Karnataka High Court

The Depot Manager vs Maibubsab Dadasab Madarkhan on 19 April, 2024

                                                  -1-
                                                            NC: 2024:KHC-D:6571
                                                        MFA No. 102368 of 2014
                                          C/W MFA No. 102369 of 2014, MFA No.
                                        102738 of 2014, MFA No. 102739 of 2014




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 19TH DAY OF APRIL, 2024

                                              BEFORE
                           THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                    MISCELLANEOUS FIRST APPEAL NO. 102368 OF 2014 (MV-)
                                           C/W
                      MISCELLANEOUS FIRST APPEAL NO. 102369 OF 2014
                      MISCELLANEOUS FIRST APPEAL NO. 102738 OF 2014
                      MISCELLANEOUS FIRST APPEAL NO. 102739 OF 2014

                   IN MFA NO. 102368 OF 2014

                   BETWEEN:

                   SRI. MAIBUSAB
                   S/O. DADASAB MADARKHAN,
                   AGE: 27 YEARS, OCC: SERVICE,
                   NOW NIL, R/O. LOKAPUR,
                   TQ: MUDHOL, DIST: BAGALKOT.
                                                                   ...APPELLANT
                   (BY SRI. HANAMANT R. LATUR, ADVOCATE)

                   AND:
Digitally signed
by ROHAN
HADIMANI T         THE DEPOT MANAGER,
Location: HIGH     NWKRTC,
COURT OF           BAILHONGAL DEPOT,
KARNATAKA
                   BAILHONGAL,
                   DIST: BELGAUM.

                                                                 ...RESPONDENT
                   (BY SMT. P. R. BENTUR, ADVOCATE)

                          THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
                   ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND
                   AWARD PASSED BY SENIOR CIVIL JUDGE AND ADDL. M.A.C.T,
                   BAILHONGAL, IN MVC NO.432/2013 DATED 24.06.2014, IN THE
                   INTEREST OF JUSTICE AND EQUITY.
                              -2-
                                          NC: 2024:KHC-D:6571
                                    MFA No. 102368 of 2014
                      C/W MFA No. 102369 of 2014, MFA No.
                    102738 of 2014, MFA No. 102739 of 2014



IN MFA NO. 102369 OF 2014

BETWEEN:

SUNIL S/O. BASAVARAJ VASTRAD,
AGE: 30 YEARS, OCC: SERVICE, NOW NIL,
R/O. LOKAPUR, TQ: MUDHOL,
DIST: BAGALKOT.

                                                 ...APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)

AND:

THE DEPOT MANAGER,
NWKRTC, BAILHONGAL DEPOT,
BAILHONGAL, DIST: BELGAUM.

                                               ...RESPONDENT
(BY SMT. P. R. BENTUR, ADVOCATE)

     THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND
AWARD PASSED BY SENIOR CIVIL JUDGE AND ADDL. M.A.C.T,
BAILHONGAL, IN MVC NO.433/2013 DATED 24.06.2014, IN THE
INTEREST OF JUSTICE AND EQUITY.

IN MFA NO. 102738 OF 2014

BETWEEN:

THE DEPOT MANAGER,
NWKRTC, BAILHONGAL DEPOT,
BAILHONGAL, DIST: BELGAUM,
REPRESENTED BY. ITS
CHIEF LAW OFFICER, HUBLI.

                                                 ...APPELLANT
(BY SMT. P. R. BENTUR, ADVOCATE)

AND:

SHRI. SUNIL. BASAVARAJ VASTRAD,
AGE: 30 YEARS, OCC: SERVICE, (NOW NIL),
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                                           NC: 2024:KHC-D:6571
                                     MFA No. 102368 of 2014
                       C/W MFA No. 102369 of 2014, MFA No.
                     102738 of 2014, MFA No. 102739 of 2014


R/O. LOKAPUR, TQ: MUDHOL,
DIST: BAGALKOT.
                                                ...RESPONDENT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)

      THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL
FOR THE RECORDS IN THE SENIOR CIVIL JUDGE AND ADDL.
M.A.C.T, BAILHONGAL AT: BAILHONGAL DATED 24.06.2014 IN MVC
NO.433/2013 AND SET ASIDE THE JUDGMENT AND AWARD DATED
24.06.2014 IN THE INTEREST OF JUSTICE.

IN MFA NO. 102739 OF 2014

BETWEEN:

THE DEPOT MANAGER,
NWKRTC, BAILHONGAL DEPOT,
BAILHONGAL, DIST: BELGAUM,
REPRESENTED BY ITS
CHIEF LAW OFFICER, HUBLI.

