Karnataka High Court
Wasim Akram vs Pushpa. A on 5 January, 2022
Bench: Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A.NO.8541 OF 2018 (MV-I)
BETWEEN:
WASIM AKRAM
S/O NASIR PASHA
NOW AGED ABOUT 25 YEARS
R/A ARAKERE VILLAGE
KASABA HOBLI, KUNIGAL TALUK
TUMKUR DISTRICT. ...APPELLANT
[BY SRI RAGHU R., ADVOCATE (VC)]
AND:
1. PUSHPA A.
MAJOR, W/O ANARADHAN.N.,
R/A NO.11, 8TH MAIN ROAD
2ND STAGE, 2ND BLOCK
NAGARABHAVI, BDA LAYOUT
BANGALORE-560 072.
2. THE MANAGER
NATIONAL INSURANCE CO. LTD.,
MUDDAPPA COMPLEX
SHIRANI ROAD, TUMKUR-572 101.
...RESPONDENTS
[BY SRI JANARDHANA REDDY, ADVOCATE FOR R2 (VC);
NOTICE TO R1 IS DISPENSED WITH V/O DATED 25.10.2021]
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THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING AGAINST THE JUDGMENT AND AWARD DATED 11.07.2017
PASSED IN MVC NO.4891/2015, ON THE FILE OF THE 23RD
ADDITIONAL SMALL CAUSES COURT AT BENGALURU (SCCH-25),
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the common judgment and award dated
11.07.2017 passed by XXI Additional Chief Metropolitan
Magistrate and XXIII Additional Small Causes Court at
Bengaluru, insofar as MVC No.4891/2015 this appeal is filed
by the claimant seeking for enhancement of compensation.
2. Brief facts as stated are that, on 08.05.2015 at
2:30 p.m. when Irfan and Wasim were traveling on their two
wheeler bearing registration no.KA-06-EN-8378 from
Bengaluru towards Magadi, a Maruti Car bearing registration
no.KA-41-Z-153 driven by its driver in rash and negligent
manner dashed against their motorcycle near
Tippagondanahalli. In the accident they sustained grievous
injuries. After first aid at Government Hospital, Magadi and
while being taken to NIMHANS Hospital, Irfan died. Wasim was
treated at Siddhartha Hospital, Bengaluru from 11.07.2015 to
13.08.2015 and underwent surgery. However, he did not
recover fully. He sustained physical disability and suffered
reduction in earning capacity. Claiming compensation for the
same, he filed claim petition under Section 166 of Motor
Vehicles Act ('M.V. Act' for short) against owner and insurer of
Car. Separate claim petition was filed by legal representatives
of deceased Irfan.
3. Respondents opposed claim petition. Insurer denied
liability on the ground of violation of terms and conditions of
policy. It also opposed claim petition as exorbitant. As both
claim petitions arose out of same accident, they were clubbed
together.
4. Based on pleadings, tribunal framed following
issues:
1. ªÀiÁgÀÄw PÁgï ¸ÀASÉå PÉJ-41-eÉqï-153gÀ ZÁ®PÀ ¢.
08.07.2015 gÀAzÀÄ 02.30 UÀAmÉUÉ ¨ÉAUÀ¼ÀÆgÀÄ-ªÀiÁUÀr
gÀ¸ÉÛAiÀÄ°è, w¥ÀàUÉÆAqÀ£À ºÀ½îAiÀÄ §½, ¸ÀzÀj PÁgÀ£ÀÄß CwÃ
ªÉÃUÀ ªÀÄvÀÄÛ CeÁUÀgÀÆPÀvÉɬÄAzÀ ZÁ®£É ªÀiÁr ¢é-ZÀPÀæ
ZÁºÀ£À ¸ÀASÉå: PÉJ-06-E£ï-8378 PÉÌ rQÌ¥Àr¹zÀ PÁgÀt
CfðzÁgÀjUÉ wêÀæ ¸ÀégÀÆ¥ÀzÀ UÁAiÀÄUÀ¼ÀÄ
GAmÁVgÀÄvÀÛzÉAzÀÄ CfðzÁgÀgÀÄ ¸Á©üÃvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
2. CfðzÁgÀgÀÄ CfðAiÀÄ°è ºÉýgÀĪÀ C¥À¥sÁvÀ ¥ÀjºÁgÀPÉÌ
CºÀðgÉ? ºËzÁzÀgÉ, JµÀÄÖ ªÀÄvÀÄÛ AiÀiÁjAzÀ?
