Karnataka High Court
The Manager vs Sana S/O Yunus Mulla on 13 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 100603 of 2023
C/W MFA No. 100321 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 100603 OF 2023 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100321 OF 2023 (MV-I)
IN MFA NO. 100603 OF 2023
BETWEEN:
SANA D/O. YUNUS MULLA,
AGE: 22 YEARS,
OCC: TAILORING, NOW NIL,
R/O. TANAJI CHOWK,
SANKESHWAR, TAL: HUKKERI,
DIST: BELAGAVI-PIN-591313.
...APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
Digitally
signed by
JAGADISH
JAGADISH T R
TR Date:
2024.02.28
1. NAIM S/O. NIZAM KHAN,
16:11:35
+0530 AGE: 44 YEARS, OCC: BUSINESS,
R/O. OFFICE ADDRESS 131/1,
PLOT NO.2/A, HARIDHARA SHOPPING COMPLEX ,
KALHER-421302, TAL: BHIVANDI DIST: THANE,
R/O. PLOT NO-9/K/8, ROAD NO-8,
BAIGANWADI,GOVANDI,
SHIVAJI NAGAR, MUMBAI-400043.
MAHARASHTRA STATE.
2. RELIANCE GENERAL INSURANCE CO. LTD,
ISSUING OFFICE AT 3RD FLOOR,
APEEJAY EXPRESS, PLOT NO-87,
SECTOR NO-17, VASHI,
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MFA No. 100603 of 2023
C/W MFA No. 100321 of 2023
NAVI MUBAI-400703, MAJHARASHTRA,
REPRESENTED BY ITS DIVISIONAL MANAGER,
NEAR KOLHAPUR CIRCLE,
NEHRU NAGAR, BELAGAVI, PIN-590001.
3. SHRI MOHAMMED IQBAL S/O. BABALAL BARGIR,
AGE: 36 YEARS, OCC: BUSINESS,
R/O. H.NO.3312/1, BASHIBAN DARGA COMPOUND,
BHENDI BAZAR,BELAGAVI.
4. THE UNITED INDIA INSURANCE COMPANY LTD,
POLICY ISSUED AT 24, 1ST FLOOR,
ASHOK NAGAR, NIPANI.
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 2ND FLOOR,
ABOVE BANK OF BARODA,
MARUTI GALLI, BELAGAVI PIN-590001.
TQ AND DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. G. N. RAICHUR AND
SRI. A. S. DESAI, ADVOCATES FOR RESPONDENT NO.2,
SRI. M. K. SOUDAGAR, ADV. FOR RESPONDENT NO.4,
NOTICE TO RESPONDENT NO.1 AND 3 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION
BY MODIFYING THE JUDGMENT AND AWARD PASSED BY COURT OF
THE IX ADDL. DISTRICT JUDGE AND ADDL. MACT, BELAGAVI, IN
MVC NO.149/2020 DATED 23-11-2022, IN THE INTEREST OF
JUSTICE AND EQUITY.
MFA NO. 100321 OF 2023
BETWEEN
THE MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD,
ISSUING OFFICE AT 3RD FLOOR,
APEEJAY EXPRESS, PLOT NO.87,
SECTOR NO.17, VASHI NAVI MUMBAI-400703,
MAHARASHTRA,
REPRESENTED BY ITS DIVISIONAL MANAGER,
NEAR KOLHAPUR CIRLCE,
NEHRU NAGAR, BELAGAVI-590009.
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MFA No. 100603 of 2023
C/W MFA No. 100321 of 2023
REPRESENTED BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI. G. N. RAICHUR AND
SRI. A. S. DESAI, ADVOCATES)
AND
1. SANA S/O. YUNUS MULLA,
AGE: 22 YEARS, OCC: TAILORING, NOW NIL,
R/O. TANAJI CHOWK, TAL: HUKKERI-140301,
DIST: BELAGAVI.
2. NAIM S/O. NIZAM KAHN,
AGE: 43 YEARS, OCC: BUSINESS,
OFFICE ADDRESS 131/1,
PLOT NO.2/A, HARIDHARA SHOPPING COMPLEX,
KALHER-421302, TAL: BHIVANDI,
DIST: THANE, R/O. PLOT NO.9/K/8,
ROAD NO.8, BAIGANWADI,
GOVANDI SHIVAJI NAGAR,
MUMBAI-400043, MAHARASTRA STATE.
3. SHRI MOHAMMED IQBAL,
S/O. BABALAL BARGIR,
AGE: 35 YEARS, OCC: BUSINESS,
R/O. H.NO.3312/1, BASHIBAN DARGA COMPOUND,
BHENDI BAZAR, BELAGAVI-590010.
4. THE UNITED INSURANCE COMPANY LTD,
POLICY ISSUED AT 24, 1ST FLOOR,
ASHOK NAGAR, NIPPANI,
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 2ND FLOOR,
ABOVE BANK OF BARODA,
MARUTI GALLI, BELAGAVI-590009.
