Sri.Shaik Saifan S/O Khasimsab ... vs Md.Burhanuddin S/O Nabisab And ...
2022 Latest Caselaw 4184 Kant

                            1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF MARCH, 2022

                        BEFORE


     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


              MFA No.200680/2016 (MV)

Between:

Sri Shaik Saifan S/o Khasimsab Shaik,
Age: 49 years, Occ: Business and Mechanic
Now Nil, R/o Milath Nagar
Near Noor-E-Elahi Masjid
Gulbarga.
                                             ... Appellant
(By Sri P. S. Kumman, Advocate)
And:

1.   Md. Burhanuddin S/o Nabisab,
     Age: 39 years, Occ: Owner of vehicle,
     R/o Millath Nagar
     Gulbarga-585 103.

2.   United India Insurance Company Ltd.
     Through its Divisional Manager,
     PB No.51, Jawali Complex, 1st Floor,
     Super Market, Gulbarga-585 103.
                                          ... Respondents
(By Smt.Anuradha M.Desai, Advocate for R2;
Notice to R1 is dispensed with v/o dtd. 10.08.2016)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicle Act, praying to allow the above
Misc. First appeal and consequently be pleased to modify
the judgment and award dated 04.02.2016 passed by the
learned II Addl. Senior Civil Judge & MACT at Kalaburagi in
MVC No.1127/2012 and enhance the compensation to
meet the ends of justice and equity.


      This appeal coming on for admission, this day, the
Court delivered the following:-

                        JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as 'the

Act', for short) by the claimant aggrieved by the

judgment dated 04.02.2016 passed in MVC

No.1127/2012 by the II Additional Senior Civil Judge

and Motor Accident Claims Tribunal, Kalaburagi

(hereinafter referred to as 'the Tribunal' for short).

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 29.05.2011, the petitioner was

going to Millath Nagar, from Humnabad ring road in

Auto bearing registration No.KA-32/9982. At that time,

the auto driver was driving the same in high speed and

in rash and negligent manner and dashed the auto to

the divider of the road. Due to the accident, the

petitioner fell down from the auto and sustained

grievous injuries and he was admitted to Dr.P.G.Shah

Hospital at Kalaburagi. The petitioner has spent huge

amount for medical expenses.

3.1 The petitioner has filed the petition under

Section 166 of the Act seeking compensation of

Rs.21.00 lakhs along with interest for the injuries

sustained in the road traffic accident.

3.2. Respondent No.2 filed written statement

denying the averments made in the claim petition.

Hence, sought for dismissal of the petition.

4. On the basis of the pleadings of the parties,

the Claims Tribunal framed the following issues:

"i. Whether the petitioner proves that, the accident dated 29.05.2011 at about 8.30 pm has taken place due to rash and negligent driving of Auto Rickshaw bearing registration No.KA-32/9982 by its driver and due to impact, he sustained injuries? ii. Whether the petitioner is entitled for compensation? If so, how much and from whom?

iii. What order or award?"

5. The petitioner in order to prove his case,

examined himself as P.W.1 and in order to prove the

disability, examined the doctor as P.W.2 and got

exhibited documents namely Ex.P.1 to Ex.P.26. On

behalf of the respondent No.2, the Administrative Officer

was examined as RW.1 and marked two documents at

Ex.R.1 and R.2. The Tribunal, after recording the

evidence and after considering the material on record,

by the impugned judgment, held that the petitioner has

proved that the accident took place on account of rash

and negligent driving of the offending vehicle by its

driver, as a result of which, the petitioner sustained

injuries and the petitioner is entitled for compensation

and consequently allowed the claim petition and

awarded compensation of Rs.1,31,400/- with interest at

6% per annum from the date of petition till realization.

The Tribunal further held that the respondent Nos.1 and

2 being owner and insurer are liable to pay

compensation jointly and severally and directed the

respondent No.2 to deposit the compensation amount

along with interest. Being dissatisfied with the

compensation awarded by the Tribunal, the petitioner

has filed the present appeal seeking for enhancement of

compensation amount.

