Karnataka High Court
Balappa S/O Sanjeevappa Madar vs Pasha S/O Shaik Peer Ahamed Sab on 14 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 100055 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH 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. 100055 OF 2019 (MV-I)
BETWEEN:
BALAPPA S/O SANJEEVAPPA MADAR
AGE:31 YEARS, OCC: COOLIE,
R/O: MALAGITTI, TQ: KUSHTAGI, DIST:KOPPAL.
...APPELLANT
(BY SRI. S C HIREMATH, ADVOCATE)
AND:
1. PASHA S/O SHAIK PEER AHAMED SAB
AGE:40 YEARS, OCC: DRIVER NO 328,
BUS BEARING REGD NO KA-36/3630,
R/O:MUDUGAL, TAL:LINGASAGUR, DIST:RAICHRU.
2. K.MALLESH,
MAJOR, OWNER OF BUS BEARING NO KA-36/3630,
R/O:RAICHUR, C/OH.NO.1-4-1388/359,
I.D.S.M.T. LAYOUT, RAICHUR, DIST:RAICHUR.
Digitally
signed by K M
3. THE MOTOR INSURANCE COMPANY LIMITED
ISSUING OFFICE CODE NO 431301, CBO 7
SOMASHEKAR
KM
SOMASHEKAR Date:
2024.02.20
10:39:33
+0530
HYDERABAD, 107 JAIN ESTATE,
NANKING HOTEL LANE,
PARKLANE, SECUNDERABAD,
ANADRA PRADESH 500003.
4. THE DIVISIONAL CONTROLLER/MANAGER
NEKRTC, DEPOT RAICHUR,
DIST:RAICHUR.
...RESPONDENTS
(BY SRI. RAJSHEKHAR S. ARANI, ADVOCATE FOR R3,
NOTICE TO R1, R2 & R4 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 30.08.2014
PASSED IN MVC NO.480/2007 ON THE FILE OF SENIOR CIVIL JUDGE
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MFA No. 100055 of 2019
AND MACT, YELBURGA, PARTLY ALLOWING CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. The claimant-injured is before this Court dissatisfied
with the quantum of compensation awarded under judgment
and award dated 30.08.2014 in M.V.C. No.480/2007 on the file
of learned Senior Civil Judge and Member, MACT, Yelburga,
sitting at Kushtagi (for short, 'Tribunal'), praying for
enhancement of compensation.
3. Heard learned counsel Sri.S.C.Hiremath, for the
appellant and Sri.Rajashekhar S Arani, learned counsel for
respondent-Insurance Company and perused the appeal papers
along with original records.
4. The appellant/claimant filed a claim petition under
Section 166 of the M.V. Act claiming compensation for the
injuries sustained by him in a road traffic accident that occurred
on 23.03.2007 involving NEKRTC bus bearing registration
No.KA-36/3630 & Lorry bearing registration No.KA-32/A-5004.
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It is stated that the appellant/claimant was aged 20 years as on
the date of the accident and was doing coolie work, earning
more than Rs.6,500/- per month.
5. On issuance of notice, respondent-Insurance
Company appeared through its counsel and filed statement of
objections denying the entire averments made in the claim
petition. It was further contended that due to negligence on the
part of driver of the offending lorry, accident took place.
Hence, sought for dismissal of the claim petition.
6. The claimant in support of his case examined
himself as PW1 and examined one Doctor as PW4 and got
marked documents as Exs.P1 to P11. Respondent No.3-
Insurance Company examined two witnesses as RW1 and RW2
apart from marking the documents as Ex.R1 to R8. The
Tribunal on appreciation of material on record awarded total
compensation of Rs.1,82,400/- with interest at 6% per annum
from the date of petition till realization on the following heads:
Pain & suffering Rs.50,000/-
Loss of income during laid-up period Rs.16,000/-
Loss of future earnings Rs.86,400/-
Loss of happiness & future amenities Rs.5,000/-
Medical & incidental expenses Rs.25,000/-
-----------------
Total Rs.1,82,400/-
-----------------
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7. While awarding the above compensation, the
Tribunal assessed notional income of the claimant/injured at
Rs.4,000/- per month, applied multiplier of 18 and assessed
whole body disability of the injured at 15% and functional
disability at 10%. Not being satisfied with the quantum of
compensation, the claimant is before this Court praying for
enhancement of compensation.
8. Sri.S.C.Hiremath, learned counsel for the
appellant/injured would submit that notional income of the
claimant assessed by the Tribunal at Rs.4,000/- per month is
on the lower side, inasmuch as he was doing coolie work and
earning more than Rs.6,500/- per month. He further submits
that the Tribunal committed an error in assessing whole body
disability of the injured at 15% and functional disability at 10%,
which is contrary to the evidence of doctor-PW4, who deposed
that claimant has suffered physical disability at 40% to right
lower limb and 15% to 20% to left lower limb. Thus, he
submits that the Tribunal ought to have assessed whole body
disability on the higher side. It is further submitted that the
compensation awarded on other heads are also on the lower
side. He further submits that no compensation has been
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awarded on the head of food, nourishment, conveyance and
attendant charges. Thus, he prays for enhancement of
compensation by allowing the appeal.
