Smt. Jamilabi W/O Yasin Kazi vs The Managing Director
2022 Latest Caselaw 9876 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 29TH DAY OF JUNE 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.31044/2013 (MV)

BETWEEN:

SMT. JAMILABI W/O YASIN KAZI,
AGE: 52 YEARS,
OCC: EARLIER TAILORING WORK, NOW NIL,
R/O BABANAGAR, TQ. BIJAPUR,
DIST. BIJAPUR-586101.
                                           ... APPELLANT
(BY SRI. BASAVARAJ R.MATH, ADVOCATE)

AND:

THE MANAGING DIRECTOR,
MAHARASTRA ROAD TRANSPORT
CORPORATION,
SOLAPUR DIVISION,
SOLAPUR-413001. (MAHARASTRA STATE)
                                        ... RESPONDENTS

(BY SRI. M.A.KAKHANDKI & SRI.S.H.MANUR, ADVOCATES)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT
AND AWARD DATED 26.03.2012 PASSED BY THE MACT
NO.XII, BIJAPUR IN MVC NO.281/2011.

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

This appeal is filed by the claimant seeking

enhancement of compensation by challenging the judgment

and award dated 26.03.2012 passed by the MACT-XII,

Bijapur, in MVC No.281/2011.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the

Tribunal.

3. The brief factual matrix leading to the case are

that, on 20.03.2010 at about 2.00 p.m., the claimant was in

bus stand of Malshiras in order to board the bus. At that time,

the driver of MSRTC Bus bearing Registration No.

MH.12/EF.6795 drove same with very high speed and in rash

and negligent manner and lost his control over the bus and

dashed against the petitioner/claimant, due to which, the bus

ran over her leg. As a result, the claimant suffered fracture

of both the legs and her right leg above knee was amputated.

Immediately she was shifted to Government Hospital at Akluj,

wherein she was provided with first aid treatment and

thereafter, she was shifted to Sancheta Hospital at Puna for

higher treatment, where she underwent operation and she

spent more than Rs.2.00 Lakhs towards medical expenses. It

is contended that she was aged about 50 years and she was

doing tailoring work and was earning Rs.6,000/- p.m. Hence,

she contended that, due to accidental injuries, she is

permanently disabled and as such, she filed a claim petition

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

for short) claiming compensation of Rs.16.00 Lakhs.

4. The respondent-Maharashtra Road Transport

Corporation ('Corporation' for short) contested the matter

before the Tribunal and disputed the rash and negligent

driving on the part of the driver of the offending bus. It is

alleged that the claimant herself was negligent and hence,

sought for dismissal of the claim petition.

5. The Tribunal after assessing the oral and

documentary evidence, has awarded compensation of

Rs.3,95,700/- with interest at 6% p.a., from the date of

petition, till the date of payment. Being aggrieved by this

judgment and award, the claimant has filed this appeal

seeking enhancement.

6. Heard the arguments advanced by the learned

counsels appearing on both sides and perused the records.

7. There is no serious dispute of the fact that the

claimant has suffered accidental injuries in the accident that

occurred on 12.03.2010. The medical records produced also

clearly disclose that her right leg above the knee was

amputated and she has also suffered fracture of 5th toe of left

leg. The Medical Officer has assessed the disability at 80%.

But, the Tribunal has taken the disability at 70%.

8. Further, the Tribunal has taken notional income of

the claimant at Rs.3,000/-. Admittedly, in respect of the

accidents occurred during the year 2010, this Court is

consistently taking the notional income at Rs.5,500/-. Hence,

the Tribunal has erred in taking the income of the claimant at

Rs.3,000/-, which is on lower side.

9. The Tribunal has taken the disability of the

claimant at 70% and awarded compensation. However, it is

important to note here that the claimant has suffered

amputation above the knee. Virtually it amounts to 100%

functional disability. Though the Doctor as per the medical

jurisprudence has assessed the disability to the extent of

80%, it is a fact that the claimant cannot do the normal work

as the amputation was above the knee coupled with fracture

of her great toe of left leg. Under these circumstances, the

disability taken by the Tribunal was on lower side. Hence,

considering the gravity of injury ie., amputation of right leg

above the knee the Tribunal ought to have taken the

functional disability at 100%. Though the claimant asserts her

age as 50 years, the medical records disclose that, she is

aged about 67 years as on the date of accident and as such,

the multiplier '5' is applicable in the instant case. Considering

all these aspects, the loss of future income would work-out to

Rs.3,30,000/- (Rs.5500x12x5x100%).

10. The Tribunal has awarded compensation of

Rs.50,000/- under the head of Pain and Suffering and

considering amputation of her right leg above the knee, it

appears to be on lower side. The Tribunal has also awarded

Rs.10,000/- under the head of Loss of Amenities, which is also

on lower side. Under these circumstances, under the head of

Pain and Suffering and Loss of Amenities, the claimant is

entitled for Rs.1,00,000/- each.

11. The Tribunal has awarded Rs.2,57,669/- towards

medical expenses, which is based on record and does not call

for interference.

12. In the result, the claimant would be entitled for

total compensation of Rs.7,87,669/- as under:

       Sl.   Particulars                          Amount (RS.)
       No.
        1    Loss of future income                3,30,000/-
        2    Pain and Suffering                   1,00,000/-
        3    Loss of Amenities                    1,00,000/-
        4    Medical expenses                     2,57,669/-
                               Total              7,87,669/-

13. 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 26.03.2012 passed by the MACT-XII, Bijapur, in MVC No.281/2011 is modified.

iii. The appellant/claimant is held entitled for total compensation of Rs.7,87,669/- as against Rs.3,95,700/- awarded by the Tribunal.

iv. The enhanced compensation of Rs.3,91,969/-

(Rs. 7,87,669/- - Rs.3,95,700) shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

v. Respondent-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*