                                                  ...APPELLANT
(BY SMT. P. R. BENTUR, ADVOCATE)

AND:

SHRI. MAIBUBSAB DADASAB MADARAKHAN,
AGE: 27 YEARS, OCC: SERVICE, (NOW NIL),
R/O. LOKAPUR, TQ: MUDHOL, DIST: BAGALKOT.

                                                ...RESPONDENT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)

       THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL
FOR THE RECORDS IN THE SENIOR CIVIL JUDGE AND ADDL.
M.A.C.T, BAILHONGAL AT: BAILHONGAL DATED 24.06.2014 IN MVC
NO.432/2013 AND SET ASIDE THE JUDGMENT AND AWARD DATED
24.06.2014 IN THE INTEREST OF JUSTICE.


       THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                                      NC: 2024:KHC-D:6571
                                        MFA No. 102368 of 2014
                          C/W MFA No. 102369 of 2014, MFA No.
                        102738 of 2014, MFA No. 102739 of 2014


                              JUDGMENT

Though these appeals are listed for admission, with the

consent of learned counsel for the parties, they are taken up

together for final disposal, as these appeals arise out of the

same accident.

2. MFA.No.102368/2014 & MFA.No.102369/2014 are

filed by the claimants/injured seeking enhancement of

compensation and MFA No.102738/2014 & MFA

No.102739/2014 are filed by the Corporation challenging the

quantum of compensation. All these appeals are arising out of

the common judgment and award dated 24.06.2014 passed in

MVC.No.432 & 433 of 2013 by the Senior Civil Judge & Addl.

MACT, Bailhongal.

3. Heard the learned counsel Sri.Hanamant R Latur,

appearing for appellant/claimant in both the appeals and Smt.

P.R. Bentur, learned counsel appearing for respondent/

Corporation.

4. Learned counsel for the appellant/claimant in both

the appeals submits that the Tribunal committed grave error in

assessing the income, disability and award of compensation by

the Tribunal on all other heads are required to be

NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

re-assessed by considering the evidence available on record.

Hence, he seeks to allow the appeals filed by the claimants.

5. Per contra, Smt. P.R. Bentur, learned counsel

appearing for the respondent/Corporation supports the

impugned judgment and award of the Tribunal with regard to

the income and assessment of disability of the

injured/claimant. She submits that the Tribunal committed

grave error in awarding compensation in both the appeals

under the head of loss of future prospects of the

injured/claimant. The present claim petitions are the cases of

injuries and not the death. Hence, question of awarding any

compensation under the head of loss of future prospects would

not arise. She further submits that the Tribunal has awarded

exorbitant compensation under the heads of loss of pain and

sufferings, loss of amenities and other heads. She seeks to re-

assess the same appropriately by dismissing the appeals filed

by the claimants and allowing the appeals of the Corporation.

6. I have heard the arguments of learned counsel for

appellant/claimant and learned counsel for respondent/

Corporation and perused the material available on record.

NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

7. In MFA No.102368/2014 (MVC No.432/2013), The

claimants has sustained fractures of:

i. 1 CLW 5x4 cms over the postero lateral aspect of the right thigh in its middle 1/3rd. ii. CLW 4x3 cms over the postero lateral aspect of the right leg in its lower 1/3rd.

iii. Laceration 6x3 over antero lateral and posterior aspect of the right forearm in its middle 1/3rd. iv. Groseal Abrasion skin deep over the following areas.

     v.      Both knee joints.
     vi.     Contusion 4x3 cms over the lateral aspect of the

right femur in its upper end pain and tenderness present over the right femoral joint. vii. Displaced fracture of mid shaft of femur noted. viii. Comminuted displaced fracture of dustak 3rd and Tibia and Fibula noted.

ix. Displaced fracture of mid shaft of radius and ulna noted.

x. Fracture of right femoral head and neck and also sustained internal injuries all over the body.

8. In support of the claim petition, the claimant

examined himself as PW1 and examined Dr.B.F. Patil. The

Doctor has deposed before the Tribunal that the claimant has

sustained 40% of disability to right upper limb and 60%

NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

disability to right lower limb and issued disability certificate at

Ex.P128. The Tribunal assessed disability of the injured at 33%

by notionally assessing his income at Rs.6,000/- per month.

This Court taking note of the aforesaid injuries and oral

testimony of PW3 and disability certificate on record is of the

considered view that it would be just and appropriate to assess

disability of the appellant/injured at 40%. The material

available on record indicate that the appellant was working as

Head Master in Netaji Subhaschandra Bose Primary School at

Lokapur and was drawing salary of Rs.11,800/- as per Ex.P129.

