Karnataka High Court
Chetan S/O Shivanand Ramdurg vs Sri.Shabbirahmad S Madalamatti on 6 August, 2024
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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NC: 2024:KHC-D:11091-DB
MFA No. 102844 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH 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.102844 OF 2018 (MV-I)
BETWEEN:
CHETAN S/O. SHIVANAND RAMDURG,
AGE 24 YEARS, OCC: BCA STUDENT,
R/O. OLD RTO OFFICE ROAD,
BAILHONGAL, DIST: BELAGAVI.
...APPELLANT
(BY SRI. ASHOK A. NAIK, ADVOCATE)
AND:
1. SRI. SHABBIRAHMAD S. MADALAMATTI,
AGE MAJOR, OCC: BUSINESS,
Digitally R/O. BASAVESHWAR ASHRAYA COLONY,
signed by
JAGADISH T R AT/POST: BAILHONGAL, DIST: BELAGAVI.
Location:
High Court of 2. THE DIVISIONAL MANAGER,
Karnataka
Dharwad ORIENTAL INSURANCE COMPANY LIMITED,
Bench THE MERCHANTS BANK BUILDING,
S. R. CIRCLE, BAILHONGAL,
SUMMONS TO BE SERVED ON
DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE COMPANY
LIMITED, CLUB ROAD, BELAGAVI-590020.
...RESPONDENTS
(BY SMT. ANUSHA SANGAMI, ADV. FOR
SRI. S. K. KAYAKAMATH, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH)
-2-
NC: 2024:KHC-D:11091-DB
MFA No. 102844 of 2018
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES AND
MODIFIED THE JUDGMENT AND AWARD DATED 06.10.2017 BY
ENHANCING THE AWARD AMOUNT IN MVC NO.1005/2016 PASSED BY
THE IX ADDL. DISTRICT AND SESSIONS JUDGE AND ADDL. M.A.C.T,
BELAGAVI, BY ALLOWING THIS APPEAL IN THE ENDS OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR HEARING ON INTERLOCUTORY
APPLICATION, 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)
Though this appeal is listed for orders, with the consent of
learned counsel for the parties, it is taken up for final disposal.
2. This appeal is filed by the claimant/injured not being
satisfied with the quantum of compensation awarded under
judgment and award dated 6.10.2017 passed in MVC
No.1005/2016 on the file of learned IX Addl. District and
Sessions Judge & Addl. MACT, Belagavi1, praying for
enhancement of compensation.
3. Brief facts leading to filing of this appeal are that, the
claimant/injured filed a claim petition before the Tribunal seeking
'Tribunal', for short
NC: 2024:KHC-D:11091-DB
compensation for the accidental injuries sustained on 24.12.2015
involving motorcycle bearing registration No.KA-24/R-4277 and
car bearing registration No.KA-22/N-2340. Due to the accident,
he has suffered permanent physical disability. The claimant was
aged about 22 years at the time of the accident and was
studying BCA course.
4. The respondents entered appearance and the
respondent No.2 has filed statement of objections denying the
claim petition averments. It was contended that the accident
occurred due to rash and negligent riding of rider of the
motorcycle in question. Thus, sought for dismissal of the claim
petition.
5. Before the Tribunal, the claimant examined himself
as PW1 and examined a doctor as PW2 and got marked
documents as Ex.P1 to P19. The respondents did not examine
any witness but got marked one document as Ex.R1 with
consent. The Tribunal on scrutiny of entire material available on
record allowed the claim petition in part awarding a total
compensation of Rs.9,94,815/- with interest at the rate of 6%
per annum from the date of petition till realization. Aggrieved by
the same, the claimant/injured is in appeal.
NC: 2024:KHC-D:11091-DB
6. Learned counsel Sri.Ashok A Naik appearing for the
appellant/injured vehemently contends that the Tribunal has
erred in assessing the notional income of the injured at
Rs.7,000/- per month, inasmuch as the claimant was a BCA
student and taking note of educational qualification, the income
of the injured ought to have been assessed on the higher side.
He further submits that PW2-doctor has assessed physical
disability of the claimant at 75% in respect of right lower limb,
however, the Tribunal assessed whole body disability at 18%,
which is on the lower side and contrary to the material on
record. He also submits that the quantum of compensation
awarded under other heads is also on the lower side, hence,
seeks enhancement of the same appropriately by allowing the
appeal.
