Karnataka High Court
Yenkangouda S/O Doddana Gouda vs Basappa S/O Basappa Sajjan And Anr on 28 November, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2023:KHC-K:8868
MFA No. 200277 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
MISCL. FIRST APPEAL NO.200277/2020 (MV)
BETWEEN:
YENKANGOUDA
S/O DODDANA GOUDA,
AGED ABOUT 51 YEARS, OCC: BUSINESS,
R/O MADLAPUR VILLAGE,
TQ. MANVI, DIST. RAICHUR,
NOW AT LBS NAGAR,
AT RAICHUR- 584101.
...APPELLANT
(BY SRI BASAVARAJ R. MATH &
Digitally signed
by LUCYGRACE SMT. VIJAYALAXMI, ADVOCATES)
Location: HIGH
COURT OF AND:
KARNATAKA
1. BASAPPA
S/O BASAPPA SAJJAN,
AGE: MAJOR OCC: OWNER OF BOLERO CAR
BEARING NO.KA-36/M-4274,
R/O JALIHAL VILLAGE,
TQ. SINDHANUR,
DIST. RAICHUR- 584128.
2. THE RELIANCE GENERAL INSURANCE COMPANY
LTD.,
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NC: 2023:KHC-K:8868
MFA No. 200277 of 2020
NO.40, 1ST FLOOR, SLV TOWERS,
PARVATHI NAGAR,
MAIN ROAD,
BELLARY- 583101.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R2
R1-V/O DATED 21.01.2021 NOTICE DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE
RECORDS AND MODIFY THE IMPUGNED JUDGMENT AND
AWARD DATED 02.08.2019 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MACT, RAICHUR,
IN MVC NO.460/2014.
THIS MFA COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The injured-claimant is before this Court
aggrieved by the judgment and award dated 02.08.2019
passed in MVC No.460/2014 by the Addl. MACT, I
Additional District and Sessions Judge, Raichur,
('Tribunal'), by which, the Tribunal while partly allowing
the claim petition filed by the appellant has awarded
compensation of Rs.1,85,000/- with interest at 9% per
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annum from the date of petition till realization and
directed the 2nd respondent-Insurance Company to pay the
same.
2. Sri Basavaraj R. Math, learned counsel for the
appellant-claimant reiterating the grounds urged in the
memorandum of appeal submits that considering the
nature of the injuries sustained by the appellant as also
stated in the Disability Certificate produced at Ex.P7,
wherein, permanent disability having been assessed at
10% the Tribunal grossly erred in not taking the same into
consideration on an erroneous premise that the said
document at Ex.P7 has been obtained after 7 years from
the date of accident. It is his case that the accident
occurred on 29.03.2011 and the claim petition was filed in
the year 2014 and Disability Certificate was obtained when
the matter was set down for trial. Thus, he submits that it
was normal for the claimant to have obtained the
Disability Certificate after lapse of 7 years in the aforesaid
events. He further submits that even in the Disability
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Certificate the description of the injuries sustained by the
claimant are one which are shown in the Wound Certificate
produced at Ex.P5. He further submits that the
compensation awarded by the Tribunal under other heads
is also very meager, hence, prayed for allowing the appeal
by enhancing the compensation.
3. Per contra, Sri Subhash Mallapur, learned
counsel for respondent-Insurance Company justifying the
order of the Tribunal submits that the nature of avocation
claimed to have been carried on by the claimant was of
Contractor, no material is produced with regard to
reduction of the income of the claimant on account of the
injuries sustained in the said accident. He further submits
that the obtaining and furnishing of the Disability
Certificate after lapse of 7 years itself indicates that the
said document had been brought upon to make a false
case, thus, he seeks for dismissal of the appeal.
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4. Heard the learned counsel for the parties and
perused the records.
5. Accident that occurred on 29.03.2011 and the
claimant sustaining the injuries thereof is not in dispute.
As per the Wound Certificate Ex.P5 the claimant is stated
to have sustained the following injuries:
"1. contusion over left shoulder measuring
10 x 10 cm.
Diagnosis:- Spiral fracture proximal 3rd
humerus left side."
6. It is also stated that the claimant even after
undergoing treatment, there is no proper union of the
injuries. Though the claimant has taken treatment in the
year 2011, the Disability Certificate Ex.P7 has been issued
by PW2 - Doctor after 7 years. The Tribunal taking the
into consideration the delay in issuing Disability Certificate
has declined to accept the same. There is considerable
force in the submission made by the learned counsel for
the appellant that nothing is placed on record to disbelieve
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the Disability Certificate as the disability and the injuries
sustained have proximity and there are no intervening
factors. However, the Wound Certificate would indicate
disability to the whole body at 10% and no disability to the
particular limb provided therein. Nevertheless considering
the nature of injuries sustained by the claimant, more
particularly of the fact that there is a mal-union of the
fracture, this Court is of the considered view that the
disability could be assessed at 5%.
7. Though the claimant claims to have been
earning his livelihood by earning Rs.25,000/- per month
from his work as Civil Contractor. Since, the Tribunal has
declined to accept the disability no compensation in that
regard is granted. This Court has held that the disability
of the claimant is to be assessed at 5%. In the absence of
material evidence to prove the income of the claimant, this
court takes into consideration the chart prepared by the
Karnataka State Legal Services Authority, in terms of
which, notional income of the victims of the accidents of
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the year 2011 is assessed at Rs.6,000/- per month and
the same is taken in this case as well. As such,
considering the age of the appellant being 45 years at the
time of accident, the multiplier of '14' is applicable.
8. Calculated as above, the loss of future income
of the appellant would be:
Rs.6,000/- x 12 x 14 x 5% = 50,400/-
9. The Tribunal has awarded Rs.35,000/- towards
pain and suffering, the same is enhanced to Rs.50,000/-
by adding Rs.15,000/-. The Tribunal has awarded a total
sum of Rs.50,000/- towards residuary disability, physical
impairments, loss of amenities in life, disadvantages,
inconvenience and frustration etc. In view of the fact that
though the claimant had undergone treatment there is a
mal-union of the fracture and the injury is caused to the
left hand of the claimant, it may not be ruled out that the
same would be causing continuous inconvenience
depriving of amenities in life to the claimant. In that view
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of the matter, the total compensation of Rs.50,000/-
awarded by the tribunal under the said head is enhanced
to Rs.75,000/- by adding Rs.25,000/-. The compensation
awarded under other heads are maintained as it is.
10. The Tribunal has awarded 9% interest per
annum from the date of petition till realization, which
requires to be reduced to 6% per annum on the entire
compensation.
11. In view of the above, the appeal is allowed in
part. The impugned judgment and award passed by the
Tribunal is modified accordingly. The appellant is entitled
to the compensation of Rs.2,75,400/- with 6% interest per
annum from the date of petition till realization as against
Rs.1,85,000/- with interest at 9% per annum.
12. The respondent - Insurance Company is
directed to deposit the entire compensation with interest
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within a period of 6 [six] weeks from the date of receipt of
a copy of this judgment.
13. The entire enhanced amount with interest shall
be released in favour of the claimant immediately after
deposit by the respondent - Insurance Company.
Sd/-
JUDGE
SBS
