Karnataka High Court
Anand vs Jalil Miyan And Anr on 15 February, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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MFA No.201372 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.201372 OF 2018 (MVC)
BETWEEN:
ANAND
S/O BASAWARAJ BIRADAR
AGE: 25 YEARS
OCC: MEDICAL STUDENT &
TUITION CLASSES (NOW NIL)
R/O H.NO.11/1220
M.S.K.MILL ROAD
SHANTI NAGAR, KALABURAGI - 585 102.
...APPELLANT
(BY SMT.ANURADHA M. DESAI & SRI MAHANTESH H. DESAI,
Digitally signed
by SWETA ADVOCATES)
KULKARNI
Location: HIGH
COURT OF AND:
KARNATAKA
1. JAIL MIYAN
S/O MOULAN SAB
AGE: MAJOR, OCC: OWNER OF VEHICLE
R/O IMAMABAD, TQ. & DIST: BIDAR.
2. THE DIVISIONAL MANAGER
SHRIRAM GENERAL
INSURANCE COMPANY LTD
NO.302, 3RD FLOOR
S & S CORNER BUILDING
OPP: BOURING & CURZON HOSPITAL
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MFA No.201372 of 2018
SHIVAJI NAGAR, BANGALORE - 560 001.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE FOR R-2;
V/O DATED 08.08.2016 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR RECORDS IN
M.V.C.NO.756/2015 ON THE FILE OF PRL. SENIOR CIVIL
JUDGE AND M.A.C.T., AT KALABURAGI DATED 20.09.2017 AND
ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND
AWARD DATED 20.09.2017 PASSED IN M.V.C.NO.756/2015 ON
THE FILE OF PRL. SENIOR CIVIL JUDGE AND M.A.C.T., AT
KALABURAGI AND ENHANCE THE COMPENSATION FROM
RS.19,42,607/- TO 2,00,07,393/- WITH INTEREST @ 12% P.A.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
Dr.CHILLAKUR SUMALATHA J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard Smt. Anuradha M. Desai, the learned counsel
for the appellant as well as Sri Subhash Mallapur, the
learned counsel for the respondent No.2. Notice to
respondent No.1 stood dispensed with.
2. Challenging the award passed by the Motor
Accident Claims Tribunal, Kalaburagi [for short, 'the
Tribunal'], in MVC No.756/2015 dated 20.09.2017, the
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present appeal is filed. This appeal is by the claimant
seeking enhancement of compensation.
3. The appellant in the capacity of injured moved an
application claiming compensation of Rs.2,20,00,000/- in
total. The Tribunal through the impugned order awarded a
sum of Rs.19,42,607/- as compensation. Aggrieved by the
said amount which is awarded as compensation, with a
contention that the appellant is entitled to receive the
amount claimed, the present appeal is preferred.
4. Making her submission with regard to merits of
the matter, the learned counsel for the appellant contends
that the appellant sustained grievous injuries due to the
accident and he took expensive treatment including speech
therapy. The learned counsel states that the appellant was
a medical student as on the date of the accident and due to
loss of speech to certain extent, difficulty in walking,
difficulty in recognizing persons, blur in vision, etc., though
he completed his degree, he could not take up his profession
as doctor and earn. The learned counsel states that the
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appellant therefore became disabled by 100% and lost even
the marriage prospects. The learned counsel submits that
without considering the plight of the appellant as projected
through oral and documentary evidence, the Tribunal
awarded a paltry sum as compensation and therefore, the
present appeal is preferred.
5. The learned counsel also states that after the
accident, the appellant started taking treatment for the
injuries sustained and he is still continuing to do so. To
establish the fact that the appellant is taking treatment
continuously, he moved an application under Order XLI Rule
27 CPC vide I.A.No.1/2023 and the same may be
considered. The learned counsel submits that even an
intern is receiving Rs.30,250/- per month as stipend and
the appellant in his profession might have earned more than
a lakh per month but due to his disability he is unable to
pursue his practice as medical practitioner. The Tribunal
has lost sight of these factors. The learned counsel
ultimately seeks for enhancement of compensation.
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6. The submission made by Sri Subhash Mallapur
on the other hand is that P.W.2, the doctor who examined
the appellant, assessed the disability as 80% but not 100%
as contended by the learned counsel for the appellant. The
learned counsel also submits that all the faculties of the
appellant are working properly and therefore the Tribunal
has rightly considered the whole body disability as 27% and
awarded just sum as compensation and therefore the award
of the Tribunal needs no interference.
7. A perusal of record goes to show that on
02.01.2015 while the appellant along with his friend by
name Mahadev was proceeding on a motorcycle, the
offending Tractor bearing Reg.No.KA-28-A-6930 hit the
motorcycle due to which the appellant and his friend fell
down and sustained grievous injuries and were shifted to
hospital.
8. By the material that is produced by the
appellant, he could establish that he sustained severe head
injury, an injury over abdomen, and fracture of right radius.
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Ex.P.7 Wound Certificate reveals the nature of injuries
sustained by the appellant.
