Karnataka High Court
Arun Kumar vs Mohammed Irshad on 5 February, 2024
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NC: 2024:KHC:6796
MFA No. 4158 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 4158 OF 2014 (MV-I)
BETWEEN:
ARUN KUMAR
S/O PRABHUSWAMY
AGED ABOUT 37 YEARS,
PROP OF KALAYANI HARDWARES & TILES,
CHAMARAJNAGAR,
R/AT NO.65, 7TH CROSS,
"C" BLOCK, J.P. NAGAR,
MYSORE-570 008.
...APPELLANT
(BY SRI. SRINIVAS C H.,ADVOCATE)
AND:
1. MOHAMMED IRSHAD
S/O AMEER JAN,
AGED ABOUT 29 YEARS,
R/AT NO. ADARSHNAGAR,
Digitally LAYALA POST, BELTHANGADY TALUK,
signed by
BHARATHI S DAKSHINA KANNADA.
Location: DRIVER OF THE EICHER MINI LORRY
HIGH
COURT OF BEARING REG NO. KA-21/A-1425
KARNATAKA
2. FIROZ AHMED
S/O. AMEER JAN,
AGED ABOUT 29 YEARS,
R/AT NO.223, ADARSHNAGAR,
LAYALA POST, BELTHANGADY TALUK,
DAKSHINA KANNADA-574214.
DRIVER OF THE EICHER MINI LORRY
BEARING REG NO. KA-21/A-1425
3. THE BRANCH MANAGER
ROYAL SUNDARAM ALLIANZ INSURANCE CO. LTD.,
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NC: 2024:KHC:6796
MFA No. 4158 of 2014
"MILLENNIUM CITY" I.T. PARK,
UNITS NO. T-2-2A, TOWER-II,
PLOT NO. DN-62, SECTOR-V,
SALT LAKE,
KOLKOTA-700 091.
POLICY NO. VGC-0090915000100
VALID FROM 4.06.2009 TO 03.06.2010
4. MANJUNATH N
S/O NAGARAJAN,
AGED ABOUT 37 YEARS,
R/AT NO. 79, 2ND STAGE,
J.P. NAGAR,
MYSORE-570 008.
DRIVER OF FORD IKON CAR BEARING
REG. NO. KA-12/Z-2468
5. V. SURESH
S/O VENKATACHALAPATHI
R/AT NO.9-35, KOLLEGALA,
CHAMARAJANAGAR DISTRICT -571440
OWNER OF FORD IKON CAR BEARING
REG NO. KA-12/Z-2468
6. M/S BAJAJ ALLIANZ INSURANCE CO., LTD.,
NO.363, SHRI HARI COMPLEX,
SHEETHA VILAS ROAD,
MYSORE-570008.
POLICE NO. OG-10-1705-1801-00001859
VALIK FROM 8-7-2009
TO 7.7.2010
...RESPONDENTS
(BY SRI RAVI S. SAMPRETH, ADVOCATE FOR R3;
VIDE ORDER DATED 20.02.2015, NOTICE TO R1, R2, R4
AND R5 DISPENSED WITH;
SRI. P B RAJU, ADVOCATE FOR R6)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 21.8.2013 PASSED IN MVC
NO.186/2010 ON THE FILE OF THE PRL.DISTRICT JUDGE & MMACT,
CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR DISMISSAL, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 4158 of 2014
JUDGMENT
The above appeal is filed by the claimant challenging
the judgment and award dated 21.08.2013 passed in
MVC.No.187/2010 on the file of the Principal District Judge
and MMACT, Chikmagaluru for enhancement of
compensation.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. It is the case of the claimant that on 29.09.2009
when he was traveling in a car, a mini lorry came from the
opposite direction and hit the car causing the accident in
question wherein he sustained injuries. Claiming
compensation for the injuries sustained in the said accident,
he filed a claim petition arraying the driver, owner and
insurer of Mini lorry as Respondent Nos.1, 2 and 3 and the
driver, owner and insurer of the car as Respondent Nos.4 to
6. The claim proceedings was contested by the Respondents.
4. The Tribunal by its judgment and award dated
21.08.2013 awarded a total compensation of `2,09,750/-
together with interest @ 6% per annum. Being aggrieved,
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the claimant has filed the above appeal for enhancement of
compensation.
