M Anjinayya S/O M.Hanumanthayya vs Abdul Razak S/O Murtuzasab And Ors
2022 Latest Caselaw 9554 Kant

                               1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 24TH DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                  MFA No.31367/2013
                         C/W
                MFA No.31368/2013 (MV)

In MFA No.31367/2013:

BETWEEN:

M. Anjinayya S/o M. Hanumanthayya,
Age: 42 years, Occ: Business,
R/o H.No.7-2-54, Gajgarpet,
Raichur-584 101.
                                         ... Appellant

(By Smt. Vijayalaxmi, Advocate for
    Sri. Basavaraj R. Math, Advocate)

AND:

1.     Abdul Razak S/o Murtuzasab,
       Age: 36 years, Occ: Driver,
       R/o H.No.1-11-178/20,
       Nijalingappa Colony,
       Raichur-584 101.
2.     Vinod Kumar Singh S.H.
       S/o S. Haridaya Singh,
       Age: 43 years,
       Occ: Business & Owner of Car
       Bearing No.UP-14/BB-2083,
                                  2



       R/o Gaziyabad,
       Now residing at Plot No.5,
       Kallur Colony, Raichur-584 101.

3.     The Branch Manager,
       TATA AIG General Insurance Co. Ltd.,
       Peninsula Corporate Park, Nicholas,
       Piramal towers, 9th Floor,
       Ganapath Rao Kadam Marg,
       Lower Parel, Mumbai-400 031 (MS).
                                               ... Respondents

(Sri. Sanjay M. Joshi, Advocate for R3;
 V/O Dtd. 11.04.2014 notice to R1 & R2 is dispensed with)

       This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to modify the impugned judgment and
award dated 06.04.2013 passed by the MACT (FTC-I), Raichur
in MVC No.285/2012.

In MFA No.31368/2013:

BETWEEN:

Sanjeev S/o M. Anjinayya,
Age: 13 years, Occ: Student,
U/g of his natural mother
M. Haritha W/o M. Anjinayya,
Age: 37 years, Occ: Household,
R/o H.No.7-2-54, Gajgarpet,
Raichur-584 101.
                                                   ... Appellant

(By Smt. Vijayalaxmi, Advocate for
    Sri. Basavaraj R. Math, Advocate)

AND:

1.     Abdul Razak S/o Murtuzasab,
       Age: 36 years, Occ: Driver,
       R/o H.No.1-11-178/20,
                                 3



        Nijalingappa Colony,
        Raichur-584 101.
2.      Vinod Kumar Singh S.H.
        S/o S. Haridaya Singh,
        Age: 43 years,
        Occ: Business & Owner of Car
        Bearing No.UP-14/BB-2083,
        R/o Gaziyabad,
        Now residing at Plot No.5,
        Kallur Colony, Raichur-584 101.

3.      The Branch Manager,
        TATA AIG General Insurance Co. Ltd.,
        Peninsula Corporate Park, Nicholas,
        Piramal towers, 9th Floor,
        Ganapath Rao Kadam Marg,
        Lower Parel, Mumbai-400 031 (MS).
                                                   ... Respondents

(Sri. Sanjay M. Joshi, Advocate for R3;
 V/O Dtd. 23.07.2013 notice to R1 & R2 is dispensed with)

       This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to modify the impugned judgment and
award dated 06.04.2013 passed by the MACT (FTC-I), Raichur
in MVC No.286/2012.

      These appeals coming on for final hearing this day, the
Court delivered the following:

                          JUDGMENT

These two appeals are filed by the claimants against

the judgment and award dated 06.04.2013 passed by the

Motor Accident Claims Tribunal (FTC-I), Raichur

(hereinafter referred to as 'the Tribunal' for short) in MVC

Nos.285/2012 and 286/2012, seeking enhancement of

compensation.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by the before

the Tribunal.

