Karnataka High Court
Shivayogi S/O Fakkirappa Warati vs Riyazhamed S/O Shabudin Sab ... on 27 June, 2022
Bench: P.Krishna Bhat
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MFA No. 23640 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO. 23640 OF 2010 (MV-I)
BETWEEN:
SHIVAYOGI S/O FAKKIRAPPA WARATI,
AGE: 32 YEARS, OCC: NOW-NIL,
R/O ALADAKATTI,
TQ AND DIST: HAVERI, 581110
...APPELLANT
(BY SRI. N P VIVEKMEHTA, ADVOCATE)
AND:
1. RIYAZHAMED S/O SHABUDIN SAB MUBARAK
O/C. OWNER OF VEHICLE NO. KA-25/8333,
MAHENDRA,
R/O TILAVALLI, TQ. HANGAL,
DIST. HAVERI - 581104.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
A.M. ARCADE, C. J. HOSPITAL ROAD,
Digitally signed DAVANGERE-577001
by SUJATA
SUBHASH
PAMMAR ...RESPONDENTS
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD
(BY SRI. RAVINDRA R MANE, ADV., FOR R2:
Date:
2022.06.28 R1 NOTICE SERVED)
09:50:47
+0530
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 18.03.2010 PASSED IN MVC NO.267/2009 ON THE FILE
OF THE DISTRICT JUDGE, M.A.C.T., (FAST TRACK) AT HAVERI,
-2-
MFA No. 23640 of 2010
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY.
THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
This appeal is at the instance of the claimant seeking
enhancement of the compensation awarded in MVC
No.267/2009 by the learned District Judge and M.A.C.T.,
(Fast Track) at Haveri (for short "the Tribunal") dated
18.03.2010.
2. Brief facts are that on 03.09.2005 at about 9.15
a.m., when the appellant was proceeding on his bicycle on
Haveri-Hanagal road, the offending Mahindra Tempo bearing
registration No.KA-25/8333 came from Hanagal side with its
driver driving it in a rash and negligent manner and in high
speed and dashed against the bicycle resulting in grievous
injuries to the claimant.
3. On the claim petition being filed, both the
respondents resisted the claim petition by filing their
respective statement of objections.
MFA No. 23640 of 2010
4. During trial, the claimant examined himself as
PW1 and examined a medical expert as PW2 and Ex.P1 to
Ex.P15 were marked. Respondents did not examine any
witnesses. No documents were also marked.
5. After hearing the learned counsel on both sides
and perusing the records, the claim petition was allowed in
part awarding a compensation of Rs.1,15,200/- with interest
thereon at 6% per annum from the date of petition till the
date of payment.
6. Learned counsel for the appellant-claimant
contended before me that even though the claimant suffered
serious injuries of shoulder dislocation, which is not been
cured even as on date in spite of taking the best available
treatment, the learned Tribunal has awarded a lower
compensation and in the facts and circumstances, the appeal
is required to be allowed by enhancing the compensation
awarded.
7. Per contra, learned counsel for the Insurance
Company contended before me that the learned Tribunal on
MFA No. 23640 of 2010
an entire appreciation of the evidence, placed before it, has
awarded just and reasonable compensation and therefore,
there is no merit in the appeal and the same is liable to be
dismissed.
8. I have given my anxious consideration to the
submissions made on both sides and I have perused the
records.
9. The factum of occurrence of accident and the
negligence on the part of the driver of the offending vehicle
has not been disputed in this appeal.
10. Ex.P4 is the wound certificate produced before
the learned Tribunal. Ex.P8 is the discharge card issued by
KIMS Hospital, Hubli, which show that claimant-appellant
had suffered right shoulder attitude/contour of right shoulder
lost, deformity was present, tenderness was present,
restoration of movement at right shoulder, dugerous sign
present. The accident took place on 03.07.2005. This
discharge card was issued on 08.09.2005 at the time of his
discharge. He was admitted to the KIMS Hospital on
MFA No. 23640 of 2010
03.09.2005, the date of accident itself. Ex.P9 is the
discharge card issued by one Shivara Shivappa Memorial
Hospital, Hassan on 23.10.2005. The clinical history noted
therein was pain and swelling on right shoulder with
restriction of movements due to old dislocation of right
shoulder.
