Karnataka High Court
Shri.Ashok S/O Ningappa ... vs Shri.Arun S/O Gurappa Charati on 11 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 100373 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.100373 OF 2016 (MV-I)
BETWEEN:
SHRI ASHOK S/O NINGAPPA SHIRAHATTI,
AGE: 31 YEARS, OCC: AGRICULTURE NOW NIL,
R/O: BELLAD BAGEWADI-591305,
TALUKA: HUKERI, DISTRICT: BELAGAVI.
...APPELLANT
(BY SHRI SMT. SUNANDA P. PATIL, ADVOCATE)
AND:
1. SHRI ARUN S/O GURAPPA CHARATI,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: BELLAD BAGEWADI-591305,
TALUKA: HUKERI, DISTRICT: BELAGAVI,
(OWNER OF MOTOR CYCLE NO.KA-49/K-2977).
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, CLUB ROAD,
BELAGAVI-591001, (INSURER OF MOTORCYCLE
NO.KA-49/K-2977, POLICY NO.472502/31/2013/814
VALID FROM 11.05.2012 TO 10.05.2013)
...RESPONDENTS
(BY SHRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R2;
SERVICE OF NOTICE TO R1-SERVED)
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MFA No. 100373 of 2016
THIS MISC .FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHIC LES ACT, 1988,
PRAYING TO SET-ASIDE THE JUDGMENT AND AWARD
DATED 01.08.2015 IN MVC NO.204/2013 PASSED BY
THE III ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, BELAGAVI TO THE EXTENT OF
DISALLOWED CLAIM AND ENHANCE THE
COMPENSATION TO THE TUNE OF RS.4,00,000/- IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL IS COMING ON FOR ADMISSION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated
01.08.2015 passed by III Additional Senior Civil
Judge and Additional MACT, Belagavi, (for short,
'tribunal') in MVC No.204/2013, this appeal is filed
by claimant for enhancement of compensation.
2. Brief facts as stated are that in an
accident that occurred on 04.10.2012, claimant
Ashok who was proceeding on his bicycle on
Kabbur-Bellad-Bagewadi road, when rider of
motorcycle bearing registration no.KA.49/K-2977
riding it in a rash and negligent manner dashed
against claimant. In accident, claimant sustained
MFA No. 100373 of 2016
grievous injuries and was shifted to KLE Hospital.
Despite treatment, he did not recover fully and
sustained permanent physical disability. Claiming
compensation, he filed MVC no.204/2013 under
Section 166 of Motor Vehicles Act (hereinafter
referred to as 'M.V. Act' for short) against owner
and insurer of motorcycle.
3. On contest after framing issues, Tribunal
recorded evidence of claimant as PW1 and
Dr.B.S.Bhagi as PW2. Exhibits P1 to 21 were
marked. On behalf of respondent, copy of driving
license was got marked with consent as Exhibit R1.
4. On consideration, Tribunal held that
accident occurred due to rash and negligent riding
of insured vehicle by its rider and same was
insured with respondent no.2/insurer. It assessed
compensation of Rs.40,522/- awarded same to
claimant holding insurer is liable to pay same. Said
MFA No. 100373 of 2016
award is not challenged by insurer, only claimant
is in appeal for enhancement of compensation.
5. Smt. Sunanda P.Patil, leaned counsel for
appellant-claimant submitted that claimant was 28
years old agriculturist earning more than
Rs.2,00,000/- per annum. In accident, he
sustained upper jaw front dento-alveolar fracture
with loss of four teeth in upper jaw. Same was
assessed by PW2/dentist as causing 38% disability
and about 13% to whole body. However, while
determining compensation, Tribunal did not award
any compensation towards loss of future loss of
income. It also did not award future medical
expenses or incidental charges. It was submitted
that even award towards pain and suffering and
loss of amenities at Rs.11,000/- each was grossly
inadequate and sought enhancement.