3. The brief factual matrix leading to the case are

that, on 11.02.2012 at about 8.00 p.m., the claimants in

both the claim petitions were proceeding on a motor bike

bearing No.KA-36/S-8561 and the claimant in MVC

No.285/2012-Anjinayya was riding the motorcycle. At that

time, a car bearing Reg. No.UP-14/BB-2083 driven by its

driver came from opposite side in a rash and negligent

manner and dashed to the motor bike, due to which the

both the claimants fell down and sustained injuries. The

claimants contend that the accident in question is because

of actionable negligence on the part of the driver of the

offending vehicle. Hence, they filed a claim petition under

Section 166 of the M.V. Act before the Tribunal, claiming

compensation for the injuries sustained by them in the

said accident.

4. The Tribunal, after assessing the oral and

documentary evidence has allowed the claim petitions in

part and the claimant in MVC No.285/2012-Anjinayya was

awarded total compensation of Rs.1,38,000/-, while the

minor claimant in MVC No.286/2012-Sanjeev was awarded

compensation of Rs.93,000/- with interest at 6% p.a. from

the date of petition till realisation.

5. Being dissatisfied with the quantum of

compensation, the claimants have filed these appeals,

seeking enhancement.

6. Heard the arguments advanced by the learned

counsel for the appellants and the learned counsel for

respondent No.2-insurer in both the appeals. Perused the

records.

7. The learned counsel for the appellants would

contend that as regards the appellant in MFA

No.31368/2013 - minor, the disability was taken on lower

side and she would contend that disability is more than

20% and the evidence of treated doctor disclose that the

disability is 26% and hence, she would contend that the

claimant would be entitled for Rs.3,75,000/- as per the

decision of the Hon'ble Apex Court reported in (2014) 14

SCC 396 (Master Mallikarjun v. Divisional Manager,

National Insurance Company Limited and another).

8. The learned counsel would further contend that

as regards the claim filed by Anjinayya, who is appellant in

MFA No.31367/2013, his income was not taken properly

and loss of future income was not awarded. As such, she

would seek for enhancement of the compensation.

9. Per contra, learned counsel for respondent

No.3-insurer would support the judgment and award

passed by the Tribunal contending that a reasonable

compensation is awarded by the Tribunal after properly

assessing the evidence on record.

10. Having heard the arguments and perusing the

records, there is no dispute of the fact that in the accident

dated 11.02.2012, both the claimants have suffered

injuries. It is also an undisputed fact that the offending

vehicle was covered by the insurance policy issued by

respondent No.3. Hence, the liability is unchallenged.

Under such circumstances, now the only point to be

considered is regarding enhancement.

11. As regards the appellant - Sanjeev in

MFA No.31368/2013 (claimant in MVC No.286/2012) is

concerned, the main contention raised by the learned

counsel for the appellant is that, the disability given by the

treated doctor is at 26% to the whole body. In this regard,

she has invited the attention of the Court to Ex.P91. No

doubt, the treated doctor has deposed regarding the

disability to the whole body to the extent of 26%, but

however, he did not disclose regarding the disability to the

particular limb. Apart from that, on perusal of the disability

certificate, it is evident that Dr. Sridhar Reddy is an

Orthopedic Surgeon. He has assessed the disability to the

limb to the extent of 10% and he has assessed the dental

disability to the extent of 30%. He is not a Dentist and

what is the base for him to assess the dental disability to

the extent of 30% is not at all forthcoming. Under such

circumstances, the Tribunal has rightly rejected the

disability given by the doctor and has taken the disability

at 5%. Even if the disability is taken around 26% to limb,

when it is compared to the whole body disability, it will be

less than 10%.

