 passed in

M.V.C.No.3453/2011 on the file of the VI Additional Judge and

MACT, Bengaluru-SCCH-2 ('the Tribunal' for short), questioning

the quantum of compensation.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid the confusion and for the

convenience of the Court.

4. The factual matrix of the case is that the petitioner

had sustained grievous injuries in a road traffic accident that

took place on 27.03.2011 at about 10.30 a.m. on

Katamachanahalli gate, Chinthamani on account of rash and

negligent driving of Tata Ace bearing registration No.KA-40-

6553. The claimant in the claim petition has contended that on

account of the accident he has suffered the fracture of right

femur and sustained permanent disability and he was subjected

to open reduction internal fixation to his right leg and he was

earning Rs.7,500/- per month. The Insurance Company denied

the averments made in the claim petition and also disputed the

accident and liability and denied the income and nature of

injuries. The claimant in support of his claim examined himself

as P.W.1 and also examined the doctor as P.W.2 and one more

witness as P.W.3 and got marked the documents at Exs.P.1 to

16. The respondents have not led any evidence. The Tribunal

after considering both oral and documentary evidence placed on

record, awarded compensation of Rs.1,99,340/- under different

heads. Hence the present appeal is filed before this Court.

5. The main contention of the learned counsel for the

appellant in the appeal is that the Tribunal has committed an

error in taking the income as Rs.4,500/- per month and it was

the accident of the year 2011. In the absence of any

documentary proof, the Tribunal ought to have considered the

notional income. The Tribunal also committed an error in taking

the disability of 8% as the fracture was not united and he has

suffered fracture of right femur middle 1/3rd and other grievous

injuries. The Tribunal committed an error in awarding only

Rs.5,000/- under the head loss of amenities and failed to award

just and reasonable compensation with regard to the loss of

income during the laid up period. The Tribunal has awarded only

an amount of Rs.10,000/- under the head future medical

expenses. The learned counsel would contend that only an

amount of Rs.40,000/- was awarded under the head pain and

suffering and hence it requires interference of this Court to

award just and reasonable compensation.

6. Per contra, the learned counsel for respondent No.2

Insurance Company would contend that the Tribunal has rightly

awarded an amount of Rs.40,000/- under the head pain and

suffering. The learned counsel would contend that the Tribunal

has committed an error in awarding higher compensation under

the head conveyance taking the income as Rs.1,200/- per day.

The learned counsel would contend that the Tribunal has taken

the income of Rs.4,500/- per month and rightly awarded

compensation for the laid up period and also future loss of

income. However, the learned counsel concedes with regard to

awarding of Rs.5,000/- under the head loss of amenities and it

requires enhancement.

7. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for respondent No.2,

the point that arise for the consideration of this Court is:

(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

8. Having heard the arguments of the respective

learned counsel and also on perusal of the records, the dispute is

only with regard to the quantum of compensation. Having

perused the records, it is not in dispute that the claimant has

suffered fracture of right femur middle 1/3rd and he was

subjected to open reduction internal fixation to his right leg. On

perusal of the records, it is clear that the fracture of right femur

is not united. In support of his claim, the claimant also

examined the doctor P.W.2 who has deposed disability to the

extent of 42.8% to the right lower limb and 21% to the whole

body. Having considered the material available on record and

the nature of injuries, I do not find any reason to interfere with

regard to awarding of compensation under the head pain and

suffering which has been awarded as Rs.40,000/-.

9. The Tribunal awarded an amount of Rs.57,400/-

under the head medical expenses, attendant, food, diet,

nourishment, conveyance and the other incidental expenses.

The same may be considered individually and considering the

medical bills to the tune of Rs.24,940/-, an amount of

Rs.25,000/- is awarded under the head medical expenses.

10. However, the Tribunal has committed an error in

taking the amount of Rs.1,200/- per day towards conveyance

and other incidental expenses for a period of 27 days. The

injured was an inpatient for a period of 5 days and he also took

physiotherapy treatment. Having taken note of the same, the

claimant is entitled for Rs.10,000/- under the head conveyance,

attendant charges and other incidental expenses.

11. The Tribunal has committed an error in awarding

Rs.10,000/- under the head future medical expenses and the

fact is that the fracture is not united and it requires correction by

conducting future surgery. When such being the case, it is

appropriate to award an amount of Rs.25,000/- under the head

future medical expenses.

12. The Tribunal while assessing loss of income during

laid up period, took the income as Rs.4,500/- per month and it is

an accident of the year 2011 and in 2011, the notional income

would be Rs.6,500/- per month and the Tribunal committed an

error in taking the income of Rs.4,500/- per month. Considering

the nature of fracture, it requires four months for uniting of

fracture and for rest. Hence, four months is considered as laid

up period. Taking the income of Rs.6,500/- per month and laid

up period as four months, an amount of Rs.26,000/- (Rs.6,500/-

x 4) is awarded under the head loss of income for laid up period.

13. The Tribunal while awarding compensation under the

head future loss of income on account of permanent disability,

took disability of 8% and the fact is that the fracture was not

united as is evident from the evidence of doctor P.W.2. When

such being the case, the Tribunal ought to have taken disability

of 15%, since the fracture is not united. Taking the income of

Rs.6,500/- per month and taking the relevant multiplier of '17',

the loss of future income comes to Rs.1,98,900/- (Rs.6,500/- x

12 x 17 x 15%).

14. The Tribunal awarded an amount of Rs.5,000/-

under the head loss of amenities. The claimant is aged about 26

years and he has to lead rest of his life with disability of 15%,

hence it is appropriate to enhance the same to Rs.25,000/-.

In all, the claimant is entitled for a compensation of

Rs.3,49,900/- as against Rs.1,99,340/-.

15. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.


      (ii)    The impugned judgment and award of the
              Tribunal    dated     05.07.2013      passed     in
              M.V.C.No.3453/2011        is   modified    granting
              compensation     of   Rs.3,49,900/-   as    against