7. Per contra, learned counsel Smt. Anusha Sangami
appearing for the respondent/Insurer supporting the impugned
judgment and award of the Tribunal submits that the Tribunal
taking note of the evidence available on record has rightly
justified in awarding just and proper compensation, which does
not warrant interference at the hands of this Court. Thus, prays
for dismissal of appeal.
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8. Having heard the learned counsel for the parties and
on perusal of the appeal papers including the original records of
the Tribunal, the only point that falls for consideration in this
appeal is as to, whether the claimant is entitled for enhanced
compensation.
9. There is no dispute with regard to occurrence of the
accident resulting in injuries to the claimant. It is also not in
dispute that the claimant was pursuing BCA course at the time of
the accident. It is the contention of the appellant that the
Tribunal committed an error in assessing the income of the
injured at Rs.7,000/- per month, without adverting to the fact
that he was studying BCA and was a brilliant student. Taking
note of the educational qualification of the appellant/injured, this
Court is of the considered view that it would be just and
appropriate to re-assess the notional income of the injured at
Rs.10,000/- per month.
10. In support of the claim, the claimant examined the
doctor as PW2, who deposed that the claimant has suffered
fracture of right shaft of femur of middle 3rd and fracture of right
upper limb. He further deposed that the claimant has got
permanent physical disability to an extent of 75% to right lower
NC: 2024:KHC-D:11091-DB
limb. The evidence of PW2 cannot be believed with regard to
disability, however, taking note of the injuries suffered by the
claimant and considering the treatment provided and also
duration of treatment taken by him, this Court is of the
considered opinion that it would be just and appropriate to re-
assess the disability of the claimant at 20% to the whole body
instead of 18% assessed by the Tribunal. There is no dispute
with regard to the age of the injured as 22 years and appropriate
multiplier of 18. Thus, the claimant is entitled to modified
compensation on the head of loss of future earnings due to
disability as under:
Rs.10,000 x 12 x 18 x 20/100 = Rs.4,32,000/-
11. The Tribunal awarded a sum of Rs.50,000/- towards
pain and suffering, which in our view is on the lower side and
same is enhanced to Rs.75,000/-. The Tribunal failed to award
any compensation under the head of loss of amenities, which the
claimant would be entitled to a sum of Rs.45,000/-. The
Tribunal has awarded a sum of Rs.5,31,655/- towards medical
expenses, a sum of Rs.10,000/- towards future medical
expenses, Rs.81,000/- towards food, transport, attendant
charges including loss of income during laid-up period and a sum
NC: 2024:KHC-D:11091-DB
of Rs.50,000/- towards loss of marriage prospects, which in our
view are just and reasonable and do not call for interference at
the hands of this Court. Thus, the claimant would be entitled to
modified compensation on the following heads:
Pain and suffering Rs. 75,000/-
Loss of amenities Rs. 45,000/-
Medical expenses Rs.5,31,655/-
Loss of future earning Rs.4,32,000/-
Loss of marriage prospects Rs. 50,000/-
Food, transport & attendant charges
Including loss of income during laid up period Rs. 81,000/-
Future medical expenses Rs. 10,000/-
------------------
Total Rs.12,24,655/-
------------------
12. In all, the claimant is entitled to total compensation
of Rs.12,24,655/- as against Rs.9,94,815/- awarded by the
Tribunal.
13. In the result, we proceed to pass the following:
ORDER
a) The appeal stands partly allowed.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant is entitled to total compensation of
Rs.12,24,655/- as against Rs.9,94,815/-
awarded by the Tribunal.
c) The enhanced compensation shall carry
interest at the rate of 6% per annum from
the date of petition till realization.
NC: 2024:KHC-D:11091-DB
d) The respondent/insurer shall deposit the
enhanced compensation amount with accrued
interest before the Tribunal within six weeks
from the date of receipt of certified copy of
this judgment.
e) The apportionment, deposit and
disbursement shall be made as per award of
the Tribunal.
f) It is made clear that in terms of order dated
8.2.2019, the claimant shall not be entitled to
interest on the enhanced compensation
amount for the delayed period of 207 days in
filing the appeal.
g) Draw modified award accordingly.
h) Registry to transmit the TCR to the Tribunal
forthwith.
i) No order as to costs.
Sd/-
(KRISHNA S.DIXIT)
JUDGE
Sd/-
(VIJAYKUMAR A.PATIL)
JUDGE
JTR/ct-an
