Shankar vs The Managing Director Nekrtc
2023 Latest Caselaw 7095 Kant

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                                                 NC: 2023:KHC-K:8051-DB
                                                      MFA No. 200256 of 2023




                                IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                             DATED THIS THE 9TH DAY OF OCTOBER, 2023

                                            PRESENT

                          THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                              AND
                              THE HON'BLE MR. JUSTICE RAJESH RAI K

                         MISCL. FIRST APPEAL NO.200256 OF 2023 (MV-I)

                      BETWEEN:

                      SHANKAR S/O RAMRAO PATIL
                      AGE: 48 YEARS, OCC: AGRICULTURE,
                      R/O: BABALAD DUDANI,
                      POST: SOLAPUR, TQ: & DIST:(MAHARASHTRA)
                      NOW AT: KANAKADAS BADAVANE,
                      VIJAYAPURA - 586 101.
                                                                 ...APPELLANT

                      (BY SRI KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)

Digitally signed by   AND:
SOMANATH
PENTAPPA MITTE
Location: HIGH
COURT OF              THE MANAGING DIRECTOR
KARNATAKA
                      NEKRTC, KALABURAGI
                      CENTRAL OFFICE SARIGE SADANA,
                      KALABURAGI - 585 102.
                                                                ...RESPONDENT

                      (BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE)

                           THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
                      VEHICLES ACT, 1988 ACT, PRAYING TO CALL FOR THE
                      RECORDS,    MODIFY THE JUDGMENT AND AWARD DATED
                      03.12.2021 PASSED IN M.V.C.NO.288/2019 ON THE FILE OF
                      THE COURT OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND
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                                NC: 2023:KHC-K:8051-DB
                                      MFA No. 200256 of 2023




MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XV,
VIJAYAPURA AT VIJAYAPURA AND ALLOW THIS APPEAL BY
ENHANCING THE COMPENSATION AMOUNT BY RS.15,21,700/-
ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS COURT IN
THE INTEREST OF JUSTICE AND EQUITY, ETC.

   THIS APPEAL COMING ON FOR ORDERS, THIS DAY
MOHAMMAD NAWAZ J., DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is directed against the judgment and

award dated 03.12.2021 passed in MVC No.288/2019 by

the Motor Accident Claims Tribunal No.XV, Vijayapura,

wherein a total compensation of `2,28,300/- has been

awarded to the appellant/claimant for the injuries

sustained by him in a road traffic accident which took

place on 12.12.2018 at about 4.50 p.m. on Indi-Almel

road near Teggihalli cross, involving a motor cycle bearing

Reg.No.MH-12/PF-7897 and a KSRTC bus bearing

Reg.No.KA-28/F-1998.

2. The Tribunal has held that the driver of the

KSRTC bus was rash and negligent in driving the vehicle

and responsible for the accident. Hence, directed the

NC: 2023:KHC-K:8051-DB MFA No. 200256 of 2023

respondent to pay the compensation amount with interest

at 6% per annum from the date of order till realisation.

3. The accident in question, involvement of the

offending vehicle and the liability of the respondent to pay

the compensation is not in dispute. It is contended by the

learned counsel for the appellant that due to the accidental

injuries, the appellant has sustained permanent disability

to an extent of 30% to 35% in respect of chest and the

doctor - PW-3 has issued the disability certificate as per

Ex.P-19, which is not properly appreciated by the Tribunal

and disability is wrongly taken as 7%. He contends that

the appellant was an agriculturist and due to the

permanent disability, he is unable to do any agricultural

activities and thereby lost the earning capacity. He

therefore contends that the disability should have been

taken as assessed by the doctor.

4. The learned counsel appearing for the

respondent vehemently contends that PW-3 is not the

doctor who treated the appellant and the Tribunal, having

NC: 2023:KHC-K:8051-DB MFA No. 200256 of 2023

appreciated the oral and documentary evidence on record,

has held that the appellant has suffered disability to the

extent of 20% in respect of the chest and when compared

to the whole body, the disability would be reduced. He

therefore contends that the disability was rightly assessed

by the tribunal at 7% to the whole body. He contends

that no grounds are made out to interfere with the

judgment and award passed by the Tribunal and

accordingly, sought to dismiss the appeal.

5. The doctor - PW-3 has issued disability

certificate as per Ex.P-19. X-ray film is produced and

marked as Ex.P-20 and radiology report as per Ex.P-21. It

is no doubt true that PW-3 is not the doctor who treated

the injured. However, he has denied the suggestion that

the injured/claimant has not suffered any permanent

physical disability and he issued the disability certificate in

order to help him. Even though PW-3 has admitted that

the fractures are united, he has stated that there is mal-

union. As per the disability certificate, the injured has

NC: 2023:KHC-K:8051-DB MFA No. 200256 of 2023

sustained disability to an extent of 30% to 35% in respect

of chest. He has not stated disability in respect of the

whole body and further he has not given the occupational

disability. The Tribunal has held that the injured has

suffered disability to an extent of 20% in respect of chest

and assessed the disability to the whole body at 7%. It is

observed by the Tribunal that since the injured took

treatment at Solapur, it would be difficult for him to secure

the presence of the doctor who treated him.

6. A perusal of the wound certificate marked as

Ex.P-12, shows that the appellant has suffered crack

fracture of 4th, 5th and 6th left side ribs and minimal left

haemopneumo-thorax. Considering the evidence of the

doctor - PW3, wherein, he has stated that though the

fractures are united but there is mal-union, we are of the

considered view that the disability to the whole body can

be assessed at 10% as against 7% assessed by the

Tribunal. The Tribunal has rightly taken the monthly

income of the appellant at `11,750/- and the multiplier

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'13'. The appellant is therefore entitled for a sum of

`1,83,300/- (`11,750/- x 12 x 13 x 10/100) under the

head 'loss of earning capacity on account of disability'.

7. Considering the nature of injuries and the

disability suffered, the appellant is awarded a sum of

`50,000/- under the head 'injuries, pain and suffering'. A

sum of `10,000/- is awarded under the head 'food,

nourishment and special diet' and a sum of `25,000/- is

awarded for 'loss of amenities in life'. `9,000/- awarded

towards attendant charges and conveyance charges,

`22,382/- awarded towards medical bills is just and

proper. Hence, the appellant is entitled for a total

compensation of `2,99,682/-, which is rounded off to

`3,00,000/-.

8. Hence, we proceed to pass the following:

ORDER

(i) The appeal is allowed in part.

NC: 2023:KHC-K:8051-DB MFA No. 200256 of 2023

(ii) The impugned judgment and award dated 03.12.2021 passed in MVC No.288/2019 by the Motor Accident Claims Tribunal No.XV, Vijayapura is modified.

(iii) The appellant is awarded a total compensation of `3,00,000/- as against `2,28,300/- awarded by the Tribunal, with interest @ 6% per annum from the date of claim petition till realisation.

(iv) Rest of the order passed by the Tribunal shall be intact.

Sd/-

JUDGE

Sd/-

JUDGE

SWK