...RESPONDENTS
(BY SRI. HANAMANT R. LATUR, ADV. FOR RESPONDENT NO.1,
SMT. GEETHA K. M. @ PAWAR, ADV. FOR RESPONDENT NO.3,
SRI. M. K. SOUDAGAR, ADV. FOR RESPONDENT NO.4
NOTICE TO RESPONDENT NO.2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING MODIFY THE JUDGMENT AND
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MFA No. 100603 of 2023
C/W MFA No. 100321 of 2023
AWARD DATED 23.11.2022 PASSED BY THE COURT OF THE IX
ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, BELAGAVI
AT BELAGAVI IN MVC NO.149/2020 BY REDUCING THE
COMPENSATION AWARDED BY ACCEPTING THE GROUNDS MADE
OUT IN THE GROUNDS OF APPEAL BY ALLOWING THIS APPEAL WITH
COST IN THE ENDS OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
JUDGMENT
These cross appeals by the claimants and the insurer.
MFA No.100603/2023 by claimants for enhancement of
compensation. MFA No.100321/2023 by insurer disputing the
percentage of disability and the rate of interest. Both these
appeals arises out of judgment and award in MVC No.149/2020
dated 23.11.2022 on the file of IX Additional District Judge and
Additional MACT, Belagavi.
2. The claimant/injured filed petition under Section
166 of Motor Vehicles Act, 1988 claiming compensation for
injuries sustained during accident on 24.5.2019 involving LMV
Maxi cab bearing No.KA-22/6057 and Canter bearing No.MH-
04/GR-3101. It is pleaded that the claimant is aged 19 years
and was earning Rs.20,000/- per month by doing tailoring
work. It is further stated that the appellant/petitioner is
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unmarried and not able to perform her tailoring work due to the
disability caused as a result of accident.
3. On service of notice respondent No.1 remained
absent and placed ex-parte. Respondent No.2 appeared
through counsel and filed objections denying date, time, place,
manner of accident and income of the claimants. Further
contented that driver of Canter was not holding valid driving
license. Due to violation of policy conditions insurer is not liable
to pay the compensation.
4. Respondent No.3 owner of LMV Maxi cab bearing
No.KA-22/6057, filed objection denying the petition averments.
Contended that accident has taken place due to rash and
negligent driving of Canter. The 4th respondent filed objection
denying the averments in the petition and contended that
driver of cab was not holding valid driving license.
5. The Tribunal has recorded common evidence for
four claimant/petitions arising out of same accident. The
petitioner examined himself as PW2. Examined Doctor as PW5
and got marked Ex.P1 to P32. 2nd and 4th respondents got
marked Ex.R1 and R2. The respondents have not led any oral
evidence.
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6. The Tribunal on consideration of the evidence on
record determined the compensation by considering the
notional income at Rs.13,250/- per month, age of the
appellant/petitioner as 19 years, assessed disability at 75% and
awarded 40% assessed income towards future prospects.
Tribunal awarded total compensation of Rs.32,25,608/- as
under:
Sl.
Heads of Compensation Amount
No.
1. Pain and Suffering 40,000.00
2. Loss of income due to disability 30,05,100.00
3. Loss of income during laid up 26,500.00
period
4. Loss of amenities 50,000.00
5. Towards attendant charges, food 5,600.00
and nourishment
6. Conveyance charges 5,000.00
7. Medical expenses 93,408.00
Total 32,25,608.00
7. Heard Shri. Hanamant R Latur, learned counsel
appearing for the appellant and Shri.G.N. Raichur and Shri.
A.S. Desai, learned counsels appearing for the respondent
No.2.
8. Learned counsel for the claimant submits that
claimant was working as a tailor and earning Rs.20,000/- per
month. The income considered at Rs.13,250/- per month is on
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the lower side. Learned counsel further submits that as per the
evidence of Doctor, the claimant has suffered shoulder
disarticulation and the disability to right upper limb is to the
extent of 90%. The claimant was doing tailoring work, due to
shoulder disarticulation she cannot perform the work of tailor.
Hence, the functional disability arrived at 70% by the Tribunal
is incorrect and prays to consider the disability at 90%. It is
further submitted that the claimant is aged 19 years. Due to
accidental injuries suffered, she is deprived of better marriage
prospects. The Tribunal has not awarded any compensation
towards loss of marriage prospects. Learned counsel further
submits that considering the nature of injuries and the claimant
was inpatient for 5 days, compensation awarded under various
heads is on the lower side.
9. Learned counsel for the insurer submits that in the
absence of any evidence to prove the income of the claimant at
Rs.20,000/- from tailoring work, the Tribunal is justified in
assessing the notional income. It is further submitted that no
evidence is placed to prove that the claimant was doing
tailoring work. The percentage of disability has been rightly
considered at 75%. Learned counsel further submits that the
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Tribunal has awarded interest at 9% and prays to re-fix the
same at 6% per annum.
