Karnataka High Court
Jabiulla vs The Manager on 23 August, 2023
Bench: H T Prasad
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NC: 2023:KHC:30034
MFA No. 2719 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 2719 OF 2018 (MV)
BETWEEN:
JABIULLA
S/O ALLABAKSHI
AGED ABOUT 53 YEARS
R/O INDUSTRIAL AREA HASSAN
PRESENTLY R/AT NO 225
9TH CROSS, GANDHIPURA
WHITEFIELD, BENGALURU - 560066
...APPELLANT
(BY SRI. MADHU M T., ADVOCATE
SRI.GIRISH B BALADARE .,ADVOCATE)
AND:
1. THE MANAGER
RELIANCE GENERAL INS CO LTD
Digitally signed KRUTHIKA ARCADE N R CIRCLE
by HOLENARASIPURA ROAD
DHANALAKSHMI HASSAN - 573201.
MURTHY
Location: High 2. K R KUMARA
Court of
Karnataka S/O RAJEGOWDA
KADAVINA KOTE
HOLENARASIPURA TALUK
HASSAN DISTRICT - 573201
...RESPONDENTS
(BY SRI.B.PRADEEP, ADVOATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH V/O DATE: 23.08.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:03.11.2017
PASSED IN MVC NO.1285/2015 ON THE FILE OF THE II
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MFA No. 2719 of 2018
ADDITIONAL DISTRICT & SESSIONS JUDGE & ADDITIONAL
MACT., HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Section 173(1) of Motor Vehicles
Act, 1988 (hereinafter referred to as 'the Act') has been
filed by the claimant being aggrieved by the judgment
dated 3.11.2017 passed by MACT, Hassan in MVC
No.1285/2015.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 10.5.2015 in Industrial Area, Dairy
Circle, when the claimant was standing behind the lorry
bearing registration No.KA-13-4696 while loading the
cement, the driver of lorry without giving any signal took
the lorry towards the backside. dashed to the claimant. As
a result of the aforesaid accident, the claimant sustained
grievous injuries and was hospitalized.
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MFA No. 2719 of 2018
3. The claimant filed a petition under Section 166 of the
Act seeking compensation. It was pleaded that he spent
huge amount towards medical expenses, conveyance
charges, etc. It was further pleaded that the accident
occurred purely on account of the rash and negligent
driving of the offending vehicle by its driver.
4. On service of notice, the respondents appeared
through counsel and filed written statement in which the
averments made in the petition were denied.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter recorded
the evidence. The claimant himself was examined as PW-1
and Dr.H.S.Ravi was examined as PW-4 and got exhibited
documents namely Ex.P1 to Ex.P11. On behalf of the
respondents, one witness was examined as RW-1 and got
exhibited documents namely Ex.R1 to Ex.R2. The Claims
Tribunal, by the impugned judgment, inter alia, held that
the accident took place on account of rash and negligent
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MFA No. 2719 of 2018
driving of the offending vehicle by its driver, as a result of
which, the claimant sustained injuries. The Tribunal further
held that the claimant is entitled to a compensation of
Rs.383,680/- along with interest at the rate of 6% p.a.
and directed the Insurance Company to deposit the
compensation amount along with interest. Being
aggrieved, the present appeal has been filed.
6. The learned counsel for the claimant has raised the
following contentions:
a) Firstly, even though the claimant claims that he was
doing coolie work and earning Rs.10,000/- per month, but
the Tribunal has taken the notional income as merely as
Rs.6,000/- p.m.
b) Secondly, the claimant has examined the doctor as
PW-4. The claimant has suffered 3 major injuries and four
simple injuries. The doctor in his evidence has stated that
the claimant has suffered disability of 40% to particular
limb. But the Tribunal has taken the whole body disability
at 13%, which is on the lower side.
