Karnataka High Court
Mrutyunjaya S/O Irappa Hasabi vs Enrcon India Ltd on 14 September, 2022
Bench: H.P.Sandesh
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MFA No. 103394 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 103394 OF
2014 (MV-I)
BETWEEN:
1. MRUTYUNJAYA S/O IRAPPA HASABI
AGE: 29 YEARS, OCC: DRIVER CUM AGRI. NOW NILL,
R/O: HIRECHAKUNI, TQ: KUNDAGOL, DIST: DHARWAD
...APPELLANT
(BY SRI. HANAMANT R LATUR, ADVOCATE)
AND:
1. ENRCON INDIA LTD.,
PLOT NO.610611, R/O: SADODAR, TQ: JAMJODHPUR,
DIST: JAMNAGAR
STATE-GUJARAT-360520, NOW AT MANAGER, ENERCON
INDIA LTD., NEAR BUS STAND, SHIRAHATTI, TQ:
SHIRAHATTI, DIST: GADAG.
2. THE UNITED INDIA INSURANCE CO. LTD.,
ISSUING OFFICE, NEAR GIDC, CHAR RASTA, OPP. RAHAT
Digitally HOTEL, N.H.NO-8, VAPI, THROUGH ITS DIVISIONAL
signed by
OFFICE, DIVISIONAL MANAGER, THE UNITED INDIA
John John Doe
Date: INSURANCE CO. LTD., ANKOLA ARCADE, JUBILEE CIRCLE,
Doe 2022.09.19
12:18:09 DHARWAD.
+0530
...RESPONDENTS
(BY SRI. H.R.KAMBIYAVAR, ADVOCATE FOR R1,
SRI.N.R.KUPPELUR, ADVOCATE FOR R2)
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MFA No. 103394 of 2014
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED 21.07.2014 PASSED IN MVC
NO.663/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL
DHARWAD, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for both the parties.
2. This appeal is filed by the claimant challenging
the judgement and award passed in MVC No.663/2012
dated 21.07.2014 on the file of the Principal Civil Judge
and Additional MACT, Dharwad (hereinafter referred to as
'the Tribunal' for short), questioning the quantum of
compensation.
3. Brief facts of the case are as under:
A claim petition came to be filed under Section 166
of the Motor Vehicles Act contending that on the claimant
met with an accident on 15.01.2012, as a result he had
suffered comminuted fracture of femur, tibia and fibula
MFA No. 103394 of 2014
and he was inpatient for a period of 105 days on three
different occasions and he spent huge money for his
treatment and thus sought for awarding suitable
compensation.
4. Learned counsel for the claimant vehemently
contends that in support of his claim, he examined doctor
as PW.2 and he assessed the disability at 56% to whole
body and Tribunal taken disability of 19% and failed to
take note that he had suffered compound fracture of
femur, tibia and fibula and also there are mal union of
tibia and fibula. The Tribunal also taken the income on a
lesser side i.e. Rs.6,000/- and accident is of the year 2012
and notional income would be Rs.6,500/- and apart from
that he was working as driver and was an agriculturist and
in order to substantiate his contention that he was working
as driver copy of driving extract at Ex.P.7 is produced.
Counsel also submits that the income taken by the
Tribunal while calculating future loss of income and loss of
income during laid up period is also meager and
MFA No. 103394 of 2014
compensation awarded by the Tribunal on other heads is
also very meager. Thus, sought for enhancement of
compensation.
5. Per contra, learned counsel for respondents
submits that the Tribunal considered the income at
Rs.6,000/- in the absence of any documentary evidence
and also awarded just and reasonable compensation on
other heads and hence, it does not require any
interference.
6. In view of the factual aspects, the following
point would arise for consideration:
1. Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation?
2. What order?
7. Regarding point Nos.1 and 2: Having heard the
learned counsel for parties and on perusal of the material
on record, the claimant got marked wound certificate as
MFA No. 103394 of 2014
Ex.P.4, wherein he has suffered fracture of right femur,
tibia and fibula and in support of his claim also examined
doctor as PW.2 and doctor in his evidence has deposed the
disability as 56% and Tribunal considered future loss of
income considering the disability of 19% and the doctor
says in his evidence that permanent physical impairment
to the extent of 56% with respect to right lower limb and
Tribunal taken 1/3rd of the disability and failed to take note
of evidence of doctor, wherein he has categorically stated
that right knee and leg shows mal united fracture of tibia
and fibula. The Tribunal further failed to take note of the
mal uniting of fracture of tibia and fibula. When such being
the case, the disability taken by the Tribunal is on lesser
side and hence, it is appropriate to add 10% to fracture of
femur and 8% to tibia and 4% to supporting bone fibula, it
comes to 22% and having added another 4% for mal
union of fracture of tibia and fibula, it comes to 26% and
photographs produced before the Court are also taken
note of regarding condition of the injured claimant.