3. K£ÀÄ DzÉñÀ CxÀªÁ CªÁqïð?
5. Claimant no.1 in other claim petition was examined
as PW-1. Claimant herein was examined as PW-2 and Dr.
Muralidhar B.M. was examined as PW-3. Exhibits P.1 to P.22
were marked. Respondents did not lead evidence.
On consideration, tribunal held that accident occurred
due to rash and negligent driving of Maruti Car by its driver, it
was insured with respondent-insurer and policy was valid on
the date of accident. It also held that insurer had failed to
establish violation of terms and conditions of policy. After
determining age of claimant as 22 years, occupation as mobile
repairer and taking his notional income at Rs.8,000/-,
functional disability at 39%, awarded total compensation of
Rs.4,44,497/- with interest at 8% per annum and held insurer
liable to pay the same. Not satisfied with quantum of
compensation, claimant is in appeal.
6. Sri. Raghu R., learned counsel for
claimant/appellant submitted that deceased was a 22 years
old, mobile repairer and whose monthly income was more
than Rs.13,000/-, but tribunal took inadequate monthly
income of Rs.8,000/- and sought for enhancement. It was
further submitted that though claimant sustained two
fractures i.e., fracture of left femur, fracture of back bone
(L4), tribunal awarded meager amount of Rs.30,000/- towards
pain and suffering, inadequate compensation of Rs.16,000/-
towards loss of income during laid-up period. Even award
under loss of amenities at Rs.10,000/- was grossly inadequate
and sought for enhancement. It was further submitted that as
per evidence of PW-3, claimant sustained disability of 28%
due to fracture of left femur and 30% due to facture of back
bone and assessed whole body disability of 34%. However,
tribunal considered functional disability of 15% only and
awarded inadequate compensation. On the said ground
learned counsel sought for enhancement of compensation.
7. On the other hand Sri. Janardhana Reddy learned
counsel for respondent no.2 opposed enhancement. It was
submitted that though claimant had stated that his monthly
income at Rs.15,000/-, no records produced to substantiate
the same and therefore tribunal was justified in taking notional
income. It was further submitted that PW-3 though assessed
physical disability, he did not assess functional disability.
Considering young age of claimant, there was possibility of
reduction of disability due to physiotherapy. Therefore,
assessment of functional disability at 15% was fully justified.
It was further submitted that on an over all consideration,
award of compensation was just and proper no interference
was called for.
8. From above submission, occurrence of accident due
to rash and negligent driving of offending car by its driver and
claimant sustaining injuries therein is not in dispute. Issuance
of insurance policy and its validity as on date of accident is
also not in dispute. Tribunal determined age of claimant as 22
years and occupation as mobile repairer which are also not in
dispute. Tribunal passed award against insurer. Insurer has
not challenged the same. Only claimant is in appeal seeking
enhancement of compensation awarded towards pain and
suffering, loss of amenities and loss of earning during laid up
period.
9. Therefore, point that arises for consideration is
"Whether the claimant is entitled for compensation as sought
for?"
10. Insofar as income and disability, claimant deposed
that he was working as mobile repairer and was earning
Rs.15,000/- per month. No record is produced to establish his
income. Therefore, it would be justified in taking notional
income. But the accident occurred on 08.07.2015. Notional
income for said period as per income adopted in settlement of
cases before Lok Adalath is Rs.9,000/-. Therefore, tribunal
would not be justified in taking it at Rs.8,000/-. It has to be
considered at Rs.9,000/- instead.
11. In order to establish disability sustained claimant
produced discharge summary, medical bills, OPD card, case
sheet, x-ray as per Exs.P.14, P.8 and P.22 respectively. From
Ex.P.14 it is seen that claimant sustained fracture of distal
1/3rd humerus. From Ex.P.18 - discharge summary it is seen
that claimant sustained compression fracture of L4 and
displaced fracture of left humerus.
