Karnataka High Court
Shri.Nayeem Khan S/O. Ajmal Khan Pathan vs Shri.Ravikumar S/O. Chutaram Beshnoi on 2 August, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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MFA No. 100440 of 2019
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF AUGUST, 2024
PRESENT
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO.100440 OF 2019 (MV-I)
BETWEEN:
SHRI.NAYEEM KHAN S/O. AJMAL KHAN PATHAN
AGE: 34 YEARS, OCC: FABRICATOR (NOW NIL),
R/O. 7TH CROSS, VEERBHADRA NAGAR,
TAL AND DIST:BELAGAVI-590010.
...APPELLANT
(BY SMT. GEETHA K.M., ADVOCATE)
AND:
1. SHRI. RAVIKUMAR S/O. CHUTRARAM BISHNOI
AGE: MAJOR, OCC: BUSINESS,
R/O. PABU NAGAR, CHODA,JODHAPUR,
DIST:JODHPUR-342001, RAJASTHAN.
(OWNER OF TATA TRAILER
BERARING NO.RJ 19 GF 3029)
Digitally signed 2. THE MANAGER
by JAGADISH T
R NATIONAL INSURANCE CO.LTD.,
Location: High
Court of RAMDEV GALLI, BELAGAVI-590002.
Karnataka (INSURER OF TATA TRAILER BEARING NO.RJ19 GF 3029)
Dharwad Bench
3. SHRI MOHAMED SHARIF S/O. B.D. AMIR SAHAB,
AGE:MAJOR, OCC: BUSINESS,
R/O. KAZI MOHALLA, TAL:HOLAL KERI,
DIST:CHITRADURG-577501.
(OWNER OF EICHAR GOOD VEHICLE
BEARING NO. KA- 16 B 6673)
4. THE MANAGER
NATIONAL INSURANCE CO.LTD.,
RAMDEV GALLI, BELAGAVI-590002.
(INSURER OF EICHAR GOOD VEHICLE
BEARING NO. KA 16 B 6673)
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NC: 2024:KHC-D:10972-DB
MFA No. 100440 of 2019
...RESPONDENTS
(BY SRI. SURESH S. GUNDI, ADVOCATE FOR R2 & R4,
R3-SERVED, R1- DISPENSED WITH)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 15.10.2018
PASSED IN MVC NO.1131/2017 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)
1. This appeal is filed by the injured-
appellant/claimant seeking enhancement of compensation
being aggrieved by the judgment and award dated
15.10.2018 passed in MVC No.1131/2017 on the file of the
Prl. Sr. Civil Judge & CJM and Addl. MACT, Belagavi.
2. Brief facts leading to filing of this appeal are
that, on 04.05.2017 at about 21:45 hours, when the
appellant was proceeding along with his work materials in
the 3rd respondent vehicle and the said vehicle reached
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Hitani Cross on Nippani Belagavi NH-4 Road, at that time
the vehicle of respondent No.1 i.e., TATA Trailer bearing
registration No.RJ-19/GF-3029, which was proceeding
from Belagavi towards the Pune side, abruptly crossed the
divider towards the vehicle in which the appellant was
proceeding at a rash and negligent manner and in a high
speed and dashed to the vehicle. Resultantly the
appellant sustained grievous injuries. It is averred that the
appellant was provided treatment at KLE Hosptial at
Belagavi as an inpatient from 04.05.2017 to 11.05.2017
and has incurred substantial amounts towards the
treatment. It is further averred that the appellant was
doing fabrication work, was earning Rs.30,000/- p.m. and
was a skilled worker. Due to the said accidental injuries,
the appellant sustained disability. Hence, he left the work.
He filed a claim petition before the Tribunal for the
accidental injuries suffered by him in the road traffic
accident, which occurred on 04.05.2017.
