Yallappa Gouda S/O Shekhar Gouda vs Shabbir S/O Usmansab
2022 Latest Caselaw 9828 Kant

                                1

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 28TH DAY OF JUNE 2022

                           PRESENT

THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                              AND

     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR


 MISCELLANEOUS FIRST APPEAL No.202038/2015 (MV)

Between:

Yallappa Gouda S/o Shekhar Gouda
Age: 45 years, Occ: Presently Nil
R/o: Bendre Nagar, New Jewargi Colony
Banjara Road, Kalaburagi-585 102
                                                    ...Appellant

(By Sri Harshavardhan R. Malipatil, Advocate)


And:

1.     Shabbir S/o Usmanasab
       Age: 42 years, Occ: Owner of the Vehicle
       Bearing No.KA-32-L-4741
       R/o: Itaga(K), Kalaburagi-585 102

2.     The Divisional Manager
       United India Insurance Co. Ltd.,
       Jawali Complex, Super Market
       Kalaburagi-585 102
                                                  ...Respondents

(By Smt Anuradha M. Desai, Advocate for R2;
    Notice to R1 dispensed with V/o dated 06.04.2017)
                                2

       This MFA is filed under Section 173(1) of MV Act, praying
to allow this appeal and enhance the compensation to
Rs.30,94,585/- (excluding the amount awarded by the tribunal)
along with interest by modifying the judgment and award of the
I Addl. Senior Civil Judge & MACT- Kalaburagi dated 11.05.2015
in MVC No.851 of 2012.

    This MFA is coming on for final hearing, this day,
SREENIVAS HARISH KUMAR J., delivered the following:

                          JUDGMENT

Heard Sri Harshavardhan R. Malipatil for the

appellant and Smt. Anuradha M. Desai, learned counsel for

respondent No.2.

2. This appeal is preferred by the claimant in MVC

No.851/2012 on the file of I Addl. Senior Civil Judge &

MACT, Kalaburagi. The appellant suffered fracture to his

right radius shaft in the motor vehicle accident that took

place on 20.04.2012 when was walking on the road. The

motorcycle bearing registration No.KA.32/L-4741

belonging to first respondent dashed from the opposite

direction and as a result he fell down and sustained

grievous injuries.

3. The appellant examined P.W.2, the treating

doctor to speak about the disability factor. According to

P.W.2, the disability was to the extent of 40% on account

of fracture to the right radius shaft. But the Tribunal, for

the purpose of calculating the compensation for loss of

future income, held the whole body disability as 13% and

granted an amount of Rs.1,31,040/- towards functional

disability considering the income of the appellant as

Rs.6,000/- p.m. Granting certain other amounts on

conventional heads, the Tribunal granted total

compensation of Rs.2,05,415/-.

4. Sri Harshavardhan R. Malipatil submits that

appellant is a contractor. While adducing evidence he

produced his income tax returns as per Ex.P.9. The

income tax return shows that during the assessment year

2011-12, the net income of the appellant was

Rs.4,85,650/-. This income should have been taken for

computing the compensation for functional disability.

Instead, the Tribunal considered the notional income of

Rs.6000/- per month and thus committed an error. In this

view, he argues for enhancing the compensation on the

head of loss of functional disability.

5. Smt. Anuradha M. Desai supported the award

of the Tribunal by arguing that the consideration of

notional income is correct. She prayed for dismissing the

appeal.

6. We have perused Ex.P.9 where the income of

the appellant is shown as Rs.4,85,650/-. But the Tribunal

did not consider Ex.P.9 for the reason that the appellant

did not produce any certificate to prove that he was a

contractor. Therefore the Tribunal considered the notional

income at Rs.6,000/- p.m.

7. Even if it can be presumed that the appellant

was a contractor and that as per Ex.P.9 his annual income

was Rs.4,85,650/-, we are of the opinion that the injury

sustained by the appellant on account of accident did not

have any impact on his earning capacity. It is highly

impossible to imagine that a fracture to right radius shaft

would come in the way of continuing the contractor's work.

We find that the appellant can be awarded a reasonable

amount for loss of amenities and for pain and suffering.

Since the insurance company has not filed any appeal, we

do not want to disturb the finding of the Tribunal in

granting Rs.1,31,040/- for the loss of future income.

However, we find that the amounts granted by the

Tribunal on other conventional heads namely, pain and

suffering, loss of amenities and enjoyment in life, and laid

up period may be increased. We find that an amount of

Rs.30,000/- can be granted towards pain and suffering and

Rs.25,000/- towards loss of amenities. Probably the

appellant could not have attended to his work for about six

months and in this view, the compensation to be paid on

the head, income during the period of treatment could be

increased Rs.40,000/- against Rs.18,000/-, awarded by

the Tribunal. Thus seen, the total compensation that the

appellant is entitled to, works out as under;

                    Heads                  Amount
     Towards pain and suffering            Rs.30,000/-
     Towards loss of amenities and         Rs.25,000/-
     enjoyment in life
     Towards loss of future income       Rs.1,31,040/-
     Towards medical expenses and          Rs.18,875/-
     incidental charges
     Towards attendant's charges, food,     Rs.2,500/-
     nourishment      and    conveyance
     expenses
     Towards loss of income during         Rs.40,000/-
     period of treatment
                                  Total Rs.2,47,415/-

8. Therefore we come to conclusion that the

appeal succeeds partially. The award of the Tribunal is

modified; the appellant in all is entitled to compensation of

Rs.2,47,415/- with interest @ 6% p.a. from the date of

petition till date of payment. The insurance company is

hereby directed to deposit the enhanced compensation

within a period of four weeks from today.

Sd/-

JUDGE

Sd/-

JUDGE BL