12. Claimant was admitted on 11.07.2015 and
discharged on 13.08.2015. Claimant was admitted to said
hospital once again for treatment of fractures. Ex.P.19
corroborated by PW-3 Dr. Muralidhar B.M. of Siddhartha
Medical College and Hospital deposed that claimant was
treated at said hospital and was examined by him on
15.02.2017 for assessment of disability. At that time, he
noticed pain around left elbow and Lumbar spine and mal-
united fracture of humerus with implant in-situ. Based on his
clinical observations PW-3 assessed limb disability of 28%,
30% of lumbar spine and whole body disability of 39.5%.
However, PW-3 has also stated that claimant was advised to
undergo physiotherapy and wear lumbar corset.
13. Considering young age of claimant and requirement
of performing avocation of mobile repair by considering
disability sustained would definitely affect earning capacity to
a higher degree than assessed by the tribunal. In the facts
and circumstances of this case, considering evidence on record
it would be just and proper to take loss of earning capacity at
20% instead of 15% taken by tribunal. Claimant was 22 years
of age, multiplier applicable would be '18'. Thus, future loss of
income would be:
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Rs.9,000/- x 20 x 12 x 18 = Rs.3,88,800/-
14. Admittedly, claimant sustained two fractures.
However, tribunal awarded only a sum of Rs.30,000/- towards
pain and suffering which would be meager. Since he had
sustained two grievous fractures, it would be just and proper
to award Rs.60,000/- towards pain and suffering.
15. This aspect that there were implants in-situ, PW-3
deposed that he has to undergo one more surgery to remove
implants, tribunal has awarded Rs.25,000/- towards the same,
which in the facts and circumstances of the case, appears
justified and does not call for any interference. Tribunal has
awarded Rs.16,000/- towards loss of income during treatment
and recuperation. If it is taken for three months, award would
be Rs.27,000/- . The claimant had produced medical bills for
Rs.89,297/- which is awarded by tribunal towards full re-
imbursement. Thus, there is no scope for enhancement.
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16. Tribunal awarded Rs.15,000/- towards food,
nourishment and other incidental charges. Considering
duration of inpatient period, same appears just and proper and
does not call for interference. Though claimant had sustained
mal-united fracture of humerus and also fracture of L4,
tribunal awarded meager sum of Rs.10,000/- towards loss of
amenities, which would be grossly inadequate. In considered
opinion of this Court, as disability sustained would be endured
by claimant for remainder of his life, it would be just and
proper to award Rs.40,000/- towards loss of amenities. Thus,
total re-assessed compensation would be Rs.6,45,097/-
instead of Rs.4,44,497/-. There is enhancement of
compensation by Rs.2,00,600/-. Hence, point for consideration
is answered partly in affirmative as above.
17. However, tribunal has awarded interest at 8% per
annum. As per decision of this Court in Sriram General
Insurance Company Limited Vs Smt. Laxmi and others
reported in (2018) 4 AKR 808, Section 34 of Code of Civil
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Procedure, would apply and rate of interest has to be 6% per
annum. But as respondent - corporation has not challenged
rate of interest on award, without disturbing the same, it is
held that claimant would be entitled for interest at 6% per
annum on enhanced compensation.
18. In the result, I pass the following:
ORDER
1. Appeal is allowed in part with cost.
2. Claimant is entitled for enhanced compensation of
Rs.6,45,097/- as against Rs.4,44,497/- awarded by the
tribunal. Without disturbing rate of interest at 8% per
annum on Rs.4,44,497/- as awarded by the tribunal,
claimant would be entitled to interest at 6% per annum
on enhanced compensation of Rs.2,00,600/-.
3. Insurer is directed to deposit enhanced compensation
before tribunal within a period of six weeks from date of
receipt of certified copy of this order.
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4. On deposit, tribunal is directed to keep 50% of award in
fixed deposit in any Nationalised Bank or postal deposit
initially for a period of four years and release remaining
50% to claimant. The claimant would be entitled to
withdraw interest accrued periodically.
5. In view of disposal of main appeal, I.A.No.2/2021 does
not survive for consideration.
Sd/-
JUDGE
BVK