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3. The respondents entered appearance before the
Tribunal and respondent Nos.2 to 4 opposed the claim
petition by filing objections. They denied the age, income
and avocation of the injured. It is denied that, the
accident was caused due to the negligence of the driver of
the offending vehicle bearing registration No.RJ-19/GF-
3029. They have sought for dismissal of the claim petition.
4. The Tribunal recorded the evidence of the
parties. The injured examined himself as PW1 and also
examined the Doctor namely Dr.Rajesh S.Powar as PW2
and got marked the documents at Ex.P1 to P20. The
respondents have not adduced any evidence and with the
consent, got marked the Insurance Policy as Ex.R1. The
Tribunal considering the pleading and evidence on record,
awarded total compensation in a sum of Rs.12,58,339/-
along with interest at the rate of 6% p.a. from the date of
petition till the date of realisation. Being aggrieved, the
injured is in this appeal, seeking higher compensation.
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5. Learned counsel Smt.Geetha K.M. appearing for
the appellant submits that the Tribunal committed error in
assessing the disability and has awarded meagre
compensation under the heads of Pain & Suffering, Food,
Attendant & Conveyance Charges, Loss of Income During
the Laid Up Period, and for purchase of Artificial Limb.
Hence she seeks for reassessment of the compensation by
considering the oral evidence of PW2-Doctor and the
exhibits placed on records by allowing this appeal.
6. Per contra, Sri. Suresh S. Gundi learned counsel
appearing for the respondent Nos.2 to 4 supports the
impugned judgment and award of the Tribunal and
submits that the award passed by the Tribunal is just and
proper, does not call for any modification. Hence, he seeks
to dismiss the appeal.
7. We have heard the learned counsel appearing
for the parties and perused the grounds of appeal and
records of the Tribunal, the point that would arise for our
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consideration in this appeal is as to whether the impugned
judgment and award of the tribunal calls for any
interference?
8. The parties to the proceedings do not dispute
the accident which occurred on 04.05.2017 and also the
appellant sustaining grievous injuries and amputation of
his left upper limb. In support of the claim petition the
injured examined himself as PW1 and deposed with regard
to his income, avocation and the negligence of the driver
of the offending vehicle. The Tribunal has recorded a clear
finding that the driver of the vehicle bearing registration
No.RJ-19/GF-3029 was negligent and caused the accident
in question. The said finding is not challenged by the
insurer and it is based on the material available on record.
Hence, we hold that the insurer is liable to pay the entire
compensation.
9. Insofar as entitlement of the compensation is
concerned, the materials available on record indicate that
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the appellant-injured has provided treatment at KLE
Hospital at Belagavi as per Ex.P3 wound certificate and the
injured has sustained the following injuries:
"Crush injury left lower forearm wrist & hand
with muscles bones, exposed with multiple
fractures. CLW (L) shoulder (ant aspers) 2 cm X 7
cm, abrasion of bridge of eye, CLW on (L) calf 2 cm
X 7 cm. Abrasion on (L) shin, lacerated would on
(L) shin, CLW on right sole 4 cm X 7 cm. CT brain
plan fracture of (L) nasal shoulder, fracture of
bonage 3, 4, metacarpal fracture of bone middle
phalanx of 3 & 4th digits, head of distal phalanx of
5th distal, shaft of proximal phalanx of 3rd digital
and distal phalanx of 1st digital. There is fracture of
divestal ulna."
10. The aforesaid injuries are grievous in nature.
Exs.P7 & P8 are the discharge summary and case sheet of
the patient, which disclose that the injured was admitted
in the Hospital from 04.05.2017 to 11.05.2017 as an
inpatient. The evidence of PW2, the Doctor indicates that
the appellant has suffered a disability in his left upper
limb, 1/3rd of his fore arm is amputated and he has
suffered total permanent disability to the extent of 70% of
his left upper limb. However, the tribunal has committed
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an error in considering his disability at 50%, which in our
considered view, is contrary to the oral evidence of PW2,
the Doctor and other medical records available before the
Court. The learned counsel for respondents also does not
seriously dispute with regard to consideration of disability
hence, we are of the considered view that it would be just
and appropriate to assess the disability of the appellant to
the extent of 70% instead of 50% assessed by the
Tribunal for the purpose of determination of compensation.