12. In view of the decision relied upon by the

learned counsel for the appellant themselves in Master

Mallikarjun's case (Supra), when the disability in case of

a minor is upto 10%, the compensation normally shall be

awarded at Rs.1,00,000/-, unless there are exceptional

circumstances to take different yardstick. Admittedly, in

the instant case, no exceptional circumstances are

forthcoming so as to take a different yardstick. Under such

circumstances, as per the said decision, the minor claimant

in MVC No.286/2012-Sanjeev (appellant in MFA

No.31368/2013) is entitled for a global compensation of

Rs.1,00,000/- under different heads. But, at the same

time, Exs.P92 to P94 disclose that the claimant has also

spent Rs.13,750, Rs.5,500 and Rs.30,000/- towards

treatment. Hence, apart from the global compensation of

Rs.1,00,000/-, the claimant is also entitled for Rs.49,250/-

under the head of medical expenses.

13. Hence, the appellant in MFA No.31368/2013

(arising out of MVC No.286/2012) is entitled for total

compensation of Rs.1,49,250/- along with interest at 6%

p.a. as against Rs.93,000/- awarded by the Tribunal.

14. As regards the appellant in

MFA No.31367/2013 (claimant in MVC No.285/2012) is

concerned, the Tribunal has awarded a total compensation

of Rs.1,38,000/-. Though it is argued that the loss of

future income was not taken into consideration, the

Tribunal has discussed this aspect in detail in the judgment

and observed that no evidence is placed to show that the

shop was closed during this period and there is any loss of

income subsequently. Hence, the Tribunal is justified in

rejecting the claim pertaining to loss of future income.

15. However, the Tribunal has awarded

compensation of Rs.25,000/- under the head of pain and

suffering, which appears to be on the lower side and the

claimant is entitled for Rs.30,000/- under the said head.

16. Further, under the head of loss of amenities,

the Tribunal has awarded Rs.5,000/-, which is also on the

lower side and the claimant is entitled for Rs.20,000/-

under the said head.

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

the head of loss of income during laid up period and it

requires a marginal enhancement. Hence, I propose to

award a sum of Rs.20,000/- under the said head.

18. The medical bills at Exs.P9 to P52 disclose that

he has spent Rs.93,000/- towards medical expenses and

the Tribunal has awarded the same, which does not call for

any interference.

19. Further, under the head of attendant charges,

conveyance and nourishment, the claimant is entitled for

Rs.10,000/-.

20. As such, the claimant is entitled for total

compensation under various heads as under:

   Sl.No.      Heads                          Amount
   1.          Pain and suffering             Rs.30,000/-
   2.          Loss of amenities              Rs.20,000/-
   3.          Medical expenses               Rs.93,000/-
   4.          Attendant          bcharges,   Rs.10,000/-
               conveyance & nourishment
   5.          Loss of income during laid     Rs.20,000
               up period
               Total                          Rs.1,73,000/-

Hence, the appellant in MFA No.31367/2013 is

entitled for total compensation of Rs.1,73,000/- with

interest at 6% p.a. as against Rs.1,38,000/- awarded by

the Tribunal.

21. Under these circumstances, both the appeals

needs to be allowed in part. Accordingly, I proceed to pass

the following:

ORDER i. Both MFA Nos.31367/2013 and 31368/2013 are allowed in part.

ii. The impugned judgment and awards dated 06.04.2013 passed by the Tribunal in MVC Nos.285/2012 and 286/2012 are hereby modified.

iii. The appellant in MFA No.31367/2013/claimant in MVC No.285/2012 is held entitled for total compensation of Rs.1,73,000/- as against Rs.1,38,000/- awarded by the Tribunal.

iv. The appellant in MFA No.31368/2013/claimant in MVC No.286/2012is entitled for total compensation of Rs.1,49,250/- as against Rs.93,000/- awarded by the Tribunal.

v. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realisation.

vi. Respondent No.3-insurer is directed to deposit the enhanced compensation in both the appeals within six weeks from the date of this judgment.

vii. The entire enhanced compensation in MFA No.31367/2013 shall be released in favour of the appellant/claimant.

viii. As regards the appellant in MFA No.31368/2013 i.e., minor claimant-Sanjeev, the entire enhanced compensation shall be kept in Fixed Deposit in any Nationalised Bank for a period of three years.

Sd/-

JUDGE LG