Karnataka High Court
Sri.Basavraj S/O Sangappa ... vs Sri.Kishan Kumar S/O Nandram ... on 9 June, 2023
Bench: S G Pandit, Vijaykumar A.Patil
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MFA No. 103515 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 103515 OF 2019 (MV-I)
BETWEEN:
SRI. BASAVRAJ S/O. SANGAPPA BADAWADAGI
AGE: 45 YEARS, OCC: PEON NOW NIL,
R/O: HUNGUND-587118, TQ: HUNGUND,
DIST: BAGALKOT.
...APPELLANT
(BY SRI. N. L. BATAKURKI, ADVOCATE)
MOHANKUMAR
B SHELAR AND:
Digitally signed by
1. SRI.KISHAN KUMAR S/O NANDRAM YADAV
MOHANKUMAR B
SHELAR AGE: 48 YEARS, OCC: BUSINESS & OWNER OF
Location: High Court of
Karnataka, Dharwad LORRY NO. H.R.55/W.3091,
Date: 2023.06.15
11:02:46 +0530 R/O: 62 MILE STONE NH 8, VPO VILLSIDHRAWALLI,
GURGAON-110038, (HARYANA STATE).
2. THE BRANCH MANAGER,
HDFC ERGO INSURANCE CO. LTD., JEENEVA HOUSOE,
2ND FLOOR, CUNNINGHAM ROAD, BENGLAURU-560052,
(POLICY NO.2315201186642400000
VALID FROM 04/09/2015 TO 03/09/2016)
...RESPONDENTS
(NOTICE TO R1 DISPENSED WITH,
SRI. NAGARAJ C. KOLLOORI, ADVOCATE).
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MFA No. 103515 of 2019
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 07.11.2018
PASSED IN MVC NO. 486/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-X, HUNGUND
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSAION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
VIJAYKUMAR A. PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the injured/claimant being
aggrieved by the Judgment and award dated 07.11.2018
passed by Senior Civil Judge and MACT X, Hungund
(hereinafter referred to as 'the tribunal' for short) in MVC
No.486/2016 seeking for enhancement of compensation.
The tribunal has awarded a compensation of
Rs.11,56,000/- with interest at the rate of 7% from the
date of petition till realization.
2. The brief facts giving rise to filing of this appeal
are, that the appellant has filed claim petition before the
MACT Hungund, under Section 166 of Motor Vehicles Act,
1988 claiming compensation of Rs.38,50,000/- on account
of injuries sustained by him. It is averred that, on
MFA No. 103515 of 2019
06.06.2016 at about 7.10 a.m., the appellant was pushing
motorcycle bearing registration No.KA-37/E-8159 on
footpath of Vijaynagar-Hospet National Highway, near
Dhannur cross of Hungund taluk. At that time, lorry
bearing registration No.HR-55/W-3091 heeding to Hospet
from Vijayapura and was being driven in a rash and
negligent manner and dashed the appellant. As a result,
the appellant sustained grievous injuries and he was
shifted to General Hospital, Hunagund, thereafter, Katti
Hospital, Bagalkot and then Kulkarni Hospital at Miraj, he
underwent Surgery, his leg was amputed and he has
incurred medical expenses of Rs.6,00,000/- and requires
Rs.2,00,000/- for further treatment. It is further averred
that, at the time of accident, he was aged about 40 years
and was working as Peon in C.V.Charantimath Diploma
Collage, Hungund drawing Rs.12,000/- per month. After
accident he is unable to do any work. It is also averred
that, the accident has taken place due to the rash and
negligent driving of the driver of the lorry bearing
registration No. HR-55/W3091 and the said Lorry is
MFA No. 103515 of 2019
insured with the respondent No.2. Hence, they are liable
for compensation.
3. The respondent No.1 remained ex-parte.
Respondent No.2 has filed objections before the tribunal
denying the claim petition averments, denied age,
avocation, entitlement and negligence. It is averred that,
the respondent No.1 has violated the terms and conditions
of the policy, hence, Insurance company is not liable to
pay any compensation and sought for dismissal of the
claim petition.