10. Having heard learned counsel for the parties and on
perusal of the appeal papers and records. The points that arise
for consideration are:
i. Whether the Tribunal justified in
considering the functional disability at
75%?
ii. Whether the compensation awarded by
the Tribunal needs reconsideration?
11. Our answer to the 1st point is in the 'negative' and
2nd point is in the 'affirmative' for the following reasons.
12. The injury sustained by the claimant due to road
traffic accident that has taken place on 24.05.2019 involving
LMV Maxi cab bearing No.KA-22/6057 and Canter bearing
No.MH-04/GR-3101 is not in dispute in this appeal.
13. The claimant has contended that she was working
as a tailor and earning Rs.20,000/- per month. In support of
proof of income no evidence has been produced. It is settled
possession of law that in the absence of cogent evidence to
prove the income of the claimant, the income has to be
assessed notionally. The Tribunal by considering the chart
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prepared by the KSLA considering the wages and expenses, has
rightly assessed notional income for the year 2019 at
Rs.13,250/- per month, which is not disturbed. The contention
of the claimant that she was working as a tailor is not in
dispute. PW-5 Doctor on the basis Ex.P20 Disability Certificate
has deposed that she has sustained right upper limb auto
amputation with crush injury of right upper limb. It is further
stated that due to absence of right upper limb suggestive of
shoulder disarticulation, the claimant would not be able to lift
weight or do laborious work by using right upper limb.
Considering the clinical and radiological manuals, doctor
assessed the permanent physical disability at 90% to right
upper limb. As per schedule II to Employees Compensation Act,
the amputation to the shoulder is considered as 90% loss of
earning capacity.
14. Considering the evidence of doctor & Ex.P20
Disability certificate and schedule I to Employees Compensation
Act, we are of the view that the disability is to be considered at
90% against the disability at 75% as assessed by the Tribunal.
15. As it is not in dispute that the claimant was doing
tailoring work, the amputation of right upper limb has resulted
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in the claimant to not carrying on her tailoring work. Due to the
said amputation, the Tribunal has rightly considered loss of
future income and added 40% of the assessed income towards
future prospects. The age of the victim is 19 years and
applicable multiplier 18 is not in dispute. Thus, the claimant
would be entitled to compensation on the head of loss of future
income due to disability as under:
Rs.13,250 + 40/100 x 12 x 18 x 90/100 = Rs.36,06,120/-
16. Considering the nature of injuries, amputation to
right upper limb, period of inpatient, the loss of amenities and
marriage prospects, the compensation towards pain and
suffering, loss of amenities, attendant, food and nourishment
and conveyance is on lower side, we are of the view that the
award of Rs.40,000/- under the head pain and sufferings is to
be enhanced to Rs.75,000/-, Rs.50,000/- towards loss
amenities as to be enhanced to Rs.1,00,000/-, attendant, food
and nourishment charges from Rs.5,600 to 10,600/- and
Rs.5000/- conveyance charges to Rs.10,000/-. Further the
claimant was aged 19 years and she has suffered amputation of
right upper limb and was unmarried as on the date of accident.
Due to injuries suffered, she has lost better prospects of
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marriage. Hence, we deem it appropriate to award a sum of
Rs.3,00,000/- towards marriage prospects. The total
compensation is recomputed as under:
Sl.
Heads of Compensation Amount in Rs.
No.
1. Pain and Suffering 75,000.00
2. Loss of income due to disability 36,06,120.00
3. Loss of income during laid up period 26,500.00
4. Loss of amenities 1,00,000.00
5. Towards attendant charges, food 10,600.00
and nourishment
6. Conveyance charges 10,000.00
7. Medical expenses 93,408.00
8. Marriage prospects 3,00,000.00
Total 42,21,628.00
Amount awarded by Tribunal 32,25,608.00
Enhancement 9,96,020.00
17. Thus claimants would be entitled to total
compensation of Rs.42,21,628/- as against Rs.32,25,608/-
awarded by the Tribunal.
18. The contention of the insurer that the Tribunal
committed an error in awarding 9% of the interest is incorrect.
The Tribunal has awarded interest at the rate of 6% per annum
with a direction to deposit entire compensation within 2
months. Failing to deposit the compensation, within 2 months,
the Tribunal has awarded 9% interest. As the rate of interest
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awarded by the Tribunal is 6% per annum, we find no error to
interfere.
19. In the result, we proceed to pass the following:
ORDER
a) The above appeal is allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total compensation
of Rs.42,21,628/- as against
Rs.32,25,608/- awarded by the Tribunal.
c) The enhanced compensation amount of
Rs.9,96,020/- will bear interest at the
rate of 6% per annum from the date of
claim petition till date of realization.
d) The respondent-Insurance Company 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.
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e) Deposit and disbursement of the enhanced
compensation amount shall be made as per
the award of the Tribunal.
f) Registry to transmit the records to the
Tribunal forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RKM
