Allabax S/O Bandu Chikkodi vs The General Manager
2022 Latest Caselaw 11147 Kant

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                                       MFA No. 100556 of 2015
                                   C/W MFA No. 100555 of 2015




     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                           BENCH

       DATED THIS THE 27TH DAY OF JULY, 2022

                          BEFORE
        THE HON'BLE MR JUSTICE H.P.SANDESH

 MISCELLANEOUS FIRST APPEAL NO. 100556/2015
                            C/W
 MISCELLANEOUS FIRST APPEAL NO. 100555/2015
                           (MV-)

IN MFA NO.100556/2015

BETWEEN:

1.    ALLABAX S/O BANDU CHIKKODI
      AGED ABOUT 47 YEARS,
      OCC: LABOUR AND VEGETABLE VENDOR
      R/O. B.K.KANGRALI,
      TQ and DIST: BELAGAVI

                                                    ...APPELLANT

(BY SRI. UMESH C AINAPUR, ADVOCATE)

AND:

1.    THE GENERAL MANAGER
      M.S.R.T.C, DR. A NAIR MARG, VAHATUK BHUVAN,
      BOMBAY, THROUGH ITS DIVISIONAL CONTROLLER,
      MSRTC, KOLHAPUR,
      DIST: KOLHAPUR, STATE: MAHARASHTRA

                                                ...RESPONDENT

(BY SRI. CHANDRASHEKHAR M HOSAMANI, ADVOCATE)

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 30.09.2014, PASSED IN MVC.NO.743/2014, ONT EH FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER, ADDITIONAL MACT, BELAGAVI ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.100555/2015

BETWEEN

1. SMT.SHEHANAZ W/O BABASO CHIKKODI AGED ABOUT 41 YEARS, OCC: HOUSEWIFE, R/O: B.K KANGRALI, TQ and DIST: BELAGAVI

2. KUMAR MOHAMMED S/O BABASO CHIKKODI AGED ABOUT 28 YEARS, OCC: COOLIE, R/O. B.K KANGRALI, TQ and DIST: BELAGAVI

3. SMT.PYARANBI S/O GUDULAAL CHIKKODI AGED ABOUT 69 YEARS, OCC: HOUSEHOLD, R/O: MAUJIAGAR (SHIROL) TQ : SHIROL, DIST: KOLHAPUR, STATE: MAHARASHTRA ...APPELLANTS (BY SRI.UMESH C AINAPUR, ADVOCATE)

AND

1. THE GENERAL MANAGER M.S.R.T.C., DR. A NAIR MARG, VAHATUK BHUVAN, BOMBAY, THROUGH ITS DIVISIONAL CONTROLLER, MSRTC, KOLHAPUR, DIST: KOLHAPUR, STATE: MAHARASHTRA ...RESPONDENTS (BY SRI. CHANDRASHEKHAR M HOSAMANI, ADVOCATE)

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

THIS APPEAL IS FILED U/S. 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:30.09.2014, PASSED IN MVC NO.367/2014, ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELGAUM, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Heard learned counsel for the appellants and learned

counsel for the respondent in both the appeals.

2. Factual matrix of the case of the claimants

before the Tribunal is that the deceased-Babaso Chikkodi

is the husband of claimant No.1 in MVC No.367/2014,

claimant No.2 is son and claimant No.3 is the mother of

deceased. The claimants have claimed compensation

contending that deceased met with an accident on

23.01.2014 and succumbed to injuries.

3. The claimant in MVC No.743/2014 is the injured

and he claims that he sustained fracture of fibula and as a

result of injuries he has suffered permanent disability and

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

hence he is not able to earn as earlier. Hence, he claimed

compensation for the accidental injuries sustained by him.

4. MSRTC appeared before the Tribunal and

contested the claim petitions contending that the

claimants are not entitled for compensation as claimed by

them.

5. Claimants in MVC No.367/2014 have examined

petitioner No.2 PW.1 and injured in MVC No.743/2014 has

been examined as PW.2 and doctor is examined as PW.4.

The claimants got marked documents as Exs.P.1 to P.15.

On the other hand, respondents have not led any oral or

documentary evidence in support of their defence.

6. The Tribunal after considering both the oral and

documentary evidence on record, awarded compensation

of Rs.7,50,000/- in MVC No.367/2014 and Rs.20,000/- in

MVC No.743/2014.

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

7. Being aggrieved by the impugned judgment and

award, the claimants in both the claim petitions are in

appeals.

8. Learned counsel for the claimants in MVC

No.367/2014 vehemently contends that the accident is of

the year 2014 and as per the chart prepared by the

Karnataka State Legal Services Authority, even in the

absence of any proof, the notional income would be

Rs.7,500/- and Tribunal has taken only Rs.6,000/- and

hence committed an error. The Tribunal has not awarded

just and reasonable compensation.

9. Learned counsel for also contends that the

compensation awarded on other heads is also very meager

and requires interference by this Court.

10. He further contended that in respect of claimant

in MVC No.743/2014, the Tribunal has committed an error

in only awarding global compensation pf Rs.20,000/-

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

though the claimant has suffered fracture of left fibula. In

support of his contention he refers to the evidence of

doctor, who is examined as PW.4, wherein he has clearly

deposed that the claimant has suffered disability to an

extent of 23% and the Tribunal has not considered the

same and not awarded any compensation on the head of

loss of income during laid up period and the claimant was

inpatient for a period of 9 days i.e. 23.01.2014 to

30.01.2014 and hence it requires interference by this

Court.

11. Per contra, learned counsel for the respondent-

MSRTC contended that the Tribunal while considering the

case of the claimants in MVC No.367/2014 committed an

error in adding 15% to the income of the deceased.