6. Heard the learned counsel for the petitioner

and the learned counsel for the respondent No.2.

7. The learned counsel for the petitioner

submits that the petitioner met with an accident and

sustained injuries and suffered permanent disability. In

order to prove the disability, examined the doctor as

P.W.2 who has opined that the petitioner is having

permanent disability at 10% to the whole body. But the

Tribunal has taken the permanent disability at 5% which

is on the lower side. He further submits that the Tribunal

has taken notional income of the petitioner at Rs.5,000/-

p.m. which is on a lower side and he further submits

that the Tribunal has failed to award compensation

under the head loss of income during the laid up period

and loss of amenities, future medical expenses. Hence,

he submits that the compensation awarded by the

Tribunal is on the lower side and hence prays to allow

the appeal.

8. Per contra, learned counsel for respondent

No.2, Insurance Company supports the impugned

judgment and award passed by the Tribunal. She

further submits that the compensation awarded by the

Tribunal is just and proper. Hence, sought for dismissal

of the appeal.

9. Perused the records and considered the

submissions of the learned counsel for the parties.

10. The point that arises for consideration is with

regard to quantum of compensation.

11. It is not in dispute that the petitioner met

with an accident and sustained injuries. It is also not in

dispute that the petitioner has suffered permanent

disability. In order to prove the disability, the petitioner

examined the treated doctor as P.W.2 who has opined

that the petitioner has suffered permanent disability to

the whole body at 10% and 40% to the limb. The

Tribunal assessed the disability at 5% which is on the

lower side. This Court considering the evidence of doctor

and disability certificate issued by P.W.2, reassess the

permanent disability at 8% which is just and proper.

12. The petitioner contended that he was

working as mechanic and was earning Rs.24,000/- per

annum. The petitioner has not produced any evidence

with regard to his income. Therefore, the notional

income has to be assessed as per the guidelines issued

by the Karnataka State Legal Services Authority. Since

the accident has taken place in the year 2011, the

notional income has to be taken at Rs.6,000/- p.m. The

petitioner was aged about 52 years at the time of the

accident and multiplier applicable to his age group is

'11'. The whole body disability is taken at 8%. Thus,

the petitioner is entitled for compensation of

Rs.63,360/- (Rs.6,000/- x 12 x 11 x 8%) on account of

'loss of future income'.

13. Considering the nature of injuries sustained

by the petitioner and also the evidence of P.W.2, this

Court reassess the compensation awarded under the

following heads:

Particulars Compensation Compensation awarded by awarded by the Tribunal this Court Loss of future Rs.24,000/- Rs.63,360/- income Medical Rs.80,000/- Rs.1,67,500/- expenses Pain and Rs.20,000/- Rs.30,000/- suffering Attendant's Rs.7,400/- Rs.25,000/- charges and nourishment Loss of income ....... Rs.19,500/-

     during laid up
     period
     Loss of                       ........        Rs.25,000/-
     amenities
     Future medical                .........         Rs.25,000/-
     expenses
     Total:              Rs.1,31,400/-     Rs.3,55,360/-

             Enhanced by this Court        Rs.2,23,960/-



     Thus,    the     petitioner   is     entitled    to   a   total

compensation        of      Rs.3,55,360/-            as    against

Rs.1,31,400/-.

14. In view of the above discussion, I proceed

to pass the following:

ORDER

i. The appeal is allowed in part.

            ii.    The     judgment        and     award
      passed       by    the    Tribunal      in     MVC
      No.1127/2012        dated       04.02.2016,       is

modified. The petitioner is entitled to an enhanced compensation of Rs.2,23,960/- along with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization.

            iii.   Respondent       No.2,    Insurance
      Company       is   directed     to   deposit     the
      enhanced      compensation       amount        along

with interest, within a period of eight weeks from the date of receipt of copy of this judgment.

Sd/-

JUDGE

VNR