Shri.Chandrayya S/O. Pawadayya ... vs Shri.Shrishail.K. Mathad
2022 Latest Caselaw 11459 Kant

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                                    MFA No. 100151 of 2019


     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                          BENCH

      DATED THIS THE 22ND DAY OF AUGUST, 2022

                          BEFORE
        THE HON'BLE MR JUSTICE H.P.SANDESH
     MISCELLANEOUS FIRST APPEAL NO. 100151 OF
                       2019 (MV-I)
BETWEEN:

1.    SHRI.CHANDRAYYA S/O. PAWADAYYA PUJERI
      AGE:64 YEARS,
      OCC:AGRICULURE (NOW NIL),
      R/O. BASTHAWAD VILLAGE,
      TALUKA-HUKKERI,
      DISTRICT:BELAGVI.

                                                ...APPELLANT

(BY SRI. DEEPAK S KULKARNI, ADVOCATE)

AND:

1.    SHRI.SHRISHAIL.K. MATHAD
      AGE:MAJOR, OCC:AGRICULURE AND BUSINESS,
      R/O. BASTHAWAD VILLAGE,
      TALUKA-HUKKERI,
      DISTRICT:BELAGVI.
      (OWNER OF THE HONDA SHINE MOTOR CYCLE BEARING
      REG.NO. KA-49-L-4700)

2.    THE DIVISIONAL MANAGER
      THE IFFCO TOKIO INSURANCE COMPANY LTD.,
      THROUGH ITS DIVISIONAL OFFICE AT THE BRANCH
      MANAGER,
      2ND FLOOR, SHIKSHANA VISHWASTA MANDALA,
      SHIKSHAK BHAVAN,
      COLLEGE ROAD,
      BELAGAVI-590010. INDIA.
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                                        MFA No. 100151 of 2019


    (INSURER OF HONDA SHINE MOTOR CYCLE BEARING
    REG.NO. KA-49-L-4700 VALID FROM 05.09.2015 TO
    04.09.2016)

                                                ...RESPONDENTS
(BY SRI. M.Y.KATAGI, ADVOCATE FOR R2,
NOTICE TO R1 SERVED)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 19.07.2018 PASSED
IN MVC NO.3025/2016 ON THE FILE OF II ADDITIONAL DISTRICT
JUDGE, BELAGAVI PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:



                        JUDGMENT

Though this appeal is listed for admission today, with

the consent of both the parties, it is taken up for final

disposal.

2. Factual matrix of the case of the claimant

before the Tribunal is that on account of accident dated

05.08.2016 the claimant had suffered permanent disability

since he has suffered fracture of patella and the same is

malunited and he was inpatient for a period of 19 days

and he was subjected to surgery. Hence, he laid a claim

MFA No. 100151 of 2019

before the Tribunal. The claimant in order to substantiate

his claim, examined doctor as P.W.2 who assessed the

disability at 32% to whole body, but the Tribunal has

taken 10% and awarded Rs.20,000/- on pain and suffering

and only Rs.3,800/- has been awarded towards loss of

income and no compensation is awarded on loss of

amenities. Hence, the learned counsel for the appellant

seeks for enhancement of compensation.

3. Learned counsel for the respondent-Insurance

Company would contend that the Tribunal has rightly

taken the disability at 10% and also the income at

Rs.8,000/- per month is just and proper and hence just

and reasonable compensation has been awarded by the

Tribunal and hence does not require any interference.

4. In view of the rival contentions of the parties,

the following points would arise for consideration:

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

   ii.     What order?





                                     MFA No. 100151 of 2019

5. Regarding Point No.1: Having heard the

learned counsel for the parties and on perusal of the

material on record, the injured has placed on record the

wound certificate as Ex.P.7 and also disability certificate at

Ex.P.11 and doctor who has been examined in his

evidence has deposed that he has suffered 30% disability

to whole body and 35% functional disability and the

Tribunal has taken 10% disability which is 1/3rd of the

assessed disability but Tribunal committed an error in not

noticing the fact that the claimant had suffered fracture of

patella and fracture is also malunited and when such being

the case, the Tribunal ought to have taken disability at

13% and not considered the fact of malunion and hence it

is appropriate to consider disability at 13%.

6. The Tribunal has awarded Rs.20,000/- towards

pain and suffering which is meager and hence it is

appropriate to award Rs.35,000/- on the head pain and

suffering. The Tribunal has considered the income as

Rs.8,000/- per month and the Tribunal has awarded only

MFA No. 100151 of 2019

Rs.3,800/- for loss of income for the treatment period and

the same is erroneous. The accident is of the year 2016

and hence notional income of Rs.8,750/- is to be

considered. When he has suffered fracture of patella it

requires minimum three months for uniting of fracture and

for taking rest and hence it is appropriate to award

Rs.26,250/- (Rs.8,750 x 3) towards loss of income

during laid up period.

7. The Tribunal has awarded Rs.83,571/-

towards medical expenses and the same is based on

documentary evidence and does not requires any

interference. The Tribunal also awarded Rs.24,000/-

towards food and nourishment and the same is just and

reasonable. The proper multiplier would be 7 considering

the age of the claimant and award of Rs.67,200/- on the

head disability is to be reassessed by assessing the

disability at 13%. Hence, the following compensation is to

be awarded on the head of disability:

Rs.8,750 x 12 x 7 x 13% = Rs.95,550/-.

MFA No. 100151 of 2019

8. The Tribunal has not awarded any

compensation on loss of amenities. Having considered the

age as well as disability it is appropriate to award

Rs.25,000/-. In all, the claimant is entitled for

Rs.2,89,371/-. Accordingly, the point No.1 is answered.

9. Regarding point No.2: In view of the

discussions made above, I pass the following:

ORDER

Appeal is allowed in part.

In modification of the impugned judgment and award

passed by the Tribunal, the claimant is entitled for a sum

of Rs.2,89,371/- as against Rs.1,98,571/- awarded by

the Tribunal in the impugned judgment and award.

Enhanced compensation shall carry interest at 6%

p.a. from the date of petition till realization and payable

within six weeks from the date of this order.

Apportionment and deposit of the compensation

amount would be as per the award of the Tribunal.

MFA No. 100151 of 2019

Amount in deposit, if any, is ordered to be

transferred to the Tribunal forthwith.

The registry is directed to transmit the trial court

records forthwith.

Sd/-

JUDGE

SH