Considering the age of the deceased as 55 years, it should

have been 10% since the deceased is not having

permanent income and he is self employed person and he

is an agriculturist and the Tribunal has also taken note of

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

the material on record and it does not require any

interference.

12. 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 in MVC No.367/2014?

ii. Whether the Tribunal has committed an error in not awarding just and reasonable compensation in MVC No.743/2014?

iii. What order?

13. Regarding Point No.1: Having heard the

learned counsel for the parties and on perusal of the

material on record, the claimants in MVC No.367/2014 are

the wife, son and mother of deceased and their claim is

that the deceased was working as an agriculturist and

vegetable vendor and he was earning Rs.10,000/- p.m.,

but the Tribunal has considered the income of the

deceased at Rs.6,000/- but the notional income would be

Rs.7,500/- in respect of accidental claims of the year

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

2014. Having regard to the number of dependants,

deduction would be 1/3rd and 10% should be added to the

income of the deceased since he is self employed person

instead of 15%. The multiplier adopted by the Tribunal at

11 is just and proper. Hence, the modified compensation

under the head loss of dependency would be as under:

Rs.7,500 + 10% = Rs.8,250/-

Rs.8,250 - Rs.2,750 (deduction of 1/3rd) = Rs.5,500 x 12 x 11 = Rs.7,26,000/-.

14. The Tribunal has awarded compensation of

Rs.22,200/- on the head of loss of consortium in respect of

claimant No.1. The same is an error and an amount of

Rs.1,20,000/- (Rs.40,000/- each) is to be awarded

towards loss of consortium and loss of love and affection.

Further, the claimants are entitled for Rs.30,000/-

towards loss of estate and funeral expenses instead of

Rs.35,000/-.

MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

15. The Tribunal has awarded Rs.15,000/- under

the head medical expenses, which requires no

interference. In all, the claimants are entitled for

Rs.8,91,000/- as against Rs.7,50,000/-.

16. Regarding point No.2: The claimant in MVC

No.743/2014 has sustained fracture of fibula and in

support of his contention he also relied on Ex.P.11-wound

certificate as well as Ex.P.12-discharge summary issued by

Ayurvedic doctor showing that the petitioner has sustained

fracture of left fibula and Ex.P.15-X-rary and report is also

produced, which clearly disclose that he has suffered

fracture of left fibula, but the Tribunal committed an error

in coming to the conclusion that X-ray taken at the time of

treatment has not been produced. But the doctor who is

examined as PW.4 deposed before the Court that he has

suffered disability to an extent of 20% to the left lower

limb and the Tribunal has come to the conclusion that in

case of a fracture there cannot be any permanent

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MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

disability. The very approach of the Tribunal is erroneous

and fibula is a supporting bone but the very conclusion of

the Tribunal that the claimant has not sustained any

permanent disability cannot be accepted. Doctor has

deposed that the claimant has sustained 20% disability

and hence taking note of the same and fibula is a

supporting bone, the Tribunal ought to have taken 1/3rd of

the assessed disability which comes to 6½% and the same

is rounded off to 7%.

17. As per medical bills produced, the claimant has

spent an amount of Rs.4,650/- towards medical expenses

in terms of Ex.P.13 and when the injured has taken

treatment as an inpatient for a period 9 days and spent

Rs.4,650/- towards medical expenses, the very approach

of the Tribunal in awarding only Rs.20,000/- globally is

erroneous.

18. Having reconsidered the material on record and

taking note of the fracture sustained by the claimant, it is

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MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

appropriate to award an amount of Rs.30,000/- on the

head of pain and suffering. Medical bills produced by the

claimant are to the tune of Rs.4,650/-, which is rounded

off to Rs.5,000/-. When the claimant has suffered

fracture of fibula it requires minimum three months for

uniting and rest. Hence, taking note of the accident is of

the year 2014 and he is an agriculturist, the notional

income is considered at Rs.7,500/-. Considering the same,

the claimant is entitled for Rs.22,500/- (7,500 x 3)

towards loss of income during laid up period.

19. This Court considered disability at 7%.

Considering the age of the claimant, the appropriate

multiplier would be 13. Hence, the claimant is entitled for

the following compensation under the head loss of future

income:

Rs.7,500 x 12 x 13 x 7% = Rs.81,900/-.

20. Considering the age of the claimant as 47 years

and he has suffered disability at 7% on his left fibula, an

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MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

amount of Rs.20,000/- is awarded towards loss of

amenities. The petitioner was in hospital for 9 days and

taking note of the same, it is appropriate to award

Rs.10,000/- towards conveyance, food, nourishment and

other expenses.

21. In all, the claimant is entitled for

Rs.1,69,400/- with interest at 6% p.a. Accordingly, point

Nos.1 and 2 are answered.

22. Regarding point No.3: In view of the

discussions made above, I pass the following:

ORDER

Appeals are allowed in part.

In modification of the impugned judgment and award

passed by the Tribunal, the claimants in MFA

No.100555/2015 (MVC No.367/2014) are entitled for a

sum of Rs.8,91,000/- as against Rs.7,50,000/- awarded

by the Tribunal in the impugned judgment and award.

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MFA No. 100556 of 2015 C/W MFA No. 100555 of 2015

The claimant in MFA No.100556/2015 (MVC

No.743/2014) is entitled for a sum of Rs.1,69,400/- as

against Rs.20,000/- awarded by the Tribunal in the

impugned judgment and award.

Enhanced compensation in both the appeals 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.

The other terms of the award of the Tribunal stand

unaltered.

Office to return trial court records along with a copy

of this order forthwith.

Sd/-

JUDGE SH