4. The tribunal based on the pleading framed the
issues and recorded the evidence of the parties. The
injured appellant has examined himself as P.W.1 and other
three witnesses, as P.W.2 to P.W.4 and got marked Ex.P.1
to P.16. The respondent have not examined any witness,
got marked Ex.R.1. The tribunal has awarded total
compensation of Rs.11,56,000/- under the following
heads:
MFA No. 103515 of 2019
Sl.No. Particulars Compensation
1 Pain and sufferings Rs.50,000/-
2 Medical expenses Rs.2,00,000/-
3 Loss of amenities Rs.30,000/-
4 Loss of income during Rs.27,000/-
treatment and rest
5 Attendant charges Rs.4,000/-
6 Food and nourishment Rs.5,000/-
7 Transportation and incidental Rs.5,000/-
charges
8. Loss of future income Rs.8,10,000/-
9 Artificial Limb Rs.25,000/-
Total Rs.11,56,000/-
5. Learned counsel Sri. N.L.Batakurki, for the
appellant submits that, the tribunal has committed error in
assessing the income of the appellant-injured at
Rs.9,000/-. Ex.P.1 is the certificate issued by the
employer, wherein, it is depicted that he was drawing
salary of Rs.10,569/- per month. It is submitted that, the
appellant-injured has taken treatment in different
hospitals and was inpatient for 37 days, has placed
medical bills for Rs.7,47,000/-. However, the tribunal has
erred in calculating the bills and awarded Rs.2,00,000/-
towards the medical expenses. It is further submitted that,
the doctor has opined that there is a permanent disability
MFA No. 103515 of 2019
of 75% to the left leg and 50% to the whole body.
However, the tribunal has committed error in considering
the disability at 50% contrary to the evidence on record. It
is also submitted that, the tribunal has granted meager
compensation towards pain and suffering, loss of
amenities, loss of income during treatment, attendant
charges, food and nourishment, transportation and
awarded meager compensation for artificial limb and on all
these heads the appellant is entitle for the higher
compensation.
6. Per contra, Sri. Nagaraj C. Kolloori, learned
counsel appearing for the respondent No.2 supports the
impugned Judgment and award, submits that, there is no
merit in the appeal filed by the appellant injured. The
tribunal has appreciated the evidence on record and
awarded just and proper compensation, does not call for
any interference in the present appeal. It is submitted
that, the tribunal has assessed the income of the injured
at Rs.9,000/- per month. Ex.P.11 is not the Salary slip nor
MFA No. 103515 of 2019
the author of the Exhibit has been examined and he is
working in the same institution, hence the assessed
income is correct and question of paying any
compensation to the loss of future prospects would not
arise. It is further submitted that, the tribunal has
calculated the medical bills and awarded Rs.2,00,000/-
which does not call for any interference and under other
heads also the tribunal has awarded proper compensation.
Hence, sought for dismissal of the appeal.
7. We have heard the learned counsel for the
appellant, respondent No.2, perused the memorandum of
appeal and the tribunal records.
8. On consideration of the above facts, the points
that arise for consideration in this appeal are:
(i) Whether the tribunal is justified in assessing
Rs.9,000/- as a notional income of the appellant?
(ii) Whether the tribunal has correctly calculated the
medical bills at Rs.2,00,000/-?
(iii) Whether any enhancement of the compensation
is required to be made in this appeal?
(iv) What orders?
MFA No. 103515 of 2019
9. The answer to the above questions are
negative for the following reasons:
There is no dispute with regard to the accident which
has occurred on 06.06.2016 and in the said accident the
appellant has sustained grievous injuries. He has taken
treatment in three different hospitals, incurred expenditure
and has produced the medical bills. It is also not in dispute
that, the appellant was aged about 40 years, was working
as peon in C.V.Charantimath Diploma Colleage, Hungund
and the Doctor has opined that he has suffered permanent
physical disability of 75% to the left leg and 50% to the
whole body and the tribunal has accepted the same as
50% of the permanent disability to the whole body as the
left leg of the appellant is amputed below the knee.
10. The tribunal has assessed the income of the
injured at Rs.9,000/- and given a finding that, the
appellant has not examined the author of Ex.P.11, hence
cannot accept that the appellant was working as a peon in
the collage and was drawing Rs.10,569/- per month. On
MFA No. 103515 of 2019
perusal of Ex.P.11 the certificate issued by the Principal,
V.M.V.V.Sangha's, School of Pharmacy, dated 01.01.2018
certifies that, the appellant was working as a peon since
11 years and his salary was Rs.10,569/- and due to lack of
fitness his service are terminated from 05.06.2016. The
Principal of the recognized Pharmacy collage who is
holding responsible post has issued the certificate
certifying that the appellant was drawing Rs.10,569/- and
the appellant has been discontinued from service because
of his fitness, we do not find any reason to disbelieve the
certificate at Ex.P.11. The contention that the author of
Ex.P.11 is not examined is required to be rejected as the
respondent have not placed any contrary evidence before
the tribunal to disbelieve Ex.P.11. Hence, we assess the
income of the appellant-injured at Rs.10,569/- per month.
Hence, the loss of future earning would be as under:
Rs.10,569/- X 12 = Rs.1,26,828/- X 50%
(Rs.63,414/-). Rs.63,414/- X 15 = Rs.9,51,210/-.
