Karnataka High Court

Satish S/O Kamalakarrao vs Basavaraj S/O Somalingappa Kaulagi And ... on 20 February, 2024

Author: B.M.Shyam Prasad

Bench: B.M.Shyam Prasad

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                                                      MFA No.201482 of 2021




                               IN THE HIGH COURT OF KARNATAKA,

                                      KALABURAGI BENCH

                          DATED THIS THE 20TH 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.201482 OF 2021 (MV-I)

                   BETWEEN:

                   SATISH S/O KAMALAKARRAO
                   AGE: 42 YEARS
                   OCC: ELECTRICIAN CONTRACTOR (NOW-NIL)
                   R/O PLOT NO.70,
                   N.G.O. LAYOUT
                   NEAR HADI BASAVANNA TEMPLE
                   UDANOOR ROAD,
                   KALABURAGI.

                                                               ...APPELLANT

Digitally signed
by SWETA           (BY SRI NARENDRA REDDY, ADVOCATE FOR
KULKARNI           SMT. SRIDEVI J. TUPPAD, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
                   AND:

                   1.   BASAVARAJ
                        S/O SOMALINGAPPA KAULAGI
                        AGE: 49 YEARS
                        OCC: DRIVER CUM OWNER OF VEHICLE
                        R/O. MADIYAL,
                        TQ: ALAND
                        DIST. KALABURAGI - 585 211.
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                                 MFA No.201482 of 2021




2.   THE ORIENTAL INSURANCE CO. LTD.,
     THROUGH ITS DIVISIONAL MANAGER
     1ST FLOOR,
     N.G. COMPLEX
     OPP. MINI VIDHANA SOUDHA MAIN ROAD,
     KALABURAGI - 585 102.

                                       ...RESPONDENTS

(BY SRI MOHAMMAD ABDUL QAYUM, ADV., FOR
SRI. J. AUGUSTIN, ADVOCATE FOR R2;
R1 SERVED)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR

VEHICLES ACT, PRAYING TO CALL FOR RECORDS AND

MODIFY THE JUDGMENT AND AWARD DATED 08.03.2021

ENHANCE THE COMPENSATION OF RS.32,02,800/- AS PRAYED

BY THE APPELLANT HEREIN M.V.C. NO.751/2019 BY THE

HON'BLE IN THE COURT OF THE I ADDL. SENIOR CIVIL JUDGE

AND M.A.C.T. AT KALABURAGI BY HOLDING THE BOTH

RESPONDENTS JOINTLY AND SEVERALLY BY ALLOWING THE

APPEAL IN THE INTEREST OF JUSTICE AND EQUITY, AND

ENHANCE THE RATE OF INTEREST AWARDED FROM 6% TO

9% IN THE ENDS OF JUSTICE.


      THIS APPEAL COMING ON FOR ORDERS THIS DAY

B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
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                                            MFA No.201482 of 2021




                             JUDGMENT

This appeal is by the claimant in MVC No.751/2019 on

the file of the I Addl. Senior Civil Judge and Civil Judge and

MATC, Kalaburagi, [for short, 'the Tribunal']. The Tribunal,

by the impugned judgment and award dated 08.03.2021,

has partly allowed the appellant's claim petition granting

compensation in a sum of Rs.10,47,200/- along with

interest at 6% per annum from the date of the claim petition

till the date of deposit under the following heads:

          Pain and suffering                    Rs.30,000/-

          Attendant Charges, Food and
                                                 Rs.6,500/-
          Conveyance Charges

          Loss of future income               Rs.5,58,100/-

          Medical expenses                    Rs.4,11,100/-

          Loss   of    income      during
                                                Rs.26,500/-
          treatment

          Loss of amenities and nutrition
                                                Rs.15,000/-
          and food

                                    Total Rs.10,47,200/-

2. Sri Narendra Reddy, the learned counsel is

permitted to appear on behalf Smt. Sridevi J. Tuppad who is

on record for the appellant, and Sri Mohd. Qayum, the

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learned counsel for the second respondent-Insurer, are

heard for final disposal of the appeal in the light of the

submission there is no dispute that the appellant has

suffered debilitating injuries in a road traffic accident on

23.03.2019, and that the accident is because of the

Motorcycle bearing Registration KA-32/ES-9313. The

learned counsels further submit that the questions for

consideration would be whether the Tribunal is justified in

fastening the liability on the first respondent [the owner of

the motorcycle] absolving the Insurer and whether the

appellant is entitled for any enhancement in compensation.

3. Sri Narendra Reddy submits that the Insurer's

case is that the first respondent permitted his nephew, Sri

Manoj [a 15 year old boy] who did not hold a driving licence

to ride the motorcycle and such the Insurer cannot be made

liable, and that Tribunal has accepted this defense solely

because the first respondent remained ex parte. The learned

counsel submits that the Tribunal should have permitted

the Insurer to pay the appellant the compensation

determined with liberty to recover the same from the first

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respondent because the appellant would be a third party.

Sri Mohd. Abdul Qayum is unable to controvert these

contentions, and indeed the law would be that when a third

party is injured in an accident, the Insurer of the offending

vehicle will have to pay the injured and recover the

compensation from the owner of the offending vehicle. There

must be interference in this regard with suitable directions

to the Insurer and with liberty to recover the same from the

owner.