MFA No. 103394 of 2014
8. Now this Court has to reassess the
compensation in keeping the medical records available on
record and also period of treatment. The Tribunal has
awarded Rs.50,000/- towards pain, shock and suffering
and having considered the claimant was inpatient in the
hospital on different occasions for three times and also
considering compound fracture of femur, tibia and fibula
and he was subjected to surgery, it is appropriate to
enhance the same to Rs.75,000/- as against
Rs.50,000/-. The Tribunal has awarded Rs.40,000/- on
loss of amenities and the injured being aged 27 years as
on the date of accident and also this Court has reassessed
disability at 26%, it is appropriate to enhance the same to
Rs.60,000/-. Towards loss of income during laid up
period for four months is taken and Ex.P.7 disclose that he
was having driving licence to drive motorcycle as well as
LMV empty vehicle, and he was a driver and an
agriculturist, it is appropriate to add additional sum of
Rs.1,000/- to the income since he was having driving
licence and notional income would be Rs.6,500/- and
MFA No. 103394 of 2014
hence this Court has taken the income as Rs.7,500/- as
his income. The claimant had suffered three fractures and
if six months loss of income during laid up period is taken,
it comes to Rs.45,000/- (Rs.7,500 x 6) as against
Rs.24,000/-. Towards attendant charges, the Tribunal has
awarded Rs.24,000/- and claimant has produced Exs.P.13
and 14 discharge summary, wherein he was inpatient at
the first instance from 15.01.2012 to 31.01.2012 and he
was again readmitted from 04.02.2012 to 12.03.2012. The
claimant also relied letter i.e. bill-cum-summary dated
24.04.2012, wherein it discloses that he was admitted to
hospital on 15.03.2012 and discharged on 24.04.2012 and
no discharge card is produced before the Court except the
bill-cum-summary, which is also in the form of letter and
the said document cannot be treated as genuine document
to treat the same as the claimant was inpatient in the
hospital. Hence, by taking 52 days hospitalization, it is
appropriate to enhance the same to Rs.50,000/- as
against Rs.24,000/- towards attendant charges.
MFA No. 103394 of 2014
9. The Tribunal has awarded Rs.2,63,547/-
towards medical expenses and since the same is based on
documentary evidence, the same is retained. In respect of
loss of future income, this Court assessed the income as
Rs.7,500/-. Hence, the claimant is entitled for Rs.7,500 x
12 x 17 x 26% = Rs.3,97,800/-.
10. Towards future medical expenses, the Tribunal
considering the evidence of PW.2 and implant in situ, has
awarded Rs.30,000/- and the same is just and
reasonable. Counsel for the claimant would contend that
Rs.27,000/- bill is produced in respect of follow up
treatment and with regard to follow up treatment is
concerned, examined PW.3, who claims that he has issued
receipt for having taken the vehicle in order to take follow
up treatment and in support of follow up treatment, no
documents are produced before the Court and hence, the
claimant is not entitled for any compensation with regard
to evidence of PW.3 and bills which have been produced
and this Court has already considered the conveyance
MFA No. 103394 of 2014
charges and other incidental expenses by enhancing
Rs.24,000/- to Rs.50,000/-. Hence, in all the claimant is
entitled for Rs.9,21,347/-. Accordingly point Nos.1 and 2
are answered.
11. In view of the discussions made above, I pass
the following:
ORDER
Appeal is allowed in part.
In modification of the impugned judgment and award
passed by the Tribunal, the claimant is entitled for a sum
of Rs.9,21,347/- with interest at 6% p.a. from the date
of petition till realization as against Rs.6,64,107/- awarded
by the Tribunal in the impugned judgment and award.
Compensation shall be payable within six weeks from
the date of this order.
Apportionment and deposit of the compensation
amount would be as per the award of the Tribunal.
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MFA No. 103394 of 2014
The registry is directed to transmit the trial court
records forthwith.
sd
JUDGE
sh
