Munna @ Sabjan, S/O. Imamsab ... vs Rajesab S/O. Jamalsab Kudapali
2022 Latest Caselaw 11116 Kant

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                                       MFA No. 25232 of 2010




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 26th DAY OF JULY, 2022

                           BEFORE
         THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 25232 OF 2010 (MV-)

BETWEEN:

     MUNNA @ SABJAN, S/O. IMAMSAB HEDIYAL,
     AGED ABOUT 30 YEARS, R/O: DODDAGUBBI VILLAGE,
     TQ: HIREKERUR, DIST: HAVERI.



                                                    ...APPELLANT

(BY SRI. G. S. HULMANI AND SRI. MAHESH SHIVAPUJI, ADVOCATES)

AND:

1.   RAJESAB S/O. JAMALSAB KUDAPALI,
     AGE: MAJOR, R/AT: BILLAHALLI VILLAGE,
     TQ: RANEBENNUR, DIST: HAVERI.

2.   THE IFFCO TOKIO GENERAL INSURANCE CO., LTD.,
     BUSINESS UNIT, K.S.M.F., CUNNINGHAM ROAD,
     BANGALORE.



                                              ...RESPONDENTS

(R1 SERVED;
SRI. S.K.KAYAKMATH, ADVOCATE FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04.09.2010 PASSED
IN MVC NO.406/2006 ON THE FILE F THE PRINCIPAL SENIOR CIVIL
JUDGE AND MEMBER, ADDITIONAL MACT, AND ITENERATE COURT
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                                       MFA No. 25232 of 2010


AT HIREKERUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
     THIS APPEAL COMING ON FOR ORDER THIS DAY. THE COURT
DELIVERED THE FOLLOWING:


                       JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for the respondents.

2. The factual matrix of the case of the claimant

before the tribunal is that, he was going on P.B.Road from

Halageri Cross to Ranebennur Bus Stand to board the bus

to go to his native place after completion of his driving

work. At that time, near the Forest Office, Auto Riskhaw

came in rash and negligent manner and dashed against

him. As a result, he sustained injuries and he has suffered

the fracture and immediately he was taken to hospital and

applied Plaster of Paris and he was also advised to

undergo physiotherapy and hence, he has filed the claim

petition and to substantiate his contention he himself

examined as P.W.1 and got marked the documents at

Ex.P.1 to Ex.P.12. Apart from that, he has also examined

MFA No. 25232 of 2010

P.W.2 the Doctor who assessed the disability at 35% and

the tribunal has taken the disability at 10% and awarded

compensation of Rs.69,200/- and hence, the present

appeal is filed.

3. The counsel appearing for the appellant would

vehemently contend that, the tribunal has considered only

income of Rs.3,000/- per month and also awarded an

amount of Rs.3,000/- as loss of income during the

treatment in spite of he had suffered the fracture. Apart

from that, the tribunal has awarded a sum of Rs.5,000/-

under the head of medical expenses and no compensation

has been awarded under the other heads i.e. loss of

amenities and also the expenses during the treatment and

hence, it requires interference of this Court.

4. Per contra, learned counsel appearing for the

respondent would submit that, the tribunal considering the

nature of the injury and only a fracture of lateral malloelus

bone has taken 10% of disability and also awarded just

MFA No. 25232 of 2010

and reasonable compensation and it does not require any

interference of this Court.

5. Having heard the respective counsel and also

on perusal of the material, the point that arise for

consideration before this Court is as under:

1. Whether the tribunal has committed error in not awarding just and reasonable compensation?

2. What order ?

6. Having heard the respective counsel and also

on perusal of the material in terms of the wound certificate

at Ex.P.4, he has sustained two injuries i.e. the injury No.1

is grievous, i.e. X-ray shows left ankle which shows the

fracture of lateral malloelus bone. The claimant also

examined witness as P.W.2 the Doctor who assessed the

disability in terms of Ex.P.9 and according to him, the

disability was 35% and loss of physical functioning

disability with respect to left lower limb, but in the cross-

examination he has admitted that the said disability is with

MFA No. 25232 of 2010

respect to that particular limb and hence taken 10%

disability.

7. I do not find any error committed by the

tribunal in considering the disability at 10% having taken

note of the fracture of the lateral malloelus bone and

P.W.2 the Doctor also admitted in the cross-examination

the disability is in respect of left lower limb. Now coming

to the quantum of compensation is concerned, the tribunal

has taken income at the rate of Rs.3000/- per month and

this accident was taken place in the year 2006 and the

notional income would be Rs.3,750/- and having

considered his age, the relevant multiplier is taken as 17

since his age is 26 years and has rightly taken the

multiplier as 17 and having taken Rs.3,750/-

X12X17X10%, it comes to Rs.76,500/-. The tribunal has

committed an error in only awarding an amount of

Rs.3,000/- as loss of income during the treatment and the

fact that he has suffered the fracture i.e. fracture of left

lateral malloelus bone, it requires minimum three months

MFA No. 25232 of 2010

to unite the fracture and to take rest and hence, it is

appropriate to award three months loss of income

Rs.3,750/-X3=11,250/-. The Tribunal awarded an amount

of Rs.5,000/- towards medical expenses and having taken

note of the nature of the injuries and he had suffered the

fracture, I do not find any error in awarding Rs.5,000/-

and only medical bills Ex.P.11 and 12 are produced and

hence, it does not requires any interference. The tribunal

also committed an error in not awarding any compensation

under the head of loss of amenities and he is aged about

26 years as on the date of the accident and he has to

suffer 10% disability and hence, it is appropriate to award

an amount of Rs.20,000/- under the head of loss of

amenities. The tribunal also not awarded any expenses

during the period of treatment and hence, it is appropriate

to award an amount of Rs.5,000/- under the head of

expenses towards conveyance and food nourishment

during the treatment. In all the petitioner is entitled for

MFA No. 25232 of 2010

compensation of Rs.1,17,750/- as against Rs.69,200/-. In

view of the discussions made above, I pass the following:

ORDER

The appeal is allowed in part.

The Judgment and award passed by the Tribunal is modified granting compensation of Rs.1,17,750/- with 6% interest from the date of petition.

The respondent is directed to pay the compensation within four weeks and Registry is directed to transmit the TCR, forthwith.

Sd/-

JUDGE

svh