Karnataka High Court
Mohammed Rafeeq vs Ganapathi Kamath on 3 June, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.1658/2013 (MV)
BETWEEN:
MOHAMMED RAFEEQ
S/O SHEIK AHAMMED
AGED 37 YEARS
R/O NAVUNDA
KUNDAPURA TALUK
UDUPI DISTRICT
... APPELLANT
(BY SRI MAHESH SHETTY, ADVOCATE)
AND:
1. GANAPATHI KAMATH
S/O SANJEEVA KAMATH
R/O GANESH PRINTERS
BEHIND COURT ROAD
UDUPI DISTRICT
2. THE UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE
KRISHNA COMPLEX
2ND FLOOR, G.P. PANTH ROAD
UDUPI DISTRICT.
... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.07.2012
PASSED IN MVC.NO.760/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, MACT, KUNDAPURA, PARTLY
2
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 appeal is listed for admission today, with the
consent of learned counsel appearing for appellant/claimant and
learned counsel appearing for respondent No.2/Insurance
Company, the same is taken up for final disposal.
2. Heard learned counsel appearing for the
appellant/claimant and learned counsel appearing for respondent
No.2/Insurance Company.
3. This appeal is filed by the appellant/claimant
challenging the Judgment and Award dated 09.07.2012 passed
in M.V.C.No.760/2010 by the Fast Track & Motor Vehicle
Accidents Claims Tribunal at Kundapura ('the Tribunal' for short),
questioning the quantum of compensation awarded by the
Tribunal.
4. The factual matrix of the case is that the
appellant/claimant has sustained the injuries in the road traffic
accident that occurred on 04.03.2010 at about 3:00 p.m, near
Harsha Daba on NH-47, Bhatkal, due to actionable negligence on
the part of the driver of the Maruti Omni bearing registration
No.KA-20-M-3231.
5. The short question involved in this appeal is only
with regard to the quantum of compensation and no dispute with
regard to the accident.
6. The claimant in support of his claim, he examined
himself as P.W.1 and also examined the Doctor as P.W.2 and got
marked the documents as Exs.P1 to P14. The respondents have
not led any evidence, however, got marked the copy of the
policy as Ex.R1.
7. The Tribunal, after considering both oral and
documentary evidence available on record, allowed the claim
petition of the petitioner in part granting compensation of
Rs.1,03,000/- with 6% interest per annum from the date of
petition till payment against respondent Nos.1 and 2 jointly and
severally. Being aggrieved by the Judgment and Award of the
Tribunal, the present appeal is filed by the claimant.
8. The learned counsel for the appellant would
vehemently contend that the Tribunal has committed an error in
taking an income of Rs.4,000/- per month though the accident
was taken place in the year 2010. The Tribunal has also
committed an error in not awarding the just and reasonable
compensation towards 'loss of income during the laid-up period'
and also 'future loss of income'. The Tribunal also committed an
error in not awarding any compensation on the head of 'loss of
amenities'.
9. Per contra, learned counsel appearing for respondent
No.2/Insurance Company would vehemently contend that the
Tribunal has awarded an amount of Rs.30,000/- towards 'pain
and agony' and also awarded an amount of Rs.25,000/- towards
'medical expenses, Conveyance, Special Diet, Nourishment and
attendant charges'. However, the learned counsel fairly concedes
that while taking the income of the injured, the Tribunal has
taken the income as Rs.4,000/- month and the notional income
would be Rs.5,500/- per month. Except 'loss of income during
the laid-up period' and 'future loss of income', nothing requires
revisiting with regard to the compensation awarded by the
Tribunal.
10. Having heard the arguments of learned counsel
appearing for the appellant/claimant and learned counsel
appearing for respondent No.2/Insurance Company and on
perusal of the grounds urged in the appeal and the materials
available on record, the points that would arise for consideration
of this Court are:
(i) Whether the Tribunal has committed an
error in not awarding the just and reasonable
compensation and it requires an interference of
this Court?
(ii) What order?
Point Nos.(i) & (ii):
11. Having heard the arguments of the respective
counsel and also on perusal of the impugned Judgment and
Award of the Tribunal and the reasoning assigned by the
Tribunal, it is rightly pointed out by the learned counsel for
respondent No.2 that the claimant has sustained only one
fracture and the accident of the year 2010, a sum of
Rs.30,000/- was awarded on the head of 'pain and agony'.
Hence, it does not require any interference of this Court. The
Tribunal considered the medical expenses to the tune of
Rs.3,000/- and odd and also awarded compensation on the other
heads i.e., Conveyance, Special Diet, Nourishment and attendant
charges' and awarded an amount of Rs.25,000/-. Hence, it does
not require any interference of this Court.
12. The Tribunal awarded an amount of Rs.12,000/-
towards 'loss of income during the treatment period' taking the
income for a period of three months. It is a case of fracture and
he took the conservative treatment, hence, it requires three
months treatment. By taking an income of Rs.5,500/- per
month, it comes to Rs.16,500/- as against Rs.12,000/- awarded
by the Tribunal under 'loss of income during the treatment
period'.
13. While calculating 'loss of future income', the Tribunal
considered the evidence of the Doctor, who has been examined
as P.W.2. P.W.2 also categorically admitted with regard to the
disability is concerned to the whole body 5% and assessed the
permanent disability at 10%. It is rightly pointed out by the
Tribunal that he is not a treated Doctor. Having considered the
nature of the fracture and he was also not subjected to any
surgery. In the cross-examination, he categorically admits that if
there is any permanent disability, they would conduct the
surgery. But in the case on hand, no surgery was conducted.
Hence, taking the disability of 5% is just and reasonable.
However, by taking an income of Rs.5,500/- per month and by
considering his age, the relevant multiplier is '16' with 5%
disability, the 'future loss of income' comes to Rs.52,800/-
(5500x12x16x5/100).
14. Having perused the Judgment and Award of the
Tribunal, no compensation was awarded towards 'loss of
amenities' and he was aged about 35 years as on the date of the
accident and he has to lead rest of his life with disability of 5%.
Hence, Rs.15,000/- is awarded towards 'loss of amenities'.
15. In the circumstances, the appellant/claimant is
entitled for an enhanced compensation of Rs.1,39,300/-, the
same is rounded off to Rs.1,40,000/- as against Rs.1,03,000/-
awarded by the Tribunal with interest at the rate of 6% per
annum from the date of petition till payment against respondent
Nos.1 and 2 jointly and severally.
16. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The Judgment and Award dated 09.07.2012
passed in M.V.C.No.760/2010 by the Fast Track &
Motor Vehicle Accidents Claims Tribunal at
Kundapura, is modified granting compensation of
Rs.1,40,000/- with interest at the rate of 6% per
annum from the date of petition till payment
against respondent Nos.1 and 2 jointly and
severally.
(iii) The respondent No.2/Insurance Company is
directed to deposit the enhanced amount within
six weeks from today.
(iv) The Registry is directed to transmit the records to
the concerned Tribunal, forthwith.
Sd/-
JUDGE
cp*
