Karnataka High Court
United India Insurance Co. Ltd vs Sri.Husensab S/O Amirsab Adamkhan on 22 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 102506 of 2019
C/W MFA No. 103481 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND 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. 102506 OF 2019 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 103481 OF 2019
IN MFA NO.102506/2019
BETWEEN:
UNITED INDIA INSURANCE CO. LTD,
DIVISIONAL OFFICE,
MARUTI GALLI, BELAGAVI,
TQ & DIST: BELAGAVI,
REPRESENTED BY DIVISIONAL MANAGER.
...APPELLANT
(BY SRI. C. V. ANGADI, ADVOCATE)
AND:
Digitally signed by
CHANDRASHEKAR 1. SRI. HUSENSAB S/O. AMIRSAB ADAMKHAN,
LAXMAN AGE: 26 YEARS, OCC: NIL,
KATTIMANI
Date: 2024.02.24 R/O. NEGINHAL, TQ: BAILHONGAL.
10:55:06 +0530
2. SRI. RAJU S/O. MALHARI KAREGAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. #617, RAJHANS GALLI,
ANGOL, BELAGAVI,
TQ: DIST: BELAGAVI.
...RESPONDENTS
(BY SMT. MOTE VANAMALA ASHOK AND
SRI. ALAM M. KAREKAZI, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLE ACT, 1988, PRAYING TO
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MFA No. 102506 of 2019
C/W MFA No. 103481 of 2019
CALL FOR RECORDS AND TO SET ASIDE THE IMPUGNED JUDGMENT
AND AWARD DTD: 03-12-2018, PASSED BY THE SENIOR CIVIL
JUDGE AND ADDL. M.A.C.T, BAILHONGAL IN MVC NO.1975/2015
AND ETC.
IN MFA NO.103481/2019
BETWEEN
SRI. HUSENSAB S/O. AMIRSAB ADAMKHAN,
AGE: 26 YEARS, OCC : NIL,
R/O. NEGINHAL,
TA: BAILHONGAL,
DIST: BELAGAVI.
...APPELLANT
(BY SMT. MOTE VANAMALA ASHOK AND
SRI. ALAM M. KAREKAZI, ADVOCATES)
AND
1. SRI. RAJU S/O. MALHARI KAREGAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. 617, RAJHANS GALLI,
ANGOL, BELAGAVI,
TQ AND DIST: BELAGAVI-591102,
2. THE MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICER,
MARUTI GALLI, BELAGAVI,
TQ & DIST: BELAGAVI-590001.
...RESPONDENTS
(BY SRI. PRASAD PATIL, ADVOCATE FOR RESPONDENT NO.1,
SRI. S. S. KOLIWAD, ADVOCATE FOR RESPONDENT NO.2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLE ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 03-12-2018 AND
14-12-2018 RESPECTIVELY PASSED IN MVC NO.1975/2015 BY
SENIOR CIVIL JUDGE & ADDL. M.A.C.T BAILHONGAL & ENHANCE
THE COMPENSATION AS CLAIMED BY APPELLANT IN PETITION BY
ALLOWING THE APPEAL IN THE INTEREST OF JUSTICE.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
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MFA No. 102506 of 2019
C/W MFA No. 103481 of 2019
JUDGMENT
The claimant as well as the insurer are in appeal against
judgment and award dated 03.12.2018 in MVC No.1975/2015
on the file of Senior Civil Judge and Addl. MACT, Bailhongal.
Claimant is in appeal claiming enhancement of compensation
whereas the insurer is in appeal questioning quantum of
compensation awarded by the Tribunal.
2. The appellant/claimant filed claim petition under
Section 166 of the Motor Vehicles Act, 1988 claiming
compensation for the accidental injuries sustained in a road
traffic accident on 19.07.2015 involving Auto rickshaw bearing
No.KA-22-C1256. It is claimed that the appellant/claimant was
driver and he was owning TATA ACE vehicle bearing No.KA-24-
7847. He was aged 24 years and earning income from his TATA
ACE vehicle. It is stated that the appellant/ claimant sustained
injuries and lost his right hand index and ring finger. On
appearance respondent/insurance company filed its statement
denying the claim petition averments and also denied the
accident that occurred on 19.07.2002 involving Auto rickshaw
bearing No.KA-22-C1256.
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3. Further it denied the injury sustained by the
appellant/claimant. It is stated that the liability if any is subject
to terms and conditions of the policy. Accident occurred due to
negligence of the appellant/claimant himself. Thus, prayed for
dismissal of the claim petition.
4. Claimant examined himself as PW1 and also
examined PW2 Doctor apart from marking Exs.P1 to P97.
