Virupaxappa S/O Nagappa Kuntoji vs Bandenawaz S/O Allabaksha ...
2022 Latest Caselaw 9448 Kant

                            1


             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

          DATED THIS THE 23RD DAY OF JUNE 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.201513/2016 (MV)

BETWEEN:

VIRUPAXAPPA S/O NAGAPPA KUNTOJI,
AGE: 50 YEARS, OCC: HOTEL BUSINESS,

R/O MUTTAGI, TQ: B. BAGEWADI,
TQ: & DIST: VIJAYAPURA.
                                           ... APPELLANT

(BY SRI. SANGANAGOUDA V.BIRADAR, ADVOCATE)

AND:

1.     BANDENAWAZ S/O ALLABAKSHA
       BANGADIWALE,
       AGE: 31 YEARS,
       OCC: BUSINESS / DRIVER,
       R/O NISAR MADDI,
       VIJAYAPURA-586101.

2.     IRAPPA S/O MADIWALAPPA
       JANAKUNAVAR,
       AGE: 42 YEARS, OCC: BUSINESS,
       R/O MAHALINGAPUR,
       TQ: MUDHOL,
       DIST: BAGALKOT-587101.

3.     THE BRANCH MANAGER,
       UNITED INDIA INSURANCE CO. LTD.,
       1ST FLOOR, SANGAMMA BUILDING,
                                   2


      S.S.FRONT ROAD,
      VIJAYAPURA-586101.
                                                  ... RESPONDENTS

(BY SRI. S.S.ASPALLI, ADVOCATE FOR R3;
V/O DATED 11.01.2017 NOTICE TO R1 & R2 ARE
 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION BY MODIFYING THE
JUDGMENT AND AWARD DATED 23.06.2016 PASSED BY THE
COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND
MEMBER    MACT   NO.XII, AT   VIJAYAPURA,   IN  MVC
NO.1077/2014.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-


                             JUDGMENT

This appeal is filed by the claimant seeking

enhancement of compensation by challenging the judgment

and award dated 23.06.2016 passed by the III Additional

Senior Civil Judge and MACT-XII at Vijayapura, in MVC

No.1077/2014.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

Tribunal.

3. The brief facts of the case are that, the petitioner

has suffered injuries in the accident occurred on 18.04.2014

at about 2.00 p.m., while he was proceeding as a pillion rider

on a motor cycle bearing Registration No. KA.28/W.9454 from

Muttagi towards Bagewadi. At that time, a motor cycle

bearing Registration No. KA.48/K.7723 came from opposite

direction in a rash and negligent manner and hit the motor

cycle on which the claimant was proceeding. As a result, the

claimant suffered injuries. Hence, he filed a claim petition

under Section 166 of the Motor Vehicles Act, 1988 ('MV Act'

for short) before the Tribunal seeking compensation.

4. The claim petition was resisted by Respondent

No.3/Insurer on various grounds.

5. The Tribunal after assessing the oral and

documentary evidence, has awarded a total compensation of

Rs.3,48,400/- with interest at 6% p.a., from the date of

petition till the date of realisation.

6. Being aggrieved by the said judgment and award

of the Tribunal, the claimant has filed this appeal, seeking

enhancement.

7. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondent No.3/Insurer. Perused the records.

8. The learned counsel for the appellant would

contend that the Tribunal has awarded a meager

compensation under the heads of 'pain and suffering' and 'loss

of income during laid-up period', and also has taken the

notional income on lower side. He would also contend that no

compensation is awarded under the head of attendant

charges, conveyance and nourishment, and hence he would

seek for enhancement of compensation.

9. However, learned counsel for Respondent No.3

would support the judgment and award passed by the

Tribunal.

10. Having heard the arguments and perusing the

records, it is evident that the medical evidence disclose that

the Doctor, who treated the claimant has opined that the

claimant has suffered 45% disability to his right lower limb.

Considering this evidence, the Tribunal has taken the

disability at 15% to the whole body. This appears to be

reasonable and does not call for any interference.