11. The pleading and evidence on record indicate
that appellant was doing fabrication work and due to the
said accidental injuries, he became disabled to carry out
the same avocation, hence we are of the considered view
that the entire compensation amount is required to be
re-determined and accordingly we reassess the
compensation taking note of the oral and documentary
evidence on record.
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12. The Tribunal has assessed the income of the
injured at Rs.10,000/- p.m. admittedly the appellant has
not placed on record any cogent and legally acceptable
evidence with regard to the income. Hence, we assess the
income of the injured notionally at Rs.10,250/- p.m.
placing reliance on the Notional Income Chart prepared by
the Karnataka State Legal Services Authority. Further, the
Tribunal has applied the appropriate multiplier of 16 based
on the age of the injured at the time of accident. Thus, the
injured would be entitled to compensation under the head
"loss of future income due to disability" at
Rs.13,77,600/- (Rs.10,250/- x 12 x 16 x 70%).
13. Taking note of the treatment provided to the
injured-appellant/claimant, we reassess the compensation
awarded under the head "Pain & Suffering" at
Rs.1,00,000/- as against Rs.50,000/- by the Tribunal.
The Tribunal has awarded compensation of Rs.20,000/-
towards "food, attendant & conveyance charges", which is
on the lower side, hence, we reassess the same to
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Rs.25,000/-. Further, the compensation of Rs.1,00,000/-
awarded towards "future medical expenses is also
enhanced to Rs.1,25,000/- considering the nature of
injuries and disability suffered by the injured.
14. Further, the appellant has sustained the
aforesaid injuries and fractures and was admitted as an
inpatient in the Hospital for a substantial period, we are of
the considered view that the injured-appellant/claimant
requires at least five month period to recover, so it would
be just and proper to award Rs.51,250/- (Rs.10,250/- x 5
months) under the head "loss of income during the period
of treatment" instead of Rs.30,000/- awarded by the
Tribunal.
15. Insofar as the compensation of Rs.48,339/-
awarded by Tribunal under "Medical expenses" and
Rs.50.000/- awarded towards "loss of amenities of life"
are unaltered.
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16. Thus, the injured-appellant/claimant would be
entitled to modified compensation on the following heads:
Particulars Amount
(in Rs.)
Pain & Suffering Rs.1,00,000/-
Medical expenses Rs.48,339/-
Food, attendant and conveyance Rs.25,000/-
charges
Loss of income during the period of Rs.51,250/-
treatment
Loss of future income due to Rs.13,77,600/-
disability
Future medical Expenses Rs.1,25,000/-
Loss of amenities of life Rs.50,000/-
Total Rs.17,77,189/-
17. Thus, the injured-appellant/claimant would be
entitled to total compensation of Rs.17,77,189/- as
against Rs.12,58,339/- awarded by the Tribunal.
18. In the result, we proceed to pass the following:
ORDER
(i) The appeal stands allowed in part.
(ii) The impugned judgment and award of the
Tribunal is modified to an extent that the
injured-appellant/claimant would be
entitled to total compensation of
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Rs.17,77,189/- as against Rs.12,58,339/-
awarded by the Tribunal.
(iii) The enhanced compensation amount shall
carry interest at the rate of 6% p.a. from
the date of petition till the date of payment.
(iv) The respondent - Insurance Company to
pay the entire compensation amount along
with interest to the injured-
appellant/claimant within a period of six
weeks from the date of receipt of a certified
copy of this judgment.
(v) Apportionment, deposit and disbursement
shall be made as per the award of the
Tribunal.
(vi) Draw modified award accordingly.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
VNP, CT:VP