Respondents have not examined any witness nor marked any
documents. The Tribunal on consideration of the material on
record awarded total compensation of Rs.7,25,105/- with
interest at the rate of 6% per annum from the date of petition
till its realization on the following heads:
Sl.No. Heads of Compensation Amount
1. Towards Pain and suffering 50,000.00
Towards disfigurement of three
2. 1,00,000.00
fingers
Towards special diet, conveyance
3. 2,600.00
and incidental charges
4. Towards Medical expenses 86,505.00
Towards loss of income during the
5. 5,000.00
laid up period
6. Towards loss of earning capacity 4,86,000.00
Total 7,25,105.00
5. While awarding above compensation the Tribunal
assessed the notional income of the appellant/claimant at
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Rs.9,000/- per month, assessed the whole body disability at
25% and adopted multiplier of 18.
6. Heard learned counsel Shri. C.V Angadi for
appellant and learned counsel Smt. Mote Vanamala Ashok and
Sri. Alam M. Karekazi for respondent No.1 and perused the
appeal papers including the Tribunal records.
7. Learned counsel for the appellant/claimant submit
that the income assessed by the Tribunal at Rs.9,000/- per
month is on the lower side. He submits that appellant/claimant
was owning TATA ACE vehicle bearing No.KA-24-7847 and
appellant/claimant has placed on record, Ex.P9 and 10 LMV
Driving license and RC card in respect of the TATA Ace vehicle
which he owns. Thus, he submits that the appellant/claimant
has proved his avocation and since he was renting out TATA
ACE vehicle, he was earning a handsome money. Further
learned counsel would submit that the assessment of disability
at 25% by the Tribunal is erroneous since the Doctor-PW2 has
opined that the injured suffers disability to an extent of 45% to
right upper limb. Therefore, the whole body disability ought to
have been assessed on higher side. Consequently, the Tribunal
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ought to have assessed the functional disability. He submits
that due to the loss of right hand index and ring finger, the
appellant/claimant is not in a position to drive TATA ACE vehicle
which he owns. Thus, he prays for assessing the whole
disability at higher side.
8. Further learned counsel submits that the
compensation awarded on the other heads are on lower side.
He submits that the appellant/claimant was inpatient for nearly
20 days or two intervals. Therefore, he submits that the
compensation awarded on the head of pain and sufferings,
disfigurement of fingers, towards diet, conveyance and
incidental charges as well as on the head of loss of income
during the laid up are also on the lower side. Thus, he prays for
allowing the appeal and to enhance the compensation.
9. Per contra, learned counsel Shri. C.V. Angadi for
insurer would submit that the income assessed by the Tribunal
is on the higher side. He submits that the accident is of the
year 2015 and the notional income in terms of the chart
prepared by the Karnataka State Legal Services Authority
(KSLSA) is Rs.8,000/-. Therefore, he submits that in the
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absence of any cogent material to assess the income of the
appellant/claimant it would be appropriate to assess the
notional income at Rs.8,000/- per month. Further learned
counsel would submit that the assessment of the whole body
disability at 25% is wholly erroneous and submits that in terms
of Doctor's evidence who has stated that the appellant/claimant
suffers 45% of disability to right upper limb, the Tribunal ought
to have taken 1/3rd of disability to a particular limb and
assessed whole body disability at 15%. Further learned counsel
would submit that the compensation awarded on other heads
are reasonable and just compensation which needs no
interference. Thus, he prays for dismissal of the appeal filed by
claimant and to allow the appeal filed by insurer.
10. Having heard the learned counsel for the parties
and on perusal of original records of the Tribunal, the following
points arise for consideration:
i. Whether the income assessed by the Tribunal
at Rs.9,000/- per month of the
appellant/injured is proper and correct?
ii. Whether the Tribunal is justified in assessing
whole body disability at 25%?
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iii. Whether the claimant would be entitled for
enhanced compensation?
11. Our answer to the above points would be in the
'affirmative', 'negative', and 'affirmative' respectively for the
following reasons.
12. The accident which occurred on 19.07.2015
involving Auto rickshaw bearing No.KA-22-C1256 and the
accidental injury sustained by appellant/claimant is not in
dispute in this appeal. The claimants are in appeal praying for
enhancement of compensation, whereas insurer is in appeal
questioning the quantum of compensation.
