Karnataka High Court
G Tippeswamy S/O Gangappa vs K Azamathulla S/O K. Hammed Khan on 2 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2 N D DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.22313/2011 (MV)
BET WEEN
G.T IPPESWAMY S/O GANGAPA,
AGE: AB OUT 30 YEARS,
OCC: AGRICU LTU RIST,
R/O KARDIHA LL I VIL LAGE,
MOLKALMURU TALUK,
CHITRADU RGA DIS TRICT,
NOW RESID ING AT COWL BAZ AR,
BALLARI.
...APPELLANT
(BY SMT.SHAILA BELLIKAT TI, ADVOCAT E)
AND
1. K.AZ AMATHULLA,
S/O K.HAMMED KHAN,
OWNER CU M DRIVER OF LORRY
NO.AP-04/U -5694,
R/O DOOR NO.4- 625,
MARKET ST REET, GORANTLA,
ANANTPU R DISTRICT,
ANDHRA PRADESH-515231.
2. MANAGER,
NEW INDIA ASSU RANCE COMPANY,
KRISHNA MANSION, MAIN B AZ AR,
HINDUPURA B RANCH AT B ALLARI.
...RESPONDENTS
(BY SRI N.R.KU PPELU R, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
2
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 04.12.2 010 PASS ED IN
MVC No.266/ 2010 ON THE F ILE OF THE MOTOR ACCIDENT
CLAIMS TRIB U NAL-X II, B ALLARI, PARTLY ALLOWIN G THE
CLAIM PET IT ION FOR COMPENSAT ION AND S EEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COM ING ON F OR F INAL HEAR IN G, THIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
JUDGMENT
The claimant has preferred this app eal being not
satisfied with the quantum of compensation award ed by
the Motor Accident Claims Tribunal-XII, Ballari
(hereinafter referred to as the 'Tribunal', for brevity)
in MVC No.266/2010 vide its judgment and award
dated 04.12.2010.
2. The parties to this appeal are referred to by
their rankings assigned to them before the Tribunal
for the sake of convenience.
3. Brief facts of the case that would be
relevant for the purpose of disposal of this appeal
are:
On 14.09.2009, when the claimant was traveling
in his TVS Victor motorcycle bearing registration
No.AP-02/7788, the offending lorry bearing
registration No.AP-04/U-5659 which was driven by its
driver in a rash and negligent manner dashed against
the claimant's motorcycle near Devaramani
Shekarappa's land at Karadihalli on Rampur-Raydurga
road and caused the accident. In the said accident,
the claimant suffered grievous injuries and he was
shifted to a hospital wherein he was treated as an
inpatient together for a period of 97 days. The
claimant had therefore filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988 (for
short, the 'Act') claiming compensation of
`6,00,000/- with interest from the owner and insurer
of the offending lorry bearing registration No.AP-04/
U-5659. The Tribunal had partly allowed the claim
petition and awarded a compensation of `3,06,979/-
with interest at 6% per annum from the date of
petition till realization and saddled the liability to pay
the compensation amount on the 2 n d respondent-
insurer of the offending vehicle. Being not satisfied
with the quantum of compensation, the claimant is
before this Court.
4. Learned counsel for the claimant submits
that having regard to the nature of injuries and
treatment undergone by the claimant, the Tribunal
ought to have taken the disability to the whole body
at 25% as assessed by PW2-doctor. She submits that
the notional income of the claimant is also considered
on the lower side which has resulted in awarding
lesser compensation. She submits that under all
heads, the claimant is entitled for higher
compensation.
5. Per contra, learned counsel appearing for
the insurer has argued in support of the impugned
judgment and award passed by the Tribunal and
submits that Tribunal has awarded just and proper
compensation which needs no interference and prays
to dismiss the appeal.
6. I have carefully considered the arguments
addressed on both sides and also perused the
material available on record.