5. The finding of the Tribunal regarding negligence
and liability is not challenge. Hence, the only question that is
required to be considered in the present appeal is regarding
enhancement of compensation.
6. The claimant is aged 36 years as on the date of
the accident. Hence, multiplier to be assessed at 16% as
has been done by the Tribunal.
7. The claimant contended that he was carrying on
business under the name and style M/s Kalyani Hardware
and Tiles and earning more than `30,000/- per month. To
prove the same, he has produced Agreement (Ex.P19) and
statement of commission slip (Ex.P20). The Tribunal, while
assessing the income, has recorded a finding that the
claimant has not produced any income tax returns to show
the actual income and the documents produced by the
claimant also is not proved by examining any witness.
Hence, the Tribunal has assessed the income of the climate
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at `5,000/- per month by assessing the same as notional
income.
8. Learned counsel for the appellant vehemently
contended that and the income assessed is on the lower
side. It is forthcoming from the deposition of PW.2 that he
was carrying on business as a proprietor of Kalyani Hardware
Tiles. However, the name of Kalyani Hardware Tiles is not
forthcoming from Ex.P19. It is disclosed that the same was
for a period of one year from 14.12.2002 and the claimant
was carrying on business as Lakshmi Traders. The dealership
commission slip (Ex.P20) is attested by one Sili Tech. There
is no evidence to demonstrate who is Sili Tech who has
issued Ex.P20. Hence, the finding of income recorded by the
Tribunal is just and proper.
9. A perusal of the disability certificate (Ex.P15) and
discharge prescription (Ex.P16) as well as the testimony of
the Doctor CW.2 discloses that the claimant had sustained
fracture of the posterior wall, fracture right acetabulum and
fracture of greater tuberosity of left humerus and he was
treated as an inpateient till 05.10.2009. The Doctor has
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assessed the disability as 15%. However, the Tribunal has
assed the functional disability as 5% which is just and
proper.
10. Hence, the compensation is re-assessed as
follows:
10.1. The Tribunal has awarded a sum of `55,000/-
towards pain and suffering, `80,000/- towards medical
expenses, `48,000/- towards loss of earning during laid up
period and `15,000/- towards future medical expenses
which is just and proper.
10.2. The Tribunal has awarded a sum of `1,750/-
towards attendant charges, nutrition and the same is re-
assessed as `15,000/-.
10.3. The Tribunal has awarded a sum of `10,000/-
towards future discomforts and inconvenience and the same
is re-assessed in a sum of `20,000/-. Hence, compensation
is re-assessed as follows:
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Sl.No Compensation Head Amount Amount
Awarded by awarded by
the Tribunal this Court (`)
(`)
1 Pain and suffering 55000.00 55000.00
2 Medical expenses 80000.00 80000.00
3 Attendant charges, 1750.00 15000.00
special diet, conveyance
4 Loss of earning capacity 48000.00 48000.00
5 Loss of earning during 15000.00 15000.00
laid up period
6 Future medical expenses 15000.00 15000.00
7 Future discomforts 10000.00 20000.00
Total 224750.00 248000.00
11. Accordingly, the Claimant is entitled to enhanced
compensation of `23,250/- (`2,48,000/- - `2,24,750/-)
together with interest at 6% p.a.
12. In view of the aforementioned, I pass the
following: ORDER
i) The appeal is allowed in part;
ii) The judgment and award dated 21.08.2013
passed in MVC No.187/2010 by the Principal
District Judge and MMACT, Chikmagalur is hereby
modified to the extent stated herein. In all other
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respects, the judgment and award of the Tribunal
remains unaltered;
i) The appellant/claimant is entitled enhanced
compensation of `23,250/- together with interest
at 6% from the date of petition till its realization
in addition to the compensation awarded by the
Tribunal;
ii) The enhanced compensation together with
accrued interest is liable to be deposited by the
Respondent Nos.1 and 3 jointly and severally
within eight weeks from the date of receipt of a
copy of this order.
iii) Upon such deposit, the entire enhanced
compensation together with interest accrued
thereupon is to be disbursed to the claimant.
iv) The Registry to draw the modified award
accordingly.
No costs.
Sd/-
JUDGE
PNV,BS