4. Sri Narendra Reddy, as regards enhancement in

compensation, submits that the Tribunal is very

conservative in assessing the disability at 27% though the

doctor who treated the appellant has assessed permanent

disability at 75% with an addition of 5% towards loss of

sensation. Sri Narendra Reddy also submits that the

appellant has placed evidence on record to demonstrate that

he was a Licensed Electrical Contractor whose licence was in

force as on the date of the accident and despite the same,

the Tribunal has taken the income of the appellant, for the

purposes of loss of future income at Rs.13,250/- and

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therefore, there must be appropriate enhancement under

loss of future income with this Court re-assessing the

permanent functional disability and income.

5. The appellant, who has examined himself as

P.W.1, has stated in his evidence that he was a Licenced

Electrical Contractor and earning Rs.3,00,000/- per annum

and because of the disability suffered he is unable to work

as an Electrical Contractor. The appellant has marked his

Electrical Contractor Supervisor (General) Grade-I Permit

and Class-I Electrical Contractors Licence as Exs.P9 and 10,

and it is seen that his licence is renewed for the period up-to

30th April 2020 with due remittance in the month of August

2018 which is before the date of the accident. This Court

must opine that the Tribunal in the light of this evidence

could not have inferred that the appellant was an unskilled

worker and taken his income based on the notified

minimum wages. Further, on a careful consideration of the

circumstances as aforesaid, and the appellant's failure to

establish actual income, this Court is of the considered view

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that it would be reasonable to take a sum of Rs.16,000/- per

month as the income for the purposes of deciding loss of

future income and for computing the loss of income during

laid up period.

6. The appellant has examined Dr. Raju Kulkarni,

who has issued the Disability Assessment Certificate as per

Ex.P.14. The doctor has stated that the appellant has

suffered loss of sensation of right-hand opining that the

appellant suffers from complete monoplegia of the right

hand with no active movement. The doctor has assessed the

disability of the right hand of the appellant at 75% with an

addition of 5% towards loss of sensation. The Tribunal has

taken the disability at 27% applying yardstick of taking

1/3rd of the disability assessed as the functional disability.

However, in this case with the evidence that the appellant

was a Licensed Electrical Contractor and that he has

completely lost of the use of the right hand, a mathematical

calculation of functional disability would not be appropriate

and there must be just assessment because the appellant

will not be able to work as an Electrician and to that extent

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there is functional disability. This Court is of the considered

opinion that the appellant's permanent functional disability

must be taken at 35%.

7. It cannot be gainsaid that there must be addition

towards future prospects and because the appellant was

aged between 48 years, the appropriate addition towards

future prospects will be 25%. If the loss of future income is

re-computed with these parameters retaining the multiplier

of '13', the appellant will be entitled for a sum of

Rs.10,92,000/- towards loss of future income which is

computed as follows:

Notional monthly income Rs.16,000/- 25% addition towards future Rs.4,000/- prospects Notional monthly income with Rs.20,000/-

    addition of future prospects at
    25%
    Annual income                         Rs.2,40,000/-

    Total income and multiplier          Rs.31,20,000/-
    Functional disability                          35%
    Loss of future income because of     Rs.10,92,000/-
    permanent disability

8. The loss of income during laid up period must be

enhanced to Rs.32,000/- as against Rs.26,500/- awarded by

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the Tribunal. Further, this Court opines that there must be

enhancement towards others heads and accordingly,

compensation of Rs.50,000/- as against Rs.30,000/-

towards pain and suffering, Rs.30,000/- as against

Rs.15,000/- towards loss of amenities and Rs.15,000/- as

against Rs.6,500/- towards attendant charges and nutrition

are awarded. The compensation granted under medical

expenses remains unaltered. The appellant will be entitled

for enhancement in a sum of Rs.5,82,900/. The

enhancement is computed as shown in the following

comparative table of the compensation awarded by the

Tribunal and by this Court.

Description By Tribunal By this Court

Pain and suffering Rs.30,000/- Rs.50,000/-


      Attendant Charges,
      Food          and
                                          Rs.6,500/-         Rs.15,000/-
      Conveyance
      Charges

      Loss   of        future
                                    Rs.5,58,100/-       Rs.10,92,000/
      income

      Medical expenses              Rs.4,11,100/-       Rs.4,11,100/-

      Loss    of   income
                                      Rs.26,500/-            Rs.32,000/-
      during treatment
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  Loss of amenities
  and nutrition and             Rs.15,000/-      Rs.30,000/-
  food.
                    Total    Rs.10,47,200/-   Rs.16,30,100/-

          Enhancement                 Rs.5,82,900/-



 Hence, the following:
                            ORDER

[i]     The appeal is allowed in part modifying the

Tribunal's impugned judgment and award

dated 08.03.2021 and granting an enhanced

compensation of Rs.5,82,900/- along with

interest at the rate of 6% per annum from the

date of petition with the Tribunal till the date

of deposit.

[ii] The second respondent - the Insurer shall

deposit the enhanced compensation within a

period of eight [8] weeks from the date of

receipt of a certified copy of this judgment.

[iii] The disbursement and deposit of enhanced

amount shall be as per the order of the