7. The admitted facts of the case are that on
14.09.2009 in the road traffic accident that had
taken place near Devaramani Shekarappa's land on
Rampur-Raydurga road which involved the offending
lorry bearing registration No.AP-04/U-5659, the
claimant who was traveling in his motorcycle bearing
registration No.AP-02/7788 had suffered injuries. It
is not in dispute that the offending lorry was duly
insured by the 2nd respondent-insurer and the
insurance policy was valid as on the date of accident.
In the accident in question, the claimant had suffered
fracture of right femur and fracture base of proximal
phalanx right little toe and also other simple injuries
on his body. The hospital records would go to show
that he was admitted in the hospital on four different
occasions and was inpatient for a total period of 97
days. The records would also go to show that there
was a delay in union of supracondylar fracture of
right femur and therefore the claimant had to
undergo prolonged treatment. The doctor-PW2 who is
an orthopedic surgeon has spoken with regard to the
injuries suffered by the claimant and also with regard
to the disability caused to the limb as well as to the
whole body due to the said injuries. The doctor has
assessed the whole body disability at 25%. The
Tribunal without assigning any reason had considered
the same at 20%. In my considered view when an
expert has opined that the disability caused due to
the injuries is at 25% to the whole body, unless the
Tribunal has reason to disbelieve the same, the
disability ought to have been considered at 25% to
the whole body. The accident is of the year 2009 and
therefore as per the income chart maintained by the
Karnataka State Legal Services Authority for the
purpose of disposal of motor accident claims cases
before the Lok Adalath, the notional income of the
claimant was required to be taken at `5,000/- per
month and having regard to the age of the claimant,
the proper multiplier applicable being '16', the
claimant would be entitled for a sum of `2,40,000/-
towards loss of future income due to disability as
against `1,72,800/- awarded by the Tribunal.
8. Having regard to the nature of injuries and
the prolonged treatment undergone by the claimant,
he would be entitled for a sum of `50,000/- towards
pain and suffering as against `30,000/- awarded by
the Tribunal. The claimant was admitted in the
hospital for a period of 97 days and in addition to the
same, he would also have undergone follow up
treatment and he would have incurred substantial
amount of incidental expenses. Therefore under the
said head, I deem it fit to award a sum of `30,000/-
as compensation to the claimant.
9. The medical records would go to show that
the claimant was admitted in VIMS Hospital on
15.09.2009 and he was last discharged on
04.06.2010. Therefore, the claimant would have lost
income for atleast one year during the course of his
treatment. Under the circumstances, the claimant is
awarded a sum of `60,000/- towards loss of income
during laid up period. Towards loss of amenities in
future life, the claimant is awarded a sum of
`40,000/- as against `20,000/-. The amount of
`28,079/- awarded by the Tribunal towards medical
expenses remain unaltered. Therefore in all, the
claimant would be entitled for a sum of `4,48,079/-
as against the sum of `3,06,979/- awarded by the
Tribunal which would be as follows:
1 Loss of income due to `2,40,000/-
disability
2 Pain and suffering `50,000/-
3 Incidental expenses `30,000/-
4 Loss of income during laid `60,000/-
up period
5 Loss of amenities `40,000/-
6 Medical expenses `28,079/-
Total `4,48,079/-
10. Accordingly, the following:
ORDER
The Miscellaneous First Appeal is
allowed in part.
The claimant is entitled for a total
compensation of `4,48,079/- as against the
amount of `3,06,979/- awarded by the
Tribunal. The enhanced compensation
amount awarded shall carry interest at 6%
per annum from the date of petition till
realization.
Since the liability of respondent No.2-
Insurer is undisputed, the enhanced amount
of compensation with interest shall be
deposited by respondent No.2-Insurer
before the Tribunal within a period of six
weeks from the date of receipt of the
certified copy of this order.
The order passed by the Tribunal
insofar as it relates to reimbursement and
deposit etc., shall also be applicable to the
enhanced amount of compensation.
The registry is directed to forthwith
send back the records to the Tribunal.
Sd/-
JUDGE
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