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MFA No. 2719 of 2018
c) Lastly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 50 days. The Tribunal has failed to award any
compensation towards 'loss of income during laid-up
period'.
d) The claimant has suffered lot of pain during
treatment. Even after discharge from the hospital, he was
not in a position to discharge his regular work. Considering
the same, the compensation awarded by the Tribunal
under the heads of 'loss of amenities', 'pain and
sufferings', 'future medical expenses' and other incidental
expenses are on the lower side. Hence, he sought for
allowing the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised following counter
contentions:
a) Firstly, even though the claimant claims that he was
earning Rs.10,000/- per month, he has not produced any
documents to establish his income. In the absence of proof
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MFA No. 2719 of 2018
of income, the Tribunal has rightly assessed the income of
the claimant notionally.
b) Secondly, the Tribunal considering the injuries
sustained by the claimant and evidence of the doctor, has
rightly assessed the whole body disability at 13%.
c) Thirdly, considering the injuries sustained by the
claimant and considering the age and avocation of the
claimant, the compensation awarded by the Tribunal under
the heads of 'loss of amenities', 'pain and sufferings',
'future medical expenses' and other incidental expenses
are just and reasonable and it does not call for
interference. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 10.5.2015
due to rash and negligent driving of the offending vehicle
by its driver.
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MFA No. 2719 of 2018
10. The claimant claims that he was earning Rs.10,000/-
per month. He has not produced any documents to prove
his income. Therefore, in the absence of proof of income,
notional income has to be assessed. As per the guidelines
issued by the Karnataka State Legal Services Authority,
for the accident taken place in the year 2015, the notional
income has to be taken at Rs.9,000/- p.m.
11. As per wound certificate, the claimant has sustained
swelling and deformity of arm, swelling and deformity of
forearm, no distal pulsation and lacerated wound over arm
and forearm. The doctor in his evidence has stated that
the claimant has suffered disability of 40% to particular
limb. Therefore, taking into consideration the deposition of
the doctor and injuries mentioned in the wound certificate,
the Tribunal has rightly taken the whole body disability at
13%. The claimant is aged about 48 years at the time of
the accident and multiplier applicable to his age group is
'13'. Thus, the claimant is entitled for compensation of
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MFA No. 2719 of 2018
Rs.182,520/- (Rs.9000*12*13*13%) on account of 'loss
of future income'.
12. The nature of injuries suggests that the claimant
must have been under rest and treatment for a period of 5
months. Therefore, the claimant is entitled for
compensation of Rs.45,000/- (Rs.9000*5 months) under
the head 'loss of income during laid up period'.
13. The claimant was treated as inpatient for more than
50 days in the hospital and thereafter, has received
further treatment. Due to the accident, the claimant has
suffered grievous injuries and also undergone surgery. He
has suffered lot of pain during treatment and he has to
suffer with the disability stated by the doctor throughout
his life. Considering the same, I am inclined to enhance
the compensation awarded by the Tribunal under the head
of 'pain and sufferings' from Rs.50,000/- to Rs.70,000/-
and under the head of 'loss of amenities' from Rs.20,000/-
to Rs.45,000/-.
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MFA No. 2719 of 2018
14. The doctor in his evidence has stated that the
claimant requires about Rs.40,000/- to undergo one more
surgery. But the claimant has not produced any estimation
of future surgery. Considering the nature of injuries and
evidence of doctor, I am inclined to enhance the
compensation awarded by the Tribunal under the head of
'future medical expenses' from Rs.25,000/- to
Rs.40,000/-.
15. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
16. Thus, the claimant is entitled to the following
compensation:
As awarded As awarded
by the by this
Compensation under Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 50,000 70,000
Medical expenses 130,000 130,000
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MFA No. 2719 of 2018
Food, nourishment, 37,000 37,000
conveyance and
attendant charges
Loss of income during 0 45,000
laid up period
Loss of amenities 20,000 45,000
Loss of future income 121,680 182,520
Future medical expenses 25,000 40,000
Total 383,680 549,520
17. In the result, I pass the following order:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of
Rs.549,520/-.
d) The Insurance Company is directed to deposit the
compensation amount along with interest
@ 6% p.a. from the date of filing of the claim
petition till the date of realization, within a period of
six weeks from the date of receipt of copy of this
judgment excluding interest for the compensation
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MFA No. 2719 of 2018
awarded under the head of 'future medical
expenses'.
Sd/-
JUDGE
DM
