Pallapothu Ayyappa @ Ayyappa vs Khaja Moinuddin Mohd And Anr
2023 Latest Caselaw 101 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF JANUARY, 2023

                      PRESENT

 THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

                         AND

THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

 MISCELLANEOUS FIRST APPEAL NO.202021/2018(MV)

BETWEEN:

Pallapothu Ayyappa @ Ayyappa,
S/o. Purnachandrarao
Aged about 30 years, Occ: Nil,
R/o H.No.2-227, Sakhinetipalli,
Lanka East
Godavari (AP).
Now R/o: Polakpalli Village,
Tq: Chincholi,
Dist: Kalaburagi.
                                       ... Appellant
(By Sri Sanjeev Kumar C. Patil, Advocate)

AND:

1.   Khaja Moinuddin Mohd.,
     S/o. Mohd. Yousuf,
     Age about 52 years, Occ: Business,
     R/o H.No.3-2-139, I.B. Road, Tandur,
                                     MFA No.202021/2018
                          2




     Rangareddy District (TS)-500 074
     Owner of crime vehicle.

2.   The New India Assurance Co Ltd.,
     Through the General Manager
     New India Assurance Company Ltd.,
     S.P. Road, Sangamesh Complex,
     Kalaburagi-585 101
                                      ... Respondents

(By Sri Sudarshan M., Advocate for R2:
R1-Notice dispensed with v/o. dtd.04.01.2019)

      This Miscellaneous First Appeal is filed under
Section 173(1) of MV Act, praying to modify the
judgment and award dated 27.07.2018 passed by the
Senior Civil Judge & MACT, Chincholi, in MVC
No.874/2016 by enhancing the compensation, in the
interest of justice and equity.

     This appeal coming on for Admission, through
physical hearing/video conference, this day T.G.
Shivashankare Gowda, J., delivered the following:


                     JUDGMENT

In this appeal the appellant has challenged the

judgment and award dated 27.07.2018 passed in MVC

No.874/2016 on the file of the Senior Civil Judge and MFA No.202021/2018

MACT at Chincholi (Hereinafter referred to as 'Tribunal'

for short) seeking enhancement of compensation.

2. The appellant was the petitioner and the

respondents herein were the respondents before the

Tribunal. For the sake of convenience, parties will be

referred with respect to their status before the Tribunal.

3. Briefly stated, the facts are that, on

18.09.2015 at about 02:00 p.m., while the petitioner

was going towards Saipur, after crossing Indira Chowk at

Tandur, a lorry bearing No. AP-29/T-6769 caused

accident, due to which he sustained injuries and he was

under hospitalization at Government Hospital Tandur and

thereafter at Nims Hospital Panjagutta Hyderabad. The

petitioner pleaded that he was aged 28 years, underwent

surgeries 8 times, spent Rs.8,00,000/- towards

treatment, he was earning Rs.25,000/- per month by MFA No.202021/2018

doing wholesale coconut business. He claimed

compensation of Rs.41,30,000/-. The claim was opposed

by the Insurance Company. The Tribunal awarded

Rs.5,08,500/- with 6% interest.

4. Petitioner has pleaded inadequacy in the

compensation awarded by the Tribunal, the income

assessed by Tribunal was on the lesser side, the

disability was not properly assessed and adequate

compensation was not awarded under different heads.

5. According to the learned counsel for

petitioner, the petitioner was earning Rs.25,000/- per

month by doing wholesale coconut business; he was

under hospitalization for 36 days; no compensation was

awarded towards shortening of life expectancy; the

compensation assessed by the Tribunal is MFA No.202021/2018

disproportionate to the gravity of the injuries. Hence, he

sought for re-assessment and enhancement.

6. Per contra, learned counsel for Insurance

Company contended that under different heads the

Tribunal has assessed compensation, since the Medical

Officer, who issued the Disability Certificate was not the

treated Doctor, the Tribunal has rightly assessed the

disability at 19% and taken the income at Rs.6,000/- per

month and awarded the adequate compensation and

supported the impugned judgment. However, the

learned counsel is fair enough to submit that a little

enhancement of compensation towards pain and

sufferings, amenities, shortening of life expectancy may

be awarded.

