Karnataka High Court
Hidayat Ali Khan S/O Amanulla Khan ... vs Jaspal Singh on 6 July, 2023
Bench: S G Pandit, Vijaykumar A.Patil
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NC: 2023:KHC-D:6794-DB
MFA No. 100048 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.100048 OF 2020 (MV-I)
BETWEEN:
HIDAYAT ALI KHAN S/O AMANULLA KHAN PATHAN
AGED ABOUT : 44 YEARS,
OCC: SALES MANAGER IN COBRA ASSOCIATES,
R/O: MILLANTNAGAR, MANTUR ROAD,
HUBBALLI-580020, DIST: DHARWAD
...APPELLANT
(BY SRI. VIJAY S. CHINIWAR, ADVOCATE)
AND:
1. JASPAL SINGH
AGED ABOUT 47 YEARS,
R/OC-8/9, 2/3, 6 CBD BELAPUR
BELLAPUR NODE-III, THANE.
2. THE MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LIMITED,
V.A. KALBURGI SQUARE, DESAI CROSS,
Digitally
signed by
JAGADISH T
DESHPANDENAGAR, HUBBALLI, DIST: DHARWAD.
R
JAGADISH
TR
Location:
DHARWAD
Date:
...RESPONDENTS
2023.07.11
14:17:41 -
0700
(BY SRI.G.N. RAICHUR, ADVOCATE FOR R2) (R1-SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 04.10.2019 PASSED
IN MVC NO.147/2018 ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
HUBBALLI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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NC: 2023:KHC-D:6794-DB
MFA No. 100048 of 2020
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S.G. PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent
of both learned counsel, matter is taken up for final disposal.
2. The claimant-injured is before this Court
dissatisfied with the quantum of compensation awarded
under judgment and award dated 04.10.2019 in M.V.C.
No.147/2018 on the file of learned I Addl. Senior Civil Judge
and Addl. MACT, Hubballi (for short, 'Tribunal'), praying for
enhancement of compensation.
3. Heard learned counsel Sri.Vijay S Chiniwar for the
appellant and Sri.G.N. Racihur, learned counsel for
respondent No.2-Reliance General Insurance Company and
perused the appeal papers.
4. The appellant/claimant filed a claim petition under
Section 166 of the M.V. Act claiming compensation for the
injuries sustained in a road traffic accident that occurred on
29.10.2017 involving Tempo bearing registration No.KA-
02/AA-0184 and tanker lorry bearing registration No.MH-
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MFA No. 100048 of 2020
43/U-3885. It is stated that the appellant/claimant was aged
43 years as on the date of the accident and was working as a
Sales Manager in Cobra Associates and earning Rs.30,000/-
per month.
5. On service of notice, respondent No.2-Insurance
Company appeared through its counsel and filed statement
of objections denying the entire claim petition averments. It
was contended that driver of the tanker lorry was not holding
valid and effective driving license as on the date of the
accident. Thus, prayed for dismissal of the claim petition.
6. In order to prove the case of the claimant, five
witnesses were examined as PW1 to PW5 apart from marking
documents as Exs.P1 to P151. Respondent No.2 did not
examine any witness nor marked any documents. The
Tribunal on appreciation of the material on record awarded a
total compensation of Rs.5,43,130/- with interest at 6% per
annum from the date of petition till date of realization.
7. While awarding the above compensation, the
Tribunal assessed the income of the claimant/injured at
Rs.6,000/- per month, applied multiplier of 14 taking the age
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MFA No. 100048 of 2020
of the claimant as 43 years and assessed the disability of the
injured at 21% to the whole body. Not being satisfied with
the quantum of compensation, the claimant is before this
Court praying for enhancement of compensation.
8. Sri. Vijay S Chiniwar, learned counsel for the
appellant/claimant would submit that the income of the
claimant assessed by the Tribunal at Rs.6,000/- per month is
on the lower side, inasmuch as he was working as Sales
Manager in Cobra Associates and getting a salary of
Rs.30,000/- per month. In that view of the matter, learned
counsel prays for assessing the income of the
claimant/injured on the higher side. He further submits that
the Tribunal committed an error in assessing whole body
disability at 21% as against evidence of PW5, who opined
that the injured/appellant has sustained 63% disability to the
whole body. He further submits that the compensation
awarded on the other heads are also on the lower side.
Thus, he prays for enhancement of compensation.
9. Sri.G.N. Raichur, learned counsel for respondent
No.2-Insurance Company submits that in the absence of
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MFA No. 100048 of 2020
cogent material on record to establish the income of the
injured/appellant, the Tribunal is justified in assessing
notional income of the injured at Rs.6,000/- per month. He
further submits that the Tribunal is justified in assessing
disability of the injured to an extent of 21% to whole body,
since physical disability assessed by PW5 is with regard to a
particular limb. Further, learned counsel submits that
compensation awarded by the Tribunal on the other heads
are just and proper, which needs no interference. Thus, he
prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers, the only point that
would arise for consideration in this appeal is as to, whether
the appellant/claimant would be entitled for enhanced
compensation in the facts and circumstances of the case?
