Karnataka High Court
Nagesh @ Nagappa S/O Anneppa vs Mahboob S/O Jaharmiya And Anr on 5 January, 2023
Bench: J.M.Khazi
1 MFA No.201053/2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
MFA NO.201053/2021 (MV)
BETWEEN
NAGESH @ NAGAPPA S/O ANNEPPA
AGE: 35 YEARS, OCC: HOTEL BUSINESS
R/O VILLAGE MALKAPUR
TQ. AND DIST. BIDAR-585403.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND
1. MAHBOOB S/O JAHARMIYA
AGE: MAJOR, OCC. BUSINESS
R/O SIKINDRAPUR VILLAGE
TQ. BIDAR-585402.
(OWNER OF TEMPO TRACK
TOOFAN MAXICAB
BEARING NO. KA.32/A-7023)
2. M/S SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8-RIICO INDUSTRIAL AREA
SITAPUR JAIPUR, RAJASTHAN-302022
REPRESENTED BY ITS
ATTORNEY/AUTHORIZED SIGNATORY
...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
NOTICE TO R1 D/W V/O DTD 28.10.2021)
2 MFA No.201053/2021
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING
TO MODIFY THE IMPUGNED JUDGMENT AND AWARD
DATED 24.03.2021 PASSED BY THE ADDL. MACT AND
ADDL. SENIOR CIVIL JUDGE, BIDAR IN MVC NO.239/2018.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Not being satisfied with the quantum of
compensation, claimant is before this Court in this
appeal under Section 173(1) of Motor Vehicles Act
(hereinafter referred to as 'the Act' for short) seeking
enhancement of compensation.
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 a
businessman running a hotel. On 10.02.2018 he along
with his friend Suryakanth went to Bidar. At around
4:45 p.m. they were sitting in a road side hotel and
having tea. At that time, a Toofan Maxicab bearing
Reg.No.KA-32/7023, (hereinafter referred to as
'offending vehicle') being driven by its driver in a rash
or negligent manner came and dashed against him. As
a result of the accident, the petitioner sustained
injuries to his head and other parts of the body.
Inspite of prolonged treatment, he is not completely
cured. The injuries have resulted in permanent partial
disability.
4. While undergoing treatment, he has given
statement. On the basis of which case was registered
against the driver of the offending vehicle and charge
sheet is filed. As the owner and insurer of the
offending vehicle respondents are jointly and
severally liable to pay the compensation.
5. Though duly served with summons,
respondent No.1 has remained ex parte.
6. Respondent No.2 appeared through counsel
and filed written statement disputing that accident
occurred due to rash or negligent driving of the
offending vehicle. It has denied the age, occupation,
income of the petitioner and also nature of the injuries
sustained and that they have resulted in permanent
and partial disability. The liability if any of respondent
No.2 is subject to the terms and conditions of the
policy.
7. Based on these pleadings, the Tribunal
framed necessary issues.
8. On behalf of petitioner, petitioner No.1
examined himself as PW.1 and one witness as PW.2.
He has relied upon Exs.P1 to 13.
9. On behalf of respondent No.2, one witness
is examined as RW.1 and Exs.R1 and 2 are marked.
10. Vide the impugned judgment and award
the Tribunal has partly allowed the petition and
granted compensation in a sum of Rs.2,36,611/- with
interest at 9% per annum as detailed below:
Sl.No. Compensation head Amount
awarded
1. Pain and suffering Rs.30,000/-
2. Medical, attendant & Rs.18,000/-
incidental charges
3. Laid-up period charges Rs.12,000/-
4. Loss of earnings Rs.1,38,240/-
5. Loss of basic amenities Rs.15,000/-
6. Medical expenses Rs.23,371/-
Total Rs.2,36,611/-
11. Respondent No.2 has not challenged the
impugned judgment and award.
12. During the course of argument, learned
counsel for the petitioner submitted that in the
accident in question petitioner sustained fracture of
frontal bone and right orbit and it has resulted in
permanent partial disability to the extent of 40% of
the particular limb and 25% of the whole body. The
Tribunal has erred in restricting the disability to 8%.
He would further submit that accident is of the year
2018 and in the absence of evidence to prove the
exact income, based on minimum wages and income
ought to have been taken at Rs.11,750/- and the
income at Rs.9,000/- considered by the Tribunal is on
the lower side. The compensation granted under the
other heads also requires enhancement.
13. On the other hand, learned counsel for
respondent No.2 supports the impugned judgment
and award and prays to dismiss the appeal.