11. However, the Tribunal has taken the income of the

claimant at Rs.6,000/- p.m.. In the absence of any material

evidence, this Court is consistently taking the notional income

at Rs.7,500/- p.m., in respect of the accidents occurred during

the year 2014 and as such, in this case also, the monthly

income of the claimant is taken at Rs.7,500/-. Hence, the

Tribunal has committed an error in taking the income on

lower side. On taking the monthly income of the claimant at

Rs.7,500/- p.m. and applying the multiplier '13' since the

age of the claimant is 40 years as on the date of accident, the

loss of future income would work-out to Rs.1,75,500/-

(Rs.7,500x12x13x15/100). Hence, the claimant is entitled for

Rs.1,75,000/- under the head of Loss of Future Income, as

against Rs.1,40,440/- awarded by the Tribunal.

12. The Tribunal has also awarded compensation of

Rs.1,55,000/- under the head of medical expenses, based on

medical records and this appears to be just and appropriate

and does not call for any interference.

13. However, the Tribunal has granted compensation

of Rs.20,000/- under the head of pain and suffering and

Rs.15,000/- under the head of loss of amenities. Claimant

suffered fracture of right femur and right tibia and other

injuries. Looking to the nature of injuries sustained by the

claimant, the compensation awarded by the Tribunal under

these heads appears to be on lower side. Hence, the claimant

is entitle for Rs.50,000/- under the head of pain and

sufferings and Rs.30,000/- under the head of loss of

amenities.

14. Further, under the head of Loss of Income During

Laid-up Period, the Tribunal has awarded a sum of

Rs.18,000/- taking the monthly income Rs.6,000/- for three

months. If the monthly income is taken at Rs.7,500/- then

the compensation under this head would work-out to

Rs.22,500/- (Rs.7,500x3).

15. Further it is evident that the Tribunal has not

awarded any compensation under the head of attendant

charges, conveyance and nourishment. It is evident that the

claimant was admitted in the hospital for 36 days and during

this period, some one ought to have attended him. Looking to

these aspects, the claimant is entitled for Rs.15,000/- under

the head of Conveyance, nourishment and attendant charges.

16. The records further disclose that implants are

inserted and the claimant is required to undergo an operation

for removal of implants. The Tribunal has not awarded any

compensation under the head of Future Medical Expenses.

Looking to the gravity and nature of injuries, and the present

cost, the claimant is entitled for Rs.25,000/- under this

head.

17. In the result, the claimant is entitled for total

compensation of Rs.4,73,000/- as under:

       Sl.      Particulars                     Amount (RS.)
       No.
        1       Loss of future income            1,75,000/-
        2       Pain and Suffering                 50,000/-
        3       Loss of Amenities                  30,000/-
        4       Medical expenses                 1,55,000/-
        5       Conveyance, attendant              15,000/-
                charges and nourishment
            6   Loss of income during laid-          22,500/-
                up period (Rs. 7,500x3)
            7   Future Medical Expenses            25,000/-
                                  Total          4,73,000/-
                Award of Tribunal                3,48,400/-
                Enhanced compensation            1,25,400/-

18. Considering these facts and circumstances, the

appeal needs to be allowed-in-part. Accordingly, I proceed to

pass the following:

ORDER

i. The appeal is allowed-in-part.

ii. The judgment and award dated 23.06.2016 passed by the III Additional Senior Civil Judge and MACT-XII, Vijayapura, in MVC No.1077/2014 is modified.

iii. The appellant/claimant is held entitled for total compensation of Rs. 4,73,000/- as against Rs. 3,48,400/- awarded by the Tribunal.

iv. The enhanced compensation of Rs.1,25,400/-

(Rs.4,73,000 - Rs.3,48,400) shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

v. Respondent No.3-Insurer is directed to deposit the enhanced compensation with interest accrued thereon within six weeks from the date of this judgment.

vi. On deposit, the entire enhanced compensation amount with accrued interest shall be released in favour of the appellant/claimant.

Sd/-

JUDGE

KGR*