MFA No. 100373 of 2016
6. Referring to deposition of PW2, it was
submitted that during cross-examination of PW2
counsel for insurer suggested that whole body
disability would be 13% which was denied. It was
submitted that by said submission, it was deemed
admitted by insurer that whole body disability
would be 13%. Tribunal failed to take note of this
important aspect of matter. Learned counsel
further submitted that fracture was treated with
implants, which require periodic maintenance and
treatment. Therefore, sought for award of
appropriate amount towards future medical
expenses.
7. On other hand, Shri Rajashekhar S.
Arani, learned counsel for respondent-insurer
sought to support award and opposed
enhancement. It was submitted that admittedly
disability sustained was in respect of teeth which
would not have any effect on earning capacity. It
MFA No. 100373 of 2016
was submitted that after taking appropriate
treatment, claimant had approached Tribunal and
by considering medical bills towards treatment
taken, claimant was granted sufficient
compensation and there was no scope for award of
future medical expenses. It was further submitted
that in discharge summary, doctor had specifically
mentioned about nature of treatment administered
which was permanent in nature and therefore,
there could not be any presumption drawn about
its effect on earning capacity. It was submitted
that considering nature of injuries sustained,
award of compensation towards pain and suffering
and amenities was adequate.
8. Heard learned counsel and only point that
would arise for consideration is:
"Whether claimant is entitled for enhancement as
sought for?"
MFA No. 100373 of 2016
9. Insofar as loss of earning capacity,
learned counsel for claimant-appellant has placed
premium on suggestion by insurer counsel to PW2
about extent of disability. However, on careful
perusal of suggestion in comparison with
Ex.P18/disability certificate it would imply that in
response to doctor suggesting whole body
disability at 13%, suggestion by insurer was that
there would be no such disability. Said suggestion
is denied. Same cannot by itself be taken as an
admission of whole body disability to 13%. From
treatment records and discharge summary/
Exhibits P9 and 10, it is seen that claimant has
been treated by inserting implants which are
permanent in nature. Though they might require
periodic maintenance, evidence on record would
not indicate that there would any permanent
disability. Therefore, I am of considered opinion
that Tribunal was justified in not awarding
MFA No. 100373 of 2016
compensation towards future loss of income.
However, nature of treatment itself would imply
additional pain and discomfort. Award of
Rs.11,000/- towards pain and suffering when
claimant has sustained dental fracture would not
be justified. Compensation towards pain and
suffering would be inadequate. For fracture it is
deemed fit to award compensation of Rs.25,000/-
and for pain, suffering and discomfort caused
during and post treatment, I propose to award
another sum of Rs.20,000/-.
10. PW2 has also stated that fracture has
united which would fortify my finding that there
would be no loss of earning capacity. Therefore, it
would be appropriate to award a sum of
Rs.45,000/- towards functional disability.
MFA No. 100373 of 2016
11. Apart from said compensation, claimant
is awarded sum of Rs.15,000/- towards future
medical expenses.
12. Tribunal has awarded sum of Rs.11,000/-
towards loss of amenities. Claimant has lost four
upper teeth, Tribunal has awarded sum of
Rs.11,000/- towards loss of amenities which
appears adequate and not enhancement is called
for.
13. Insofar as claim for loss of income during
laid up period, considering nature of treatment and
duration, it would be appropriate to award loss of
income during laid up period for one month.
Notional income for year 2012 is Rs.6,500/-. Thus,
claimant is held entitled for total compensation as
follows;
"Rs.6,500/- + Rs.15,000/- + Rs.45,000/- +
Rs.18,522/- + Rs.11,000/-=Rs.96,022/-."
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MFA No. 100373 of 2016
Point for consideration is answered partly in
affirmative.
14. In the result, I pass the following:
ORDER
i. Appeal is allowed in part.
ii. Claimant is held entitled for reassessed
compensation of Rs.96,022/- as against
Rs.40,522/- awarded by tribunal with
interest at 6% per annum from date of
claim petition till deposit.
iii. Insurer is directed to deposit enhanced
compensation within six weeks from date
of receipt of certified copy of this order.
SD/-
JUDGE
AM