14. Heard arguments and perused the records.
15. The fact that as on the date of accident the
offending vehicle was covered by a valid policy issued
by respondent No.2 is not in dispute. Based on the
complaint filed by the petitioner, after conducting
detailed investigation the concerned police have filed
charge-sheet against the driver of the offending
vehicle. The testimony of PW.1 coupled with Exs.P1 to
4, 10 to prove the fact that petitioner sustained the
injuries in question in the accident involving the
offending vehicle. In the light of the same, the only
issue left to be examined is whether the compensation
granted to the petitioner is just and reasonable or it
requires enhancement under the following heads.
16. Pain and suffering & Loss of Amenities
of Life: PW.2-Dr.Rajshekhar Sedamkar has issued the
disability certificate. He is not the doctor who has
treated the petitioner. The Tribunal has observed that
PW.2 has not conducted the requisite tests in respect
of assessment of disability as per the guidelines issued
by the Ministry of Social Empowerment and Justice in
the month of January 2018. At the same time, the
Tribunal has also rightly observed that on that ground
the clinical examination conducted by PW.2 cannot be
discarded.
16.1 As per the testimony of PW.2 and the
disability certificate at Ex.P8 the petitioner has
sustained 40% disability of the particular limbs and he
has quantified the whole body disability at 25%. Since
he is not the treating doctor, the Tribunal has taken
the whole body disability at 8% which is on the lower
side. Admittedly PW.2 is not a neuro surgeon and
consequently his findings that there is brain damage
affecting his ability to weight bearing and he suffers
from imbalance cannot be accepted. However, the fact
remains that the petitioner has sustained fracture to
his frontal skull bone and fracture of orbit. Taking into
consideration the over all evidence, I am of the
considered opinion that it would be appropriate to
take the disability at 15%. Having regard to these
aspects, I hold that grant of compensation in a sum of
Rs.30,000/- under the head pain and suffering &
Rs.15,000/- under the head loss of amenities of life is
on the lower side and same is enhanced to
Rs.50,000/- and Rs.20,000/- respectively.
17. Medical Expenses: Based on the medical
bills, the Tribunal has rightly granted compensation in
a sum of Rs.23,375/- and the same does not call for
interference.
18. Compensation for laid up period:
Having regard to the nature of injuries suffered by the
petitioner the Tribunal has rightly held that petitioner
was under treatment for a period of two months. At
the rate of Rs.9,000/- per month it has granted
compensation in a sum of Rs.18,000/- but in the table
it is shown as Rs.12,000/-. As discussed earlier for the
year 2018 the notional income is required to be taken
at Rs.11,750/-, for a period of two months petitioner
is entitled for compensation in a sum of Rs.23,500/-.
19. Medical, attendant and incidental
changes: Under this head the Tribunal has rightly
granted compensation in a sum of Rs.12,000/- at the
rate of Rs.200/- per day for a period of two months.
However, in the table it is wrongly shown as
Rs.18,000/-, the same does not call for any
interference.
20. Loss of future earnings: The Tribunal has
granted compensation in a sum of Rs.1,38,240/- by
taking the income at Rs.9,000/- per month and
disability at 8%. As discussed earlier the notional
income of the petitioner is required to be taken at
Rs.11,750/- and disability at 15% . Having regard to
the age of the petitioner, the multiplier '16' taken by
the Tribunal is correct. With these components the
compensation under this head is Rs.11,750 x 12 x 16
x 15% = Rs.3,38,400/-.
21. Thus, in all the petitioner is entitled for a
total compensation in a sum of Rs.4,67,271/- as
against Rs.2,36,611/- granted by the Tribunal as
detailed below:
Sl. Heads Amount Amount
No. awarded by awarded by
the Tribunal this Court
1. Pain and suffering Rs.30,000/- Rs.50,000/-
2. Loss of amenities Rs.15,000/- Rs.20,000/-
of life
3. Medical expenses Rs.23,371/- Rs.23,371/-
4. Laid up period Rs.18,000/- Rs.23,500/-
charges
5. Medical, attendant Rs.12,000/- Rs.12,000/-
and incidental
charges
6. Loss of future Rs.1,38,240/- Rs.3,38,400/-
earnings
Total Rs.2,36,611/- Rs.4,67,271/-
22. To that extent the impugned judgment and
award is required to be modified and accordingly, I
proceed to pass the following:
ORDER
(i) Appeal is allowed in part.
(ii) Appellant/petitioner is entitled for
compensation in a sum of Rs.4,67,261/-
as against Rs.2,36,611/- granted by the
Tribunal together with interest at 6% per
annum on the enhanced compensation.
(iii) Respondent No.2 is directed to pay the
compensation together with accrued
interest within a period of six weeks
from the date of this order (minus the
compensation already paid/deposited).
(iv) Registry is directed to return the TCR
along with copy of this order to the
Tribunal.
Sd/-
JUDGE
sdu