13. The appellant/claimant would contend that he owns
TATA ACE vehicle bearing No.KA-24-7847 and he has also
placed. LMV Driving license at Ex.P9 and also RC card in
respect of TATA ACE vehicle at Ex.P10. Thus, the
appellant/claimant has proved his avocation that he is driver
and he is owning TATA ACE vehicle. But the appellant/claimant
has not placed on record any material to establish his income
from TATA ACE vehicle. In the absence of any material to
establish income, it is for Court to determined or assess the
income notionally depending on the avocation of the
NC: 2024:KHC-D:4373-DB
appellant/claimant. As stated above the appellant/claimant has
proved his avocation that he is a Driver and he owns TATA ACE
vehicle. In that circumstances though the notional income in
terms of chart prepared by KSLSA is Rs.8,000/-, the Tribunal
has assessed monthly income of the appellant/claimant at
Rs.9,000/- per month. The income assessed by the Tribunal
appears to be on the lower side. Since, the appellant/claimant
was owning vehicle and he was having LMV driving license, we
deem it appropriate to assess the monthly income of
appellant/claimant at Rs.12,000/- per month.
14. The appellant/claimant has sustained the following
injuries in terms of Ex.P12-Disability certificate.
Amputation and suturing of right index finger, ring finger,
debridment, suturing and K-wire fixation for right middle and
little finger and scaphoid fracture.
15. In support of his case the claimant has examined
PW2 who is not a treated Doctor. PW2 has issued disability
certificate Ex.P12. PW2-Doctor has deposed that the
appellant/claimant suffers from disability to an extent of 45%
to right upper limb. It is settled position of law that disability to
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a particular limb is to be taken at 1/3rd for assessing whole
body disability. In the instant case also when the Doctor has
stated that the appellant/claimant suffers 45% of disability to
particular limb, the Tribunal ought to have taken whole body
disability at 1/3rd of disability to a particular limb. Therefore, if
the disability at 45% of a particular limb is taken, it would be
15% disability to the whole body. Thus, we assess the whole
body disability in the instant case at 15%.
16. It is contended that as the appellant/claimant has
lost his right hand index and ring finger and is not in a position
to drive the vehicle. The same cannot be believed. If the
appellant/claimant lost his right hand index and ring finger, it
cannot be said that he would not be in a position to drive the
TATA ACE vehicle, but he may suffer some inconvenience while
driving. For that purpose the whole body disability is taken at
15%. The functional disability would also assessed at 15%.
17. The multiplier taken as 18 taking the age of the
appellant/claimant at 24 years is proper and correct. Thus, the
appellant/claimant would be entitled for the following modified
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compensation on the head of loss of earning capacity.
12000X15%X12X18 = Rs.3,88,800/-
18. The compensation awarded on the head of pain and
suffering is proper and correct, taking note of the fact that
appellant/claimant was inpatient for nearly 20 days. The
compensation awarded on the head of disfigurement of the
fingers at Rs.1,00,000/- is on the higher side, we reduce it to
50,000/-. But the Tribunal has failed to award any
compensation on the head of amenities. Since the
appellant/claimant has lost 3 fingers, we deem it appropriate to
award a sum of Rs.75,000/- on the head of amenities. It is not
in dispute that the appellant/claimant was inpatient for more
than 20 days on two intervals. Therefore, the compensation
awarded by the Tribunal on the head of diet, conveyance and
incidental charges at Rs.2,600/- and loss of income during the
laid up period at Rs.5,000 is on the lower side. Taking note of
the fact that appellant/claimant was inpatient for more than 20
days, we deem it appropriate to award a sum of Rs.25,000/-
on the head of diet, conveyance and incidental charges. Due to
the injuries suffered definitely the claimant would have been
out of employment for nearly 3 months. Therefore, claimant
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would be entitled for compensation on the head of loss of
income during the laid up period at Rs.36000/-(12000X3).
Thus, the claimant would be entitled for following modified
compensation.
Sly.No. Heads of Compensation Amount
1. Towards Pain and suffering 50,000.00
Towards disfigurement of three
2. 50,000.00
fingers
Towards special diet, conveyance
3. 25,000.00
and incidental charges
4. Towards Medical expenses 86,505.00
4. Loss of amenities 75,000.00
Towards loss of income during the
5. 36,000.00
laid up period
6. Towards loss of earning capacity 3,88,800.00
Total 7,11,305.00
Amount awarded by the Tribunal 7,25,105.00
Reduction 13,800.00
19. Thus, the claimant would be entitled to total
compensation of Rs.7,11,305/- as against Rs.7,25,105/-
awarded by the Tribunal.
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment and award of
Tribunal is modified to an extent that the
claimants are entitled to total
compensation of Rs.7,11,305/- as
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against Rs.7,25,105/- awarded by
Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
d) The appellant-claimant shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within
a period of six weeks from the date of
receipt of certified copy of this judgment.
e) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KMS,RKM