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MFA No. 103515 of 2019
11. It is also not in dispute that, the appellant-
injured is aged about 40 years, he was inpatient for a
period of 37 days, and has produced the bills before the
tribunal as Ex.P.8 claiming to have incurred Rs.6,00,000/-
towards the treatment. The tribunal has considered and
granted Rs.2,00,000/- towards the medical expenses. We
have gone through Ex.P.8 the medical bills available on
record and also the list of bills made available by the
learned counsel for the appellant. On cross-verification of
the bills with their prescriptions during the treatment
period, the actual medical bills amounts to Rs.3,28,652/-
which is required to be considered. The tribunal has
committed an error in considering Rs.2,00,000/- towards
the medical expenses and the appellant is entitled to
Rs.3,28,652/-. The same is not disputed by the learned
counsel for the Insurance company.
12. The tribunal has considered the disability at
50% to the whole body, we do not find any error in
assessing the disability and does not call for any
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MFA No. 103515 of 2019
interference. The tribunal has awarded Rs.50,000/-
towards the pain and suffering. The appellant was
inpatient for a period of 37 days, thereafter he has taken
subsequent treatment and his left leg was amputed. The
wound certificate at Ex.P.5 reveals that the appellant has
sustained four injuries, keeping these factors in mind, in
our considered view the appellant is entitled for
Rs.75,000/- for pain and suffering, instead of Rs.50,000/-.
13. The tribunal has awarded Rs.30,000/- towards
loss of amenities. In our considered view the nature of
injuries suffered by the appellant, we are of the opinion
that, under the head of loss of amenities, the appellant is
entitled to Rs.1,00,000/-, instead of Rs.30,000/-. The
tribunal has awarded Rs.27,000/- under the head of loss
of income during the treatment and rest. The said amount
is on lower side as the appellant was inpatient for a period
of 37 days and thereafter he was required to take rest for
a minimum for period of three months. Hence we assess
Rs.32,000/- for loss of income during the treatment
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MFA No. 103515 of 2019
period, instead of Rs.27,000/-. The tribunal has awarded
Rs.4,000/- as attendant charges and Rs.5,000/- for food
and nourishment. Keeping in mind that the injured was
inpatient for 37 days, we are of the view that
compensation awarded on the above heads are on the
lowerside. Taking note of the hospitalisation and treatment
taken, we are of the opinion that the appellant is entitled
for Rs.15,000/- towards the attendant charges and
Rs.20,000/- towards the food and nourishment. The
appellant has taken treatment in three different hospitals
and accident has taken place in Hungund and he has taken
treatment at Miraj, hence, the appellant is entitle for
Rs.15,000/- towards the transportation and incidental
charges instead of Rs.5,000/- awarded by the tribunal. The
tribunal has awarded Rs.25,000/- towards the artificial limb.
In our considered view, a reasonable good quality artificial
limb would not be available at the cost of Rs.25,000/-.
Hence, in our considered view the appellant is entitled for
Rs.75,000/- for purchase of artificial limb. The tribunal
has assessed disability and multiplier based on the
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MFA No. 103515 of 2019
evidence on record. The same does not call for any
interference in the present appeal. The appellant is
entitled for modified compensation as under:
Sl.No. Particulars Compensation Compensation
awarded by awarded by
tribunal this Court
1 Pain and sufferings Rs.50,000/- Rs.75,000/-
2 Medical expenses Rs.2,00,000/- Rs.3,28,652/-
3 Loss of amenities Rs.30,000/- Rs.1,00,000/-
4 Loss of income Rs.27,000/- Rs.32,000/-
during treatment and
rest
5 Attendant charges Rs.4,000/- Rs.15,000/-
6 Food and Rs.5,000/- Rs.20,000/-
nourishment
7 Transportation and Rs.5,000/- Rs.15,000/-
incidental charges
8. Loss of future income Rs.8,10,000/- Rs.9,51,210/-
9 Artificial Limb Rs.25,000/- Rs.75,000/-
Total Rs.11,56,000/- Rs.16,11,862/-
14. For the aforementioned reasons, we pass the
following:
ORDER
(i) The appeal is allowed in part;
(ii) The impugned Judgment and award
dated 07.11.2018 passed in MVC
No.486/2016 passed by Senior Civil
Judge and MACT X, Hungund is
modified;
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MFA No. 103515 of 2019
(iii) The appellant/claimant is entitled for
an additional compensation of
Rs.4,55,862/- along with interest at
6% per annum from the date of filing
of the petition, till its realization, in
addition to what has been awarded by
the tribunal.
(iv) The appellant is entitle to withdraw
50% of the enhanced compensation
amount and remaining 50% shall be
kept in Fixed Deposit in any
nationalized Bank for a period of three
years.
(v) The Insurance company is directed to
deposit the enhanced compensation
amount within eight weeks from the
date of receipt of certified copy of this
Judgment.
(vi) Registry is directed to return the trial
Court records, if any to the tribunal
along with certified copy of the
Judgment passed by this Court,
without any delay.
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MFA No. 103515 of 2019
(vii) No order as to costs.
(viii) Draw award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