11. Our answer to the above point would be in the
affirmative for the following reasons.
12. The occurrence of the accident that took place on
29.10.2017 involving Tempo bearing registration No.KA-
02/AA-0184 and tanker lorry bearing registration No.MH-
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MFA No. 100048 of 2020
43/U-3885 resulting in injuries to the claimant is not in
dispute in this appeal. The claimant is before this Court
praying for enhancement of compensation. It is the
contention of the appellant/claimant that working as Sales
Manager in Cobra Associates and earning Rs.30,000/- per
month. The claimant in order to prove his avocation as Sales
Manager, examined the proprietor of Cobra Associates as
PW3. Though the claimant produced salary certificate, no
corroborative material for having received the amount is
placed on record. The claimant has not produced any cogent
or acceptable material to establish that he was getting salary
of Rs.30,000/- per month. Further, he has also not produced
any bank statement with regard to salary credited to his
account. In the absence of any material on record to
establish exact income of the appellant/claimant, this Court
and Lok Adalath while settling the accidental claims of the
year 2017, normally would assess notional income at
Rs.10,250/- per month, taking note of the chart prepared by
KSLSA based on various factors including the minimum wage
fixed. In the instant case also, in the absence of any material
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MFA No. 100048 of 2020
evidence to establish the income of the injured, we are of the
opinion that it would be just and appropriate for us to
determine the income of the injured at Rs.10,250/- p.m.
taking note of the income chart prepared by KSLSA including
the minimum wage fixed.
13. Ex.P6 is the wound certificate which reveals that
the claimant/injured has sustained cut lacerated wound right
elbow region with fracture of both radius and ulna
(comminuted fracture). The claimant examined the treated
doctor as PW5. PW5-doctor has issued disability certificate
which is marked as Ex.P150. On examination of clinical and
radiological examinations coupled with Ex.P150-disability
certificate and Ex.P6-Wound Certificate, PW5-Doctor has
opined that the claimant/injured has sustained permanent
physical disability to an extent of 63% to a particular limb.
The Hon'ble Apex Court in catena of decisions has made it
clear that 1/3rd of disability to a particular limb has to be
taken as disability to the whole body. Therefore, the Tribunal
is right in taking the disability of the claimant/injured at 21%
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MFA No. 100048 of 2020
to the whole body, which is proper and correct, needs no
interference.
14. There is no dispute with regard to the age of the
claimant i.e. 43 years. The multiplier applicable to the age of
the claimant is 14. Thus, the claimant would be entitled to
compensation on the head of loss of earning capacity at
Rs.3,61,620/- (Rs.10,250 X 12 (months) x 14 (multiplier) x
21/100 (disability).
15. Further, the Tribunal awarded a sum of
Rs.30,000/- towards pain and suffering, which in our view is
on the lower side and same is enhanced to Rs.50,000/-.
The Tribunal awarded a sum of Rs.10,000/- towards of loss
of amenities, which in our view is on the lower side and
therefore, same is enhanced to Rs.40,000/-. Since the
claimant was an inpatient for about 14 days, we deem it
appropriate to award a sum of Rs.30,750/- on the head of
loss of income during laid up period for three months. The
Tribunal awarded a sum of Rs.12,000/- towards food, diet,
nourishment and attendant charges, which is on the lower
side and same requires to be enhanced to Rs.19,000/-. The
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Tribunal awarded a sum of Rs.2,67,450/- towards medical
expenses, which in our view is just and proper and same is
undisturbed.
16. Thus, the claimant would be entitled to modified
compensation as under:
Sl.No. Particulars Amount
1. Pain & suffering Rs. 50,000/-
2. Medical expenses Rs.2,67,450/-
3. Loss of earning capacity Rs.3,61,620/-
4. Loss of amenities Rs. 40,000/-
5. Loss of income during laid-up Rs. 30,750/-
period for three months
6. Nourishment food, attendant Rs. 19,000/-
charges and conveyance etc.
Total Rs.7,68,820/-
17. Thus, the claimant would be entitled to total
compensation of Rs.7,68,820/- as against Rs.5,43,130/-
awarded by the Tribunal.
18. In the result, we pass the following order:
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and award passed
by the Tribunal is modified to an extent
that the claimant would be entitled to total
compensation of Rs.7,68,820/- as
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MFA No. 100048 of 2020
against Rs.5,43,130/- awarded by the
Tribunal.
c) The enhanced compensation amount shall
carry interest at the rate of 6% per annum
from the date of petition till date of
payment.
d) Respondent No.2-Insurer shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
e) Apportionment, deposit and disbursement
of the enhanced compensation amount
shall be made as per award of the
Tribunal.
f) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
