Santosh S/O Neelkantappa ... vs Sidharam S/O Annarao And Anr
2023 Latest Caselaw 701 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

        DATED THIS THE 11TH 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.202456/2018 (MV)

BETWEEN:

Santosh S/o Neelkantappa Sheelvant,
Age: 34 years, Occ: Goldsmith (Now Nil),
R/o: Near Siddharudh Math, Janata Layout,
Kalaburagi-585103.                              ... Appellant

(By Sri Bapugouda Siddappa, Advocate)

AND:

1.     Sidharam S/o Annarao,
       Age: Major, Occ: Business, Owner of
       Motorcycle Bearing No.KA-32/ED-1140,
       R/o: Suvarna Nagar, Kalaburagi-585103.

2.     The Divisional Manager,
       The United India Insurance Company Ltd.,
       Divisional Office, Opp: Sangam Talkies,
       Super Market, Kalaburagi-585102. ... Respondents

(By Sri Manvendra Reddy, Advocate for R2;
                                          MFA No.202456/2018

                             2



Notice to R1 dispensed with v/o dated 03.01.2019)

      This Miscellaneous First Appeal is filed under Section
173(1) of MV Act, praying to modify the judgment and award
dated 03.10.2018 passed in MVC No.256/2017 on the file of
II Addl. Senior Civil Judge & Member Motor Accident Claims
Tribunal Kalaburagi at Kalaburagi. And allow this appeal by
enhancing the compensation amount by Rs.19,15,700/- only
as claimed by the appellant before this Hon'ble Court, in the
interest of justice and etc.

      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 dated 03.10.2018 passed in MVC No.256/2017

on the file of the II Addl.Senior Civil Judge and MACT at

Kalaburagi (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.

MFA No.202456/2018

3. Briefly stated, the facts are that, on

22.01.2017 at about 01.30 p.m., one Dinesh while riding

the motor cycle bearing No.KA-32/ED-1140, along with

the petitioner as a pillion rider negligently skidded and

capsized the motor cycle causing injuries to the

petitioner. The petitioner was hospitalized for 14 days

and spent Rs.50,000/- towards treatment. He was

earning Rs.25,000/- per month as goldsmith. Before the

Tribunal, the petitioner claimed compensation of

Rs.25,00,000/-. The claim was opposed by the

Insurance Company. The Tribunal awarded Rs.5,84,300/-

with 6% interest.

4. Petitioner has pleaded inadequacy in the

compensation awarded by the Tribunal. It is urged by

him that the income assessed by Tribunal was on the

lesser side, that the disability was not properly assessed

and that future medical expenses, future prospects of MFA No.202456/2018

income have not been considered. He has sought

enhancement of compensation under different heads.

5. According to the learned counsel for the

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

month as goldsmith; has suffered fracture of tibia and

fibula which permanently disabled him from doing his

avocation, though doctor assessed the whole body

disability at 32%, the Tribunal took only 11%. No

compensation was awarded towards future medical

expenses, the compensation assessed by the Tribunal is

disproportionate to the gravity of the injuries and sought

for re-assessment and enhancement of compensation.

6. Per contra, learned counsel for the Insurance

Company contended that under different heads the

Tribunal has assessed compensation, the Medical Officer,

who issued the Disability Certificate was not the treating

Doctor, the Tribunal has rightly assessed the disability at MFA No.202456/2018

11% and it is still on the higher side as the petitioner can

sit and do his work on the table and there is no loss of

income due to injury. The Tribunal has taken the income

at Rs.8,000/- per month, awarded the adequate

compensation. Though he supported the impugned

judgment, he is fair enough to submit that a little

enhancement of compensation may be considered

towards pain and sufferings and loss of amenities only.

7. We have given our anxious consideration to

the arguments addressed on behalf of the parties and

perused the records.

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,

future prospects and assessment of compensation under

different heads. Petitioner contended that compensation MFA No.202456/2018

assessed is inadequate, whereas, the Insurance

Company supports the impugned judgment. Medical

records also point out that the petitioner was under

hospitalization for 14 days; medical bills points out

Rs.3,80,306/- was spent towards treatment, which the

Tribunal has considered correctly. The compensation

awarded by the Tribunal towards pain and sufferings,

loss of amenities, loss of income during laid up period,

towards attendant, food & nourishment and conveyance

charges and loss of income due to disability are on lower

side. Since the petitioner had not produced any proof of

income, the Tribunal took the income at Rs.8,000/- per

month. However, for a person with no proof of income,

Rs.10,250/- can be taken for the year 2017 and

particularly a person who is a goldsmith.

9. Ex.P15 is the Disability Certificate issued by

PW2, who had not treated the petitioner. The fracture of

Tibia and Fibula certainly cause discomforts in continuing MFA No.202456/2018

the profession by the petitioner, the percentage of

disability assessed at 32% for the whole body has no

rationale. The petitioner can continue his profession by

modifying his method of work. Hence the percentage of

disability can be taken at 10% instead of 11% taken by

the Tribunal. The petitioner requires to undergo future

treatment, for which compensation has to be assessed.

For the injuries suffered by the petitioner, he must have

been laid for at least six months. Hence, loss of income

during laid-up period should be taken for six months.

10. As seen from the impugned judgment, the

Tribunal has not considered 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 33 years, future prospects is

40% for those having no permanent employment.

MFA No.202456/2018

11. Taking into consideration all these factors, we

deem it proper to award Rs.40,000/- towards pain and

sufferings, Rs.3,80,300/- towards medical expenses,

Rs.15,000/- together for attendant charges, food &

nourishment and conveyance, Rs.61,500/- (Rs.10,250/-

x 6 months) for loss of income during laid-up period,

Rs.30,000/- towards loss of amenities and discomfort

and Rs.10,000/- towards future medical expenses.

12. As regards assessment of loss of income due

to disability, the petitioner was aged 33 on the date of

accident; the multiplier applicable to the age of petitioner

is '16'. As discussed above notional income of the

petitioner is Rs.10,250/- and by applying future

prospectus, the calculation will be; Rs.10,250/- + 40%

= Rs.14,350/-. Rs.14350/- x 12 x 16 x 10% =

Rs.2,75,520/-. All put together comes to Rs.8,12,320/-

as against Rs.5,84,300/- assessed by the Tribunal. It is

just and adequate compensation under the facts and MFA No.202456/2018

circumstances of the case. Thus, the petitioner is entitled

to enhanced compensation of Rs.2,28,020/- rounded off

to Rs.2,28,000/- and accordingly the appeal deserves to

be allowed.

13. In the result, the following:

ORDER The appeal is allowed in part.

The judgment and award passed by the Tribunal is modified.

The petitioner is entitled to enhanced compensation of Rs.2,28,000/- with interest at the rate of 6% per annum excluding future medical expenses.

Office is directed to transfer the amount if any in deposit, to the Tribunal, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE KNM/-