11. The learned Tribunal, upon consideration of the
entire evidence, has awarded Rs.25,000/- under the head
pain and sufferings. Taking into consideration the above
evidence placed on record, I am of the view that under the
head of pain and suffering Rs.35,000/- is required to be
awarded. Towards loss of amenities, the learned Tribunal has
awarded Rs.10,000/- and the same is required to be
maintained.
12. Under the head of medical and incidental charges
the learned Tribunal has awarded Rs.10,000/- The learned
counsel Sri. Vivek Mehta appearing for the claimant-
appellant strenuously contended that he has produced
various bills for the treatment taken by the claimant after
MFA No. 23640 of 2010
the learned Tribunal passed the award and the same
amounts to about Rs.82,559/-. According to him, the same
requires to be taken into consideration in this appeal. There
is absolutely no evidence to prima-facie establish that such
treatment was taken by the claimant in the said hospital and
he had incurred expenses for the same in connection with
the injuries suffered by him under the alleged accident on
03.09.2005 and therefore, it is not possible to accede to the
request of Sri. Vivek Mehata and therefore, I am of the view
that the said bills cannot be taken note of. Accordingly, the
sum of Rs.10,000/- awarded by the learned Tribunal is
maintained under the head of medical and incidental
charges.
13. For loss of earning during the laid-up period, the
learned Tribunal has awarded a sum of Rs.9,000/-. For the
year 2005, the notional income for a coolie is fixed at
Rs.3,500/- as per the chart prepared by the Karnataka State
Legal Services Authorities. Accordingly, the loss of income
during the laid-up period is required to be recomputed to
Rs.10,500/- (Rs.3,500 x 3 months).
MFA No. 23640 of 2010
14. The Tribunal has taken the age of the claimant at
the time of the accident as 28 years. Therefore, the
appropriate multiplier applicable is '17'. Upon detailed
consideration of the evidence of PW2, who had not treated
the claimant, the learned Tribunal has fixed the functional
disability (loss of earning capacity due to accidental injury)
at 10%. I am of the view that the assessment made by the
learned Tribunal is quite reasonable. Since claimant was
aged about 28 years, 40% of established income has to be
added under the head of 'loss of future prospects' as per the
decisions of the Hon'ble Supreme Court in Sandeep
Khanuja vs. Atul Dande1, Jagadish v. Mohan and
others2 and Erudhaya Priya v. State Express Transport
Corporation Limited3 and also the judgment rendered by
the Division Bench of this Court in MFA No.103807/2016
disposed on 27.05.2022. Accordingly, the claimant is entitled
to the recomputed compensation under the head of loss of
(2017) 3 SCC 351
(2018) 4 SCC 571
2020 SCC Online SC 601
MFA No. 23640 of 2010
earning capacity along with loss of future prospects as
follows:
Rs.3,500 + Rs.1,400 (40% future prospects) = Rs.4,900/-
Rs. 4,900 x 12 (months) x 17 (multiplier) x 10% (disability)
= Rs.99,960/-
Thus, in all the appellant-claimant is entitled to the
recomputed compensation, which is as follows:
HEAD AMOUNT
(in Rs)
Towards loss of earning capacity along with 99,960/-
future prospects
Towards loss of income during laid-up period 10,500/-
Towards medical and incidental charges 10,000/-
Towards pain and suffering 35,000/-
Towards loss of amenities 10,000/-
Total 1,65,460/-
15. In view of the above, the appeal is allowed in part
and the claimant is entitled to the total recomputed
compensation of Rs.1,65,460/- as against Rs.1,15,200/-
awarded by the Tribunal. The compensation awarded by the
Tribunal is enhanced by Rs. 50,260/-, which shall carry
interest @ 6% per annum from the date of petition till the
date of payment, which shall be deposited by the Insurance
MFA No. 23640 of 2010
Company within a period of eight weeks from the date of
receipt of certified copy of this order.
16. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
Registry to send back the records forthwith.
Sd/-
JUDGE
YAN
