Karnataka High Court
Mohammed Athiq vs Rafiq on 26 May, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.1933/2014 (MV)
BETWEEN:
MOHAMMED ATHIQ,
S/O BASHA SAB,
AGED ABOUT 30 YEARS,
R/O THAMMADIHALLI,
SHIMOGA TALUK
... APPELLANT
(BY SRI. SATEESH CHANDRA K.V., ADVOCATE)
AND:
1. RAFIQ,
S/O BASHA SAB, MAJOR,
R/O THYAVAREKOPPA,
SIRIGERE POST,
SHIMOGA TALUK-577201,
OWNER OF MARUTHI OMNI
VEHICLE BEARING REGD.
NO.KA-03/A-3745.
2. FAIROZ,
S/O MOHAMMED ANWAR,
AGED ABOUT 30 YEARS,
R/O NEW MANDLI,
SHIMOGA, PIN-577203,
DRIVER OF MARUTHI OMNI VEHICLE,
BEARING REGN. NO.KA-03/A-3745
3. THE UNITED INDIA INSURANCE
COMPANY LIMITED, SHIMOGA-577202.
2
4. AFROZ
S/O WAJID KHAN,
AGED ABOUT 28 YEARS,
MECHANIC, OWNER OF OMNI
VEHICLE,
BEARING REGN. NO.KA-03/A-3745,
R/O SIDDESHWARA CIRCLE,
LAXMI CLINIC, OPPOSITE GOPALA,
SHIMOGA-577201.
... RESPONDENTS
(BY SRI M.V. POONACHA, ADVOCATE FOR R3,
NOTICE TO R1 & R2 IS DISPENSED WITH V/O
DTD.08/01/2015,
NOTICE TO R4 IS DISPENSED WITH V/O
DTD: 22/10/2021)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:21.10.2013 PASSED IN MVC NO.213/2012 ON THE
FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE & AMACT-
2, FAST TRACK COURT, SHIMOGA PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the
Motor Vehicles Act, by the appellant-petitioner challenging
the judgment and award dated 21.10.2012, passed in MVC
No.213/2012, on the file of Fast Track Court and II
Addl.MACT and District Judge, Shivamogga, (hereinafter
referred to as 'the Tribunal' for brevity) seeking
enhancement.
Brief facts:
2. On 28.04.2011, the petitioner was riding a
motorcycle bearing registration No.KA-14/W-4946,
alongwith another person. When they were nearing
Manjappa's Garden Farm House at Sirigere, a Maruthi
Omni Vehicle bearing registration No.KA.03/3745, driven
by the second respondent came in opposite direction to the
motorcycle and dashed to the motor cycle. Due to the
accident, the appellant suffered serious injuries. The
appellant was hospitalized and underwent surgery.
3. Hence, a claim petition was filed by the
appellant under Section-166 of the M.V. Act, claiming
compensation in a sum of Rs.23,00,000/- for the injuries
sustained in the accident. The Tribunal on appreciating the
materials on record, allowed the petition in part, and
awarded a compensation of Rs.4,89,000/- along with
interest at 6% per annum from the date of petition till the
date of deposit. The Tribunal held respondent Nos.1 and 2
therein, jointly and severally liable to pay the
compensation.
4. Heard arguments of the learned counsel for the
appellant and the learned counsel for respondent No.3 -
insurance company and perused the materials on record.
5. The learned counsel for the appellant
submitted that the quantum of compensation awarded
under each head is inadequate and not sufficient.
Therefore, prays for enhancement of the compensation.
6. The learned counsel appearing for the
appellant / petitioner submitted that the amount of
compensation awarded on each head by the Tribunal is
inadequate and not sufficient. Therefore, prays for
enhancement of the same. It is submitted that the income
held by the Tribunal at Rs.4,500/- per month is on the
lower side. Considering the fact that the appellant is owner
of flourmill and also produced the flourmill licence.
Therefore, it is submitted that he was earning Rs.10,000/-
per month. That ought to have been taken into
consideration. Therefore, prays for enhancement of
compensation.
7. Further, the learned counsel for the appellant
submitted that the disability taken by the Tribunal at 11%
is not correct. Since the appellant had suffered injury and
disability to both jaws and teeth and also fracture of Hip
including leg. Therefore, assessment of disability of
diminishing strength of muscle is not considered by the
Tribunal. Therefore, if considered appropriately, the
percentage of disability would have been on higher side.
Hence, the learned counsel prays the Court to hold the
functional disability at 30% and to award compensation
under the head 'loss of earning capacity' accordingly.
Further, submitted that the compensation awarded under
other heads are also not correct. Therefore, prays for
enhancement of the compensation.
8. On the other hand, the learned counsel
appearing for respondent No.3 - insurance company
submitted that the amount of compensation awarded on
each head by the Tribunal is correct and appropriate.
Therefore, submitted that there is no ground to make
interference in the judgment and award passed by the
Tribunal. Therefore, prays to dismiss the appeal.
9. The Tribunal has awarded compensation under
various heads as follows:
1. Pain and Sufferings : Rs. 40,000/-
2. Medical Expenses : Rs. 2,15,000/-
3. Conveyance, Nutrition and other : Rs. 20,000/-
incidental expenses
4. Loss of Earning during Laid up period : Rs. 18,000/-
for 4 months.