9. Per contra, Sri. Rajashekhar S Arani, learned
counsel for respondent No.3-Insurance Company contends that
the quantum of compensation awarded by the Tribunal is just
and proper, which needs no interference. He further submits
that the Tribunal rightly assessed whole body disability at 15%
and functional disability of the injured at 10% taking note of
evidence of PW4-doctor, which also requires no interference.
Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original records,
the following points would arise for consideration in this appeal:
a) Whether the Tribunal is justified in assessing
whole body disability at 15% and functional
disability of the injured at 10%?
b) Whether the claimant would be entitled for
enhanced compensation?
11. Answer to the above points would be in the
negative and affirmative respectively for the following reasons.
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12. The occurrence of the accident that took place on
02.08.2012 involving NEKRTC bus bearing registration No.KA-
36/3630 & Lorry bearing registration No.KA-32/A-5004,
resulting in injuries to the claimant is not in dispute in this
appeal. The claimant is before this Court praying for
enhancement of compensation. The Tribunal assessed notional
income of the claimant at Rs.4,000/- per month. It is stated
that the claimant was doing coolie work and earning more than
Rs.6,500/- per month. However, no material is placed on
record by the claimant to establish his avocation and earning.
In the absence of any material on record to establish the
avocation and earning, the Tribunal rightly assessed notional
income of the appellant/claimant at Rs.4,000/- per month,
taking note of income chart prepared by the KSLSA for the
accident of the year 2007, which in our view is just and proper
and same is undisturbed.
13. Ex.P22 is the Wound Certificate of the claimant,
wherein it is stated that the claimant/injured sustained fracture
of shaft left femur with segmental fracture both bones of left
leg and medial mellelous fracture of right ankle. In support of
his case, the claimant examined PW4-Doctor, who has deposed
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in his evidence that the injured/claimant suffered 40% to 45%
physical disability to the left lower limb and 15% to 20% to the
right lower limb. The Tribunal taking note of the same,
assessed functional disability of the claimant at 10% and whole
body disability at 15%, which in our view is on the lower side.
It is settled law that 1/3rd of disability to a particular limb is to
be taken as disability to the whole body. If disability of the
injured to both lower limbs is taken at 60% as stated by PW4-
doctor, 1/3rd of which would be 20%. Since the
claimant/injured is a coolie, the injuries suffered by him would
definitely hinder his day-to-day work. Thus, we are of the
opinion that it is appropriate to re-assess the disability of the
claimant at 20% to the whole body as against 10% assessed by
the Tribunal.
14. There is no dispute with regard to the age of the
claimant i.e. 20 years. The Tribunal adopted multiplier of 18 to
the age of the claimant. Thus, the claimant would be entitled
to compensation on the head of loss of future earnings at
Rs.1,72,800/- (Rs.4,000 X 12 (months) x 18(multiplier) x
20/100 (disability).
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15. Further, the Tribunal awarded a sum of
Rs.16,000/- towards loss of earning during laid up period,
which in our view is proper and correct, needs no interference.
The Tribunal awarded a sum of Rs.50,000/- on the head of pain
and suffering, which is on the lower side. Considering the
nature of injuries and also fractures sustained by the claimant,
the amount awarded on the said head is enhanced to
Rs.75,000/-. The Tribunal awarded a sum of Rs.5,000/-
towards loss of happiness and future amenities, which is very
meager. Since the claimant is a coolie and suffered fractures to
his both legs, we are of the view that compensation awarded
on the head of loss of happiness and future amenities is
enhanced to Rs.75,000/-. No compensation has been awarded
on the head of food, nourishment, conveyance and attendant
charges. Since the claimant was inpatient for a period of 36
days, we are of the view that the claimant would be entitled to
a sum of Rs.25,000/- on the said head.
16. The Tribunal awarded a sum of Rs.25,000/-
towards medical expenses as per medical bills produced by the
claimant, which in our view is just and proper and same is
undisturbed.
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17. Thus, the claimant would be entitled to modified
compensation as under:
Sl.No. Particulars Amount
1. Loss of earning capacity Rs.1,72,800/-
2. Loss of income during laid-up Rs. 16,000/-
period for three months
3. Pain and suffering Rs. 75,000/-
4. Loss of happiness & future Rs. 75,000/-
amenities
5. Medical expenses Rs. 25,000/-
6. Food, Nourishment, attendant Rs. 25,000/-
charges, conveyance etc.
Total Rs.3,88,800/-
18. Thus, the claimant would be entitled to total
compensation of Rs.3,88,800/- as against Rs.1,82,400/-
awarded by the Tribunal.
19. Hence, we pass the following order:
ORDER
a) The appeal is allowed in part.
b) The impugned judgment & award passed
by the Tribunal is modified to an extent
that the claimant would be entitled to total
compensation of Rs.3,88,800/- as
against Rs.1,82,400/- awarded by
Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of petition till realization.
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d) Respondent-Insurance Company shall
deposit the enhanced compensation
amount along with accrued interest before
the Tribunal within a period of six weeks
from the date of receipt of certified copy of
this judgment.
e) Apportionment, deposit and disbursement
shall be made as per award of the
Tribunal.
f) It is made clear that the claimant would
not be entitled interest on the enhanced
compensation for the delayed period of
1496 days in filing the appeal.
g) Registry to transmit the records to the
Tribunal forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