7. We have given our anxious consideration to

the arguments addressed on behalf of the parties and

perused the records.

MFA No.202021/2018

8. There is no dispute as to the accident, cause

of accident, injuries sustained by petitioner, treatment

taken and disability sustained. The dispute is regarding

the percentage of disability, income of the petitioner and

assessment of compensation under different heads.

Petitioner contended that compensation assessed is

inadequate, whereas, the Insurance Company supports

the impugned judgment. Ex.P7-Wound Certificate

narrates the injuries sustained by petitioner, as such, (1)

Rupture of urethra; (2) Avulsion of right testicle; (3)

Fracture of pelvis bone and (4) Fracture of femur.

Medical records also point out that the petitioner was

under hospitalization for 36 days; he had underwent

surgeries for rectification of Rupture of urethra so also

the fractures. Medical Bills produced by the petitioner

points out Rs.1,64,900/- was spent, which the Tribunal

has considered in toto and it is just and proper. The

compensation awarded by the Tribunal towards pain and MFA No.202021/2018

sufferings, loss of amenities, loss of income during laid

up period, future medical expenses and attendant, food

and nourishment and conveyance charges are on lower

side. The Tribunal failed to consider effect of the injuries

on the life span of the petitioner. Petitioner has not

produced any documents as proof of income, hence the

Tribunal ought to have taken income of the petitioner not

less then Rs.8,000/- per month, which was the income

one person can earn in the year 2015. Hence,

reassessment of the compensation is necessary.

9. Ex.P9 is the Disability Certificate issued by

PW2 - Dr. Rajendra Kothari, who is a Surgeon, though

not a treated Doctor, but his evidence cannot be ignored

having regard to the nature of injuries as such Rupture

of urethra required continuous treatment, which we

concur with the opinion of PW2. Hence, petitioner

requires to undergo future treatment through out his life MFA No.202021/2018

and though the percentage of disability assessed at 55%,

having regard to the fractures, injuries to urethra

testicle, fractures of pelvic and femur, we are of the

considered opinion that the injuries will certainly effect

the normal functioning of the petitioner with minimum of

55% disability, which the Tribunal had assessed 19% is

not proper. As regards to disability is concerned, as we

discussed above, opinion of the Doctor is not at all

necessary, Court can imagine the condition of the

petitioner. Accordingly, assessment of compensation has

to be made.

10. As seen from the impugned judgment, the

Tribunal has added future prospects while assessing the

income of the petitioner by applying the principles laid

down in National Insurance Company Limited vs.

Pranay Sethi and Others -2017 ACJ 680 for the age

of petitioner at 37 years should be taken as 40%.

MFA No.202021/2018

11. Taking into consideration all these factors, we

deem it proper to award Rs.1,00,000/- towards pain and

sufferings, Rs.1,64,900/- towards medical expenses,

Rs.50,000/- towards future medical expenses,

Rs.30,000/- together for attendant, food and

nourishment and conveyance charges and Rs.1,00,000/-

towards loss of amenities and discomfort. The petitioner

was laid up for one year, hence loss of income during

laid up period at Rs.96,000/- and loss of life expectancy

Rs.1,00,000/- is awarded. The multiplier applicable to

the age of petitioner is '17'. Accordingly, loss of future

income would be: Income Rs.8,000/- + future prospects

at 40% = Rs.11,200/-. Accordingly, it works out to

Rs.11,200/- x 12 x 17 = Rs.22,84,800/-. 55% of it

comes to Rs.12,56,640/-. In all, the just compensation

of Rs.18,97,540/-, to which the petitioner is entitled.

Thus, the petitioner is entitled to enhanced compensation

of Rs.13,89,040/- rounded off to Rs.13,89,000/-.

MFA No.202021/2018

12. In the result, the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the

Tribunal is modified by enhancing the

compensation.

The petitioner is entitled to enhanced

compensation of Rs.13,89,000/- with interest at

the rate of 6% per annum.

Office is directed to transfer the amount if

any in deposit, to the Tribunal, forthwith and

also transmit the records.

Sd/-

JUDGE

Sd/-

JUDGE SBS*