5. Loss of Amenities : Rs. 20,000/-
6. Loss of Future Earning Capacity : Rs. 1,01,000/-
7. Replacing surgery & future surgery : Rs. 75,000/-
TOTAL : Rs. 4,89,000/-
10. Exhibit-P6 is the Wound Certificate, which
reveals that the appellant had suffered the following
injuries:
"i) Fracture of right acetabulum and;
ii) Pan facial fracture;
iii) Shortening of right leg at 2.5 cms;
iv) And undergone two surgeries."
11. PW-3, Doctor in his evidence had deposed that
the appellant suffered 32% disability towards right leg and
the Tribunal while assessing to the whole-body disability
has taken 1/4th of the 32% and accordingly held that the
appellant suffered 11% functional disability, towards whole
body and considered income at Rs.4,500/- per month. But
considering the year of the accident occurred during 2011,
as per the chart of KARNATAKA STATE LEGAL
SERVICES AUTHORITIES, and also considering the fact
that the appellant is a flour mill licensee as per Exhibit-
P33. Therefore, under these circumstances, the notional
income of Rs.6,500/- per month is to be taken into
consideration.
12. Further, the PW-3, Doctor even tough had held
the appellant had suffered 32% permanent disability, but
has not stated the diminishing strength of the muscle due
to the accident, which also causes disability, since the
appellant had suffered fracture to the teeth jaws and also
future of Hip and right leg, therefore it is difficult for the
appellant to continuously stand in the flour mill to do work
in the flour mill. Therefore, certainly it affects the earning
capacity of the appellant. Therefore, even though the
Tribunal has held 1/3rd of 32% i.e., 11% disability is to be
taken into consideration. But it has not considered the
nature of avocation of the appellant and the diminishing
strength of muscle. Therefore, this Court is of the opinion
that 20% of functional disability is to be taken into
consideration that would be appropriate.
13. The appropriate multiplier applicable as per the
judgment of the Hon'ble Supreme Court, in the case of
Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn
And Another reported in AIR 2009 SC 3104, is '17',
since the appellant was aged 26 years at the time of
accident. Therefore, the compensation under the head
'Loss Of Future Earning Capacity' is recalculated and
quantified as follows:
Rs.6,500 x 20/100 x 17 x 12 = Rs.2,65,200/-
14. Therefore, the compensation of Rs.2,65,200/-
is awarded under the head 'Loss Of Earning During
Future Income' due to functional disability.
15. The compensation awarded by the Tribunal at
Rs.40,000/- under the head for the 'Pain And Suffering' is
not sufficient, considering the nature of injuries and
disability. Accordingly, it is enhanced to Rs.60,000/-
towards 'pain and suffering'. The amount awarded under
the head 'Medical Expenses And Hospitalization
Charge' at Rs.2,13,000/- is as per medical bills
produced Exhibit-P36, which requires no interference.
Accordingly, it is kept in tact.
16. Further, the Tribunal has awarded
Rs.20,000/- under the head 'Conveyance, Nutrition,
And Other Incidental Expenses'. From the records, it is
borne out that the appellant had to travel to Municipal
Hospital from Sirigere District for seven times. Therefore,
the amount awarded in inadequate. Accordingly, a
compensation of Rs.50,000/- is awarded under the head
'Conveyance, Transport, Nutrition, And Other
Incidental Expenses etc'.
17. Considering the injuries sustained the
appellant who was working in flourmill would not have
been able to work for atleast for a period of 4 months.
Therefore, the compensation towards 'loss of income
during laid up period' is assessed at Rs.26,000/-
(Rs.6,500 x 4).
18. As per Doctor's PW-3 evidence, the appellant
had suffered fracture of right leg and therefore shortening
of 2.5 cms. certainly it would affect his enjoyment of life.
Therefore, the compensation of Rs.40,000/- under the
head 'loss of amenities' as against the Rs.20,000/-
awarded by the Tribunal.
19. Further, the compensation of Rs.75,000/-
towards 'future medical expenses' by the Tribunal which is
inadequate. Considering the nature of injuries sustained,
the doctor had opined that a further sum of Rs.1,35,000/-,
would be required for Hip Joint replacement surgery in the
future. Therefore, towards 'future medical expense' for
replacement of Hip joint a sum of Rs.1,00,000/- is
award.
20. Hence, the appellant is entitled for a total
enhanced compensation, under various heads as follows:
1. Pain and Sufferings : Rs. 60,000/-
2. Medical Expenses : Rs. 2,13,000/-
3. Conveyance, Nutrition and other : Rs. 50,000/-
incidental expenses
4. Loss of Earning during Laid up period : Rs. 26,000/-
(Rs.6,500 x 4)
5. Loss of Amenities : Rs. 40,000/-
6. Loss of Future Earning Capacity : Rs. 2,65,200/-
7. Replacing surgery & future surgery : Rs. 1,00,000/-
TOTAL : Rs. 7,54,200/-
21. Therefore, the appellant is awarded a total
compensation of Rs.7,54,200/- as against the
compensation awarded by the Tribunal at Rs.4,89,000/-.
Hence, the appellant is entitled for an additional
compensation of Rs.2,65,200/- (Rs.7,54,200 -
Rs.4,89,000), along with interest at 6% per annum from
the date of filing of the petition till deposit.
22. Accordingly, I pass the following:
ORDER
i. The appeal is allowed in part.
ii. The appellant is entitled for an additional
compensation of Rs.2,65,200/- (Rupees
Two Lakh Sixty Five Thousand Two
Hundred Only), along with interest at 6% per
annum from the date of filing of the petition till
deposit in addition to what has been awarded
by the Tribunal.
iii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court
forthwith without any delay.
iv. Draw award accordingly.
Sd/-
JUDGE
JJ
