Karnataka High Court

The Manager vs Mallikarjun And Anr on 3 January, 2023

Bench: J.M.Khazi

                         1       MFA No.202505/2019




        IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 3RD DAY OF JANUARY, 2023

                      BEFORE

        THE HON'BLE MS. JUSTICE J.M.KHAZI

           MFA NO 202505 OF 2019 (MV)

BETWEEN

1.    THE MANAGER
      UNITED INDIA INSURANCE COMPANY LTD.,
      DOOR NO.12-10-89/1, 1ST FLOOR
      ANAGA COMPLEX, NEAR CHANDRA MOULESHWAR
      CHOWK, RAICHUR, THROUGH ITS
      AUTHORIZED SIGNATORY
                                      ...APPELLANT

(BY SRI RAHUL R. ASTURE, ADVOCATE)

AND

1.    MALLIKARJUN
      S/O SANNA SIDDAPPA
      AGE: 34 YEARS
      OCC: AGRICULTURE AND TRACTOR OWNER
      R/O TUPPADU, TQ MANVI
      DIST. RAICHUR-584123, OWNER OF VEHICLE
      BEARING REGN. NO.KA-36/TB-4894

2.    HOLEYAPPA
      S/O BALAPPA ISLAMPUR
      AGE: 62 YEARS
      OCC: AGRIL. & COOLIE
      R/O: PAMANKELLUR
      TQ: MANVI, DIST: RAICHUR
                            2       MFA No.202505/2019




     NOW RESIDING AT LINGASUGUR
     DIST: RAICHUR-584122
                                         RESPONDENTS

(SRI BASAVARAJ R. MATH, ADVOCATE FOR R1:
SRI SHARANAGOUDA V. PATIL, ADVOCATE FOR R2)


     THIS MISCELLANEOUS        FIRST   APPEAL   IS   FILED
UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED
08.08.2019 PASSED BY THE MOTOR ACCIDENT CLAIMS
TRIBUNAL AT LINGASUGUR, IN MVC NO.106/2018, AND
ALSO MODIFY THE AWARD AMOUNT AND SET ASIDE THE
FASTENING OF ENTIRE LIABILITY ON THE APPELLANT, BY
ALLOWING THIS APPEAL.


     THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

In this miscellaneous first appeal filed under

Section 173(1) of Motor Vehicles Act (hereinafter

referred to as 'the Act' for short), insurance company,

which is arrayed as respondent No.2 has challenged

the quantum of compensation granted in favour of the

claimant/petitioner.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. It is the case of the petitioner that he is an

agriculturist. On 22.12.2015 in between 6-30 to 7-00

p.m., he was returning from his land. When he was

near the land of Shivappa, on Pamanakellur-Harvapur

road, a tractor bearing registration No.KA-36/TB-4894

came from the opposite side in a rash or negligent

manner and dashed against him. In the said accident,

he sustained grievous injuries, resulting in permanent

partial disability. At the time of accident, he was aged

60 years, earning Rs.12,000/- p.m. As owner and the

insurer, respondents are liable to pay the

compensation.

4. Respondents have filed separate written

statements denying the age, occupation, income and

nature of the injuries sustained and also that it has

resulted in permanent partial disability. Respondent

No.1 contended that at the time of alleged accident,

the vehicle was covered by a valid policy and

respondent No.2 has pleaded that its liability, if any,

subject to the terms and conditions of the policy.

5. Based on these pleadings, the Tribunal has

framed necessary issues.

6. In support of his case, the petitioner has

examined himself as P.W.1. He has got marked

Exs.P.1 to 133. On behalf of respondent No.2, R.W.1

is examined and Ex.R.1 is marked.

7. Vide the impugned judgment and award,

the Tribunal has partly allowed the petition granting

compensation in a sum of Rs.6,76,469/- and directed

respondent No.2 to pay the same with interest at the

rate of 9% per annum as detailed below:

   Sl.No.            Particulars                  Amount of
                                                compensation
  1.         Loss of future income due       Rs.4,32,000/-
             to disability
  2.         Loss of income during           Rs.10,000/-
             period of treatment
  3.         Pain and suffering              Rs.50,000/-
  4.         Medical Expenses                Rs.1,54,469/-
  5.         Attendant charges, rest         Rs.10,000/-
             and nourishment
  6.         Transportation       charges    Rs.10,0000/-
             during     the   period   of
             treatment
   7.        Future medical expenses         Rs.10,000/-
             Total                           Rs.6,76,469/-

8. The same is challenged by respondent

No.2 on the quantum of compensation.