9. The evidence of P.W.2 - Dr. Bharat Konin, in this
regard is that the appellant sustained right radius lower
1/3rd fracture with styloidprocess ulcer fracture with facial
bone fracture. He also deposed that on assessment he
found 25% difficulty in walking, 20% difficulty in speech,
15% weakness of the left face and 10% blur of vision. P.W.2
considering the nature of injuries sustained assessed the
disability as 80%. The Tribunal however having considered
the evidence in toto came to conclusion that the disability as
regards the whole body is 27%. On this day, the learned
counsel for the appellant kept the appellant present before
the Court. The learned counsel appearing for respondent
No.2 also got the advantage of observing physical
appearance of the appellant. That apart, the documents
produced through I.A.No.1/2023 reveals that the appellant
is continuing his treatment still. This Court does not find
any reason for agreeing with the observations made by the
Tribunal while assessing the disability as 27%. Having
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regard to the fact that the doctor who subjected the
appellant to all kind of tests has come to a conclusion that
the appellant has suffered disability to the extent of 80%,
taking into consideration the nature of injuries sustained,
the treatment taken and also the fact that the appellant as a
doctor would be under an obligation to examine the patients
and prescribe medicines which requires proper hearing,
proper vision and application of mind, this Court is of the
considered view to take the disability as 50%. As rightly
contended by the learned counsel for the appellant, the
assessment of income of the appellant as Rs.6,000/- per
month cannot be appreciated. It is not in dispute that the
appellant was a medical student by the date of the accident
and he completed his degree thereafter. Also, in the light of
the injuries sustained and the disability, the appellant
would not be in a position to pursue his practice as that of
the other doctors. Therefore, this Court is of the considered
view that the income of the appellant has to be taken as
Rs.30,000/- per month. On taking the notional income of
the appellant as Rs.30,000/- per month, adding of 40% as
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future prospects having regard to the fact that the appellant
was aged about 22 years by the date of the accident, as per
the decision of the Hon'ble Supreme Court in National
Insurance Company Limited Vs. Pranay Sethi and
Others reported in (2017) 16 SCC 680, the monthly income
to the appellant comes to Rs.42,000/-. Thus the annual
income comes to Rs.5,04,000/-. The disability is assessed
as 50% in the light of the discussion that went on supra.
Thus the loss of annual income comes to Rs.2,52,000/-. On
applying the appropriate multiplier of 18 as per the decision
of the Hon'ble Supreme Court in Sarla Verma and Ors. Vs.
Delhi Transport Corporation and Another reported in
(2009) 6 SCC 121, the loss of future earning comes to
Rs.45,36,000/-.
10. The Tribunal assessed the compensation and
awarded a total sum of Rs.19,42,607/- under the following
heads:
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Heads Amount
Towards pain and Rs.1,00,000/-
suffering
Towards loss of amenities Rs.10,000/-
and enjoyment in life
Towards loss of future Rs.3,49,920/-
income
Towards medical Rs.14,40,687/-
expenses
Towards attendant's Rs.24,000/-
charges, food,
nourishment and
conveyance expenses
Towards loss of income Rs.18,000/-
during period of
treatment
Total Rs.19,42,607/-
However, having regard to the nature of the injuries
sustained more particularly in respect of loss of vision and
hearing capacity, the amount awarded under loss of
amenities and enjoyment in life i.e., Rs.10,000/- requires
enhancement. Multiple surgeries were conducted for the
head injury, facial injury and abdomen injury as seen from
the discharge certificate. The just amount that can be
awarded under the head of loss of amenities in life thus is
Rs.1,50,000/-. Also having regard to the fact that there is
loss of hearing, loss of vision and disability to walk properly,
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a sum of Rs.50,000/- under the head of loss of marriage
prospects is required to be awarded. Taking the income of
the appellant at Rs.30,000/- per month, the loss of income
as assessed by the Tribunal for a period of three months
comes to Rs.90,000/-. That apart, the amount awarded
under the head attendant charges, food, nourishment and
conveyance expenses requires enhancement. The just
amount that can be awarded under these heads is
Rs.1,00,000/-. Thus the appellant is entitled for
compensation under the following heads.
The computation of enhancement:
By Tribunal By this Court
Description
Pain and suffering Rs.1,00,000/- Rs.1,00,000/-
Loss of amenities and
Rs.10,000/- Rs.1,50,000/-
enjoyment in life
Towards loss of
-- Rs.50,000/-
marriage prospects
Loss of future income Rs.3,49,920/- Rs.45,36,000/-
Medical expenses Rs.14,40,687/- Rs.14,40,687/-
Attendants charges,
food, nourishment
Rs.24,000/- Rs.1,00,000/-
and conveyance
expenses
Loss of income during
Rs.18,000/- Rs.90,000/-
period of treatment
Total Rs.19,42,607/- Rs.64,66,687/-
Enhancement Rs.45,24,080/-
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Hence, the following:
ORDER
[i] I.A.No.1/2023 is allowed in exercise of
jurisdiction under Order XLI Rule 27 of CPC
in the interest of justice and equity.
[ii] The appeal is allowed in part modifying the
award enhancing compensation by
Rs.45,24,080/-.
[iii] The enhanced amount shall carry interest at
the rate of 6% per annum from the date of the
petition till the deposit.
[iv] The second respondent - Insurer is directed to
deposit the enhanced amount within a period
of eight [8] weeks from the date of receipt of a
certified copy of this judgment.
[v] 50% of the enhanced amount shall remain in
fixed deposit for a period of 05 years.
Sd/-
JUDGE
Sd/-
JUDGE
BL
Ct;vk