This Court taking note of the documentary evidence available

on record and considering the pleading and oral testimony of

the claimant is of the considered view that it would be just and

appropriate to assess the income of the injured at Rs.10,000/-

per month after deducting Provident Fund and Professional Tax

and other deductions. Thus, the appellant/claimant would be

entitled to modified compensation on the head of loss of future

income due to disability as under:

Rs.10,000 x 12 x 17 x 40% = Rs.8,16,000/-

9. The appellant is entitled to Rs.30,000/-(10,000x3)

under the head of loss of income during laid-up period as

NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

against Rs.18,000/-. Insofar as award of compensation on

other heads, it is just and proper and no modification is

required. It is made clear that the Tribunal has committed error

in awarding compensation under the head of loss of future

prospects of the injured which he is not entitled. Thus, in all,

the appellant is entitled to modified compensation on the

following heads:

     Pain and suffering                        Rs. 1,00,000/-
     Medical expenses incurred                 Rs. 1,60,000/-
     Loss of amenities                         Rs. 50,000/-
     Loss of income during laid-up period      Rs. 30,000/-
     Incidental expenses                       Rs. 25,000/-
     Future medical expenses                   Rs. 50,000/-
     Loss of future income                     Rs. 8,16,000/-
                                              ------------------
                   Total                       Rs. 12,31,000/-
                                              ------------------

10. Thus, the appellant in MFA No. 102368/2014 (MVC

No.432/2013) is entitled to total compensation of

Rs.12,31,000/- as against Rs.10,08,880/- awarded by the

Tribunal.

11. In MFA No.102369/2014 (MVC No.433/2013), The

claimants has sustained fractures of:

i. Laceration 10x5 cms over the antero lateral aspect of the right leg in its upper 1/3rd (Transverse) bone deep continued bleeding present.

NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

ii. Comminuted displaced fracture of upper 3rd of Tibia and Fibula and also sustained internal grievous injuries all over the body.

12. In support of the claim petition, the claimant

deposed before the Tribunal and also examined PW4-

Dr.B.F.Patil who has entered the witness box and deposed that

the claimant has sustained disability to the extent of 40% to

the right lower limb and he has also opined that the appellant

has suffered shortening of 2 cms of his leg. The Tribunal has

assessed disability at 13%. This Court on re-appreciation of the

medical evidence on record and taking note of the fact that the

claimants leg is shortened by 2 cms and assessed disability at

15%. The claimant was working as Assistant teacher in Netaji

Subhaschandra Bose Primary School at Lokapur and was

drawing salary of Rs.10,800/- per month and it is evident from

Ex.P208 and taking note of the oral testimony of PW2 and

documentary evidence on record, this Court re-assesses the

income of the injured at Rs.9,000/- per month. Thus, the

appellant/claimant would be entitled to modified compensation

on the head of loss of future income due to disability as under:

Rs.9,000 x 12 x 17 x 15% = Rs.2,75,400/-

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NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

13. The Tribunal has committed grave error in

awarding compensation under the head of loss of future

prospects of the injured which he is not entitled. Insofar as

award of compensation under the head of pain and sufferings is

unaltered. The appellant is entitled to an additional sum of

Rs.10,000/- under the head of loss of amenities and

Rs.27000/-(9000x3) under the head of loss of income during

laid-up period as against Rs.12,000/-. Insofar as award of

compensation by the Tribunal on other heads is unaltered.

Thus, in all, the appellant is entitled to modified compensation

on the following heads:

     Pain and suffering                            Rs. 40,000/-
     Medical expenses incurred                     Rs. 53,000/-
     Loss of amenities                             Rs. 30,000/-
     Loss of income during laid-up period          Rs. 27,000/-
     Incidental expenses                           Rs. 10,000/-
     Future medical expenses                       Rs. 25,000/-
     Loss of future income                         Rs.2,75,400/-
                                                  ------------------
                   Total                           Rs. 4,60,400/-
                                                  ------------------

14. Thus, the appellant in MFA No.102369/2014 (MVC

No.433/2013) is entitled to total compensation of

Rs.4,60,400/- as against Rs.3,98,680/- awarded by the

Tribunal.

15. For the aforementioned reasons, this Court

proceeds to pass the following:

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NC: 2024:KHC-D:6571

C/W MFA No. 102369 of 2014, MFA No. 102738 of 2014, MFA No. 102739 of 2014

ORDER

a) All the appeals filed are allowed in part.

b) The impugned common judgment and award of the Tribunal is modified holding that the appellant in MFA No.102368/2014 (MVC No.432/2013) is entitled to total compensation of Rs.12,31,000/- as against Rs.10,08,880/- awarded by the Tribunal; the appellant in MFA No.102369/2014 (MVC No.433/2013) is entitled to total compensation of Rs.4,60,400/- as against Rs.3,98,680/- awarded by the Tribunal.

c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petitions till date of realization.

d) The appellant/Corporation, 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.