Karnataka High Court

T.E. Shivakumar vs C.K. Moula Sharief on 21 November, 2022

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 21ST DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.NO.5064/2013 (MV-I)

BETWEEN:

T.E. SHIVAKUMAR
S/O. E. ESWAR
AGED ABOUT 32 YEARS
R/AT THOOBINAKERE VILLAGE
MADDUR TALUK
MANDYA DISTRICT-571401.                        ...APPELLANT

               (BY SRI S.S.HAVERI, ADVOCATE)

AND:

1.     C.K. MOULA SHARIEF
       AGE: MAJOR
       S/O. MAHABOOB SAB
       NO. 786, JULAPALYA VILLAGE
       BAGEPALLI TALUK
       CHIKKABALLAPURA DISTRICT-562 101.

2.     RELIANCE GENERAL INS. CO. LTD.,
       NO. 28, EAST WING, 5TH FLOOR,
       CENTENARY BUILDING, M.G.ROAD
       BENGALURU-560 001
       REPRESENTED BY ITS MANAGER

3.     THE MANAGER
       NEW INDIA ASSRUANCE CO. LTD.,
       NO. 327/5, 2ND FLOOR
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      INDOLEM HOUSE, MYSURU ROAD
      BENGALURU-560 098.

4.    T.E. HARISH
      S/O. E. ESHWARAPPA
      AGED 32 YEARS
      R/AT NO. 6, 2ND CROSS
      BYREVESHWARANAGAR
      NAGARABHAVI
      BENGALURU-560 072.                    ... RESPONDENTS

            (BY SRI H.C.BETSUR, ADVOCATE FOR R2;
               R1 IS SERVED & UNREPRESENTED;
                VIDE ORDER DATED 22.08.2016,
            NOTICE TO R3 & R4 IS DISPENSED WITH)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 25.06.2011
PASSED IN MVC NO.3140/2009 ON THE FILE OF THE 13TH
ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF
SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel, it is taken up for final

disposal.

Heard the learned counsel for the appellant and learned

counsel for respondent No.2-Insurance Company.

This appeal is filed challenging the judgment and award

dated 25.06.2011 passed in M.V.C.No.3140/2009 on the file of

the Motor Accident Claims Tribunal, Court of Small Causes at

Bengaluru ('the Tribunal' for short).

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case of the claimant before

the Tribunal is that he met with an accident. As a result, his

right leg was amputated below the knee. In order to

substantiate his contention, he examined himself as P.W.1 and

examined the Doctors as P.W.3 and P.W.2, who assessed the

disability to particular limb at 75% and 35% to whole body.

4. The Tribunal, after considering both oral and

documentary evidence placed on record, awarded compensation

of Rs.9,82,800/- with interest at 6% per annum. Hence, the

present appeal is filed by the claimant.

5. The main contention of the learned counsel for the

claimant is that the Tribunal committed an error in taking the

disability at 60%. Though he has suffered comminuted fracture

of right tibia and fibula with vascular deficit artillery injury of the

knee joint injury to popliteal artery injury, amputation of right

knee, fracture of left parasymphysis of the mandible, operation

and open reduction and internal fixation of mandible. He has

also suffered head injury of right frontal contusion and

pneumocephalus, diffuse cerebral edema, right frontal and

temporal fracture, the Tribunal has taken the disability only in

respect of the limb and not taken the disability in respect of the

head injury. Hence, it requires interference of this Court.

6. Per contra, learned counsel for the respondent No.2-

Insurance Company would submit that the disability taken by the

Tribunal at 60% is on the higher side and it is an amputation

below the knee and not above the knee and the very contention

of the learned counsel for the appellant that the Tribunal ought

to have taken the functional disability and not considered loss of

vision cannot be accepted. It is also contended that, with regard

to loss of vision, no material is placed before the Tribunal and

the same is also not proved.

7. Having heard the respective counsel and also on

perusal of the material available on record, the wound certificate

which is marked as Ex.P5 discloses that he had suffered

comminuted fracture of right tibia and fibula with vascular deficit

artillery injury, fracture of left parasymphsis of mandible and

partial loss of vision in both the eyes, head injury and other

grievous injuries and immediately, he was shifted to Maddur

Government Hospital and thereafter, he was taken to Sparsh

Hospital, wherein he was inpatient from 09.02.2009 to

10.03.2009 almost for a period of one month and he has

undergone surgery for the disability. Having taken note of the

fact that he has suffered comminuted fracture of tibia and fibula

and subsequently, amputation was also done below the knee and

also considering the head injury sustained by the claimant,

though the Doctor assessed the disability at 75% to right lower

limb and 35% to whole body, the Tribunal reassessed the

disability to the extent of 60% and by taking note of the

functional disability of a person, who is gainfully employed for

agriculture, I do not find any error committed by the Tribunal in

taking the disability at 60% in a case of amputation below the

knee. However, the Tribunal committed an error in taking the

income at Rs.4,500/- per month. It is the accident of the year

2009 and the notional income would be Rs.5,000/- per month.

     8.    The   Apex    Court   in   the   recent   judgment   in

ERUDHAYA      PRIYA     v.   STATE     EXPRESS       TRANSPORT

CORPORATION LTD. reported in 2020 SCC Online SC 601, in

a case of 31 % disability, has added future prospects. Here is a

case of disability to the extent of 60%. Having considered the

nature of injuries sustained by the claimant and the fact that he

is aged about 28 years, future prospects at 40% is to be added

to the notional income of Rs.5,000/- per month. After adding

the same, the income comes to Rs.7,000/- per month. Hence,

taking the income at Rs.7,000/- per month, disability at 60%

and the relevant multiplier of '17', a sum of Rs.8,56,800/-

(7,000 x 12 x 17 x 60/100) is awarded towards loss of future

income.

9. The Tribunal awarded Rs.70,000/- towards pain and

suffering. Considering the nature of the injuries sustained by

the claimant and the fact that he was inpatient for a period of

one month, it is appropriate to award Rs.75,000/- as against

Rs.70,000/- awarded by the Tribunal.

10. The Tribunal awarded Rs.27,000/- on the head of

loss of income during laid up period. This Court having taken

the notional income at Rs.5,000/- per month and he was

inpatient for a period of one month and considering the nature of

injuries sustained by the claimant, laid up period is considered

as 6 months and a sum of Rs.30,000/- (5,000 x 6) is awarded as

against Rs.27,000/- awarded by the Tribunal.

11. The Tribunal has awarded Rs.50,000/- on the head

of loss of amenities. Having considered the fact that the

claimant is aged about 28 years and the disability to the extent

of 60% and the fact that he has to lead rest of his life with the

disability of 60%, a sum of Rs.1,00,000/- is awarded towards

loss of amenities.

12. The Tribunal awarded Rs.20,000/- on the head of

future medical expenses. When his limb is amputated, he is in

need of artificial limb and he has to lead rest of his life with the

artificial limb, it is appropriate to award Rs.1,00,000/- on the

head of artificial limb.

13. The Tribunal has awarded Rs.2,65,000/- towards

medical expenses which is based on the documentary evidence.

Hence, it does not require any interference. Therefore, in all,

the claimant is entitled for compensation of Rs.14,26,800/- as

against Rs.9,82,800/- awarded by the Tribunal.

14. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The impugned judgment and award of the Tribunal dated 25.06.2011 passed in M.V.C.No.3140/2009, is modified granting compensation of Rs.14,26,800/- as against Rs.9,82,800/- with interest at 6% per annum from the date of petition till deposit, excluding

the interest for the delayed period of 502 days in filing the appeal, vide order dated 29.08.2016 passed by this Court.