9. During the course of arguments, learned

counsel for respondent No.2 submitted that in the

absence of evidence to prove the exact income,

having regard to the fact that the accident was during

the year 2015, notional income ought to have been

taken as Rs.8,000/- p.m. instead of Rs.10,000/- p.m.

Though the petitioner claimed that he was aged 60

years at the time of accident, the police records as

well as the medical records indicate that he was 65

years old. Therefore, the proper multiplier is 7 instead

of 9 taken by the Tribunal. He would further submit

that the doctor, who treated the petitioner is not

examined. Even where the medical records are prima

facie taken as correct, 40% disability is with regard to

the particular limb and 1/3rd of it is to be taken as

whole body disability to calculate the loss of future

income, but the Tribunal has taken the entire 40%

disability for this purpose and therefore, it requires

modification.

10. Learned counsel for petitioner submitted

that atleast the disability may be taken at 15%

instead of 13% as argued by the learned counsel for

respondent No.2. He would further submit that loss of

amenities is required to be added.

11. Heard the arguments and perused the

records.

12. Based on the complaint regarding the

accident, after conducting detailed investigation, the

concerned police have filed the chargesheet against

the driver of the offending vehicle. Consequently, the

findings of the Tribunal that the accident was occurred

due to the rash or negligent driving by the driver of

the offending vehicle is correct.

13. Though the petitioner has claimed that at

the time of accident, he was 60 years old, admittedly,

he has not produced any documentary proof of his

age. Therefore, medical records and police records

are required to be taken into consideration for

ascertaining the age of the petitioner. Admittedly, in

these records, the age of the petitioner is given as 65

yeas. Therefore, the Tribunal has erred in accepting

the age of the petitioner as 60 years as reflected in

the claim petition. If the age of the petitioner is taken

as 65 years, then the appropriate multiplier is 7 and

not 9 as taken by the Tribunal. Admittedly, the

petitioner has not produced any document in proof of

his actual income. Therefore, it has to be on the basis

of notional income. The Tribunal has taken his income

as Rs.10,000/- p.m. without any basis. Having regard

to the fact that the accident is of the year 2015, on

the basis of minimum wages, it would be appropriate

to consider the income as Rs.8,000/- p.m. instead of

Rs.10,000/- p.m.

14. Similarly, in the medical records, 40%

disability described is that of the particular limb, it has

to be divided into three in order to ascertaining the

whole body disability. If 40% is divided by three, it

come around 13.3%. Therefore, the whole body

disability is taken at 15%. With these components,

the loss of future income is Rs.8,000/- x 12 x 7 x 15%

Rs.1,00,800/-.

15. Similarly, if the income is taken at

Rs.8,000/- p.m., the loss of income during the

treatment period would come to Rs.8,000/- instead of

Rs.10,000/-. The compensation granted under the

head pain and suffering, medical expenses, attendant

charges, transportation charges and future medical

expenses do not call for any interference. The

Tribunal has not granted any compensation under the

head loss of amenities. Having regard to the nature

of injuries suffered by the petitioner, the same is

quantified at Rs.10,000/-.

16. Thus, in all the petitioner is entitled for

compensation in a sum of Rs.3,53,269/- as against

Rs.6,76,469/- granted by the Tribunal as detailed

below:

Sl. Heads Amount awarded Amount awarded No. by the Tribunal by this Court 1. Loss of future income Rs.4,32,000/- Rs.1,00,800/- due to disability 2. Loss of income during Rs.10,000/- Rs.8,000/- period of treatment 3. Pain and suffering Rs.50,000/- Rs.50,000/- 4. Medical Expenses Rs.1,54,469/- Rs.1,54,469/- 5. Attendant charges, Rs.10,000/- Rs.10,000/- rest and nourishment 6. Transportation Rs.10,000/- Rs.10,000/- charges during the period of treatment 7. Future medical Rs.10,000/- Rs.10,000/- expenses 8. Loss of amenities -- Rs.10,000/- Total Rs.6,76,469/- Rs.3,53,269/-

17. To this extent, the appeal deserves to be

allowed. Accordingly, I proceed to pass the following: