Karnataka High Court

The Divisional Manager vs Ishrat Begum And Anr on 27 February, 2024

Author: H.T.Narendra Prasad

Bench: H.T.Narendra Prasad

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                                                       MFA No. 203961 of 2023




                                 IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 27TH DAY OF FEBRUARY, 2024

                                             PRESENT

                           THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
                                                AND
                                THE HON'BLE MR. JUSTICE K V ARAVIND

                           MISCL. FIRST APPEAL NO. 203961 OF 2023 (MV-I)

                      BETWEEN:

                           THE DIVISIONAL MANAGER,
                           UNITED INSURANCE CO. LTD.,
                           2ND FLOOR, CENTURY COMPLEX,
                           OPP: SANGAM TALIKIES,
                           SUPER MARKET, KALABURAGI-585102.
                                                                    ...APPELLANT
                      (BY SRI. SANJAY M. JOSHI, ADVOCATE)

                      AND:

Digitally signed by
VARSHA N
                      1.   ISHRAT BEGUM D/O ANWAR SAB,
RASALKAR
Location: HIGH
                           AGE: 23 YEARS,
COURT OF
KARNATAKA                  OCC: EX-TAILORING AND EMBROIDERY,
                           R/O H.NO. 2-1247 117,
                           NEAR LUQMAN COLLEGE, SANTRASWADI,
                           KALABURAGI.

                      2.   SUGURESH S/O JAGADISH GULAGI,
                           AGE: 51 YEARS, OCC: OWNER OF TIPPER
                           BEARING NO KA-34/B-8715,
                           R/O H. NO. 933 BASAVESHWAR NAGAR,
                           SHAHAPUR-585223, DIST: YADGIR.
                                                                  ...RESPONDENTS
                      (BY SRI. B. ALI MOHAMMED AND
                          SRI. SANJEEV PATIL, ADVOCATES FOR R1)
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                                NC: 2024:KHC-K:1769-DB
                                    MFA No. 203961 of 2023




     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE ENTIRE RECORDS
IN MVC NO.229/2022, ON THE FILE OF MACT & III
ADDITIONAL SENIOR CIVIL JUDGE KALABURAGI, AND MODIFY
AND    REDUCED    THE    COMPENSATION     AWARDED   OF
RS.43,44,600/- WITH COST OF RS.5,000/-, BY ALLOWING
THIS APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
H.T.NARENDRA PRASAD J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act') has been

filed by the Insurance Company being aggrieved by the

judgment dated 07.07.2023 passed by MACT Kalaburagi,

in MVC No.229/2022 whereby awarded compensation of

Rs.43,44,600/- along with interest at the rate of 6% p.a.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 20.12.2021 at about 10:00 p.m.

when the claimant along with her mother were proceeding

in an auto rickshaw bearing Reg.No.KA-32/A-6276 from

Islamabad colony towards their house, when they were

near at Hello shoes showroom, on bare hills to

Santraswadi road, Kalaburagi, at that time the driver of a

NC: 2024:KHC-K:1769-DB

tipper bearing Reg.No.KA-34/B-8715 came in a rash and

negligent manner and dashed to auto rickshaw and caused

the accident, due to which the claimant sustained injuries.

Immediately she has been shifted to ASM Super Specialty

Hospital, Kalaburgi, where she took treatment from

20.12.2021 to 27.12.2021 and undergone surgery.

Thereafter again she has been shifted to United Hospital,

Kalaburagi, there she has taken treatment. After

recovering from injuries she filed a claim petition under

Section 166 of the Act seeking compensation.

3. On service of notice, respondent No.1 remained

absent and placed ex parte before the Tribunal.

4. Respondent No.2 appeared through counsel and

filed written statement in which the averments made in

the petition were denied. The age, avocation and income

of the claimant and the medical expenses are denied. It

was further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he sought

for dismissal of the petition.

NC: 2024:KHC-K:1769-DB

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the following issues:

(i) Whether petitioner proves that on 20.12.2021 at about 10-00 P.M. near at Bare Hills to Santraswadi road, at Hello Shoes Room, Kalaburagi, she met with an accident and sustained injuries due to rash and negligent driving by the driver of a Ashok Leyland Tipper bearing No.KA-34/B-8715?

(ii) Whether the petitioner is entitled for the compensation? If so, how much and from whom?

(iii) What order or award?

6. The claimant herself was examined as PW-1

and Dr.Raju Kulkarni was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P20. Respondent

No.2 not led any evidence. On appreciation of oral and

documentary evidence, the Tribunal has answered issue

No.1 in affirmative and issue No.2 partly in affirmative and

awarded compensation of Rs.43,44,600/- along with

NC: 2024:KHC-K:1769-DB

interest at the rate of 6% p.a. Being aggrieved by the

same, the insurance company is in appeal.

7. Sri. Sanjay M. Joshi, the learned counsel for the

appellant-insurance company has raised the following

contentions:

Firstly, the amount awarded by the Tribunal is illegal,

excessive and the nature of injuries and the manner of

computation of compensation is erroneous and same is

liable to be reduced.

Secondly, the doctor has been examined as PW.2, he

has deposed that the claimant has suffered whole body

disability at 55.66% but nowhere in the evidence of the

doctor deposed that the claimant is required to attender

for her day to day work and there was no amputation of

any leg.

Thirdly, the compensation awarded by the Tribunal

towards attendant charges at Rs.10,80,000/- is on higher

side. He further contended that medical documents and

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bills produced by the claimant for future medical expenses

has been awarded by the Tribunal in respect of future

medical expenses is concerned, the Medical Officer-PW.2

has deposed that she required only Rs.50,000/- for future

medical expenses there is no suggestion for any further

surgery. Under this circumstance, future medical expenses

awarded by the Tribunal Rs.2,00,000/- is also on the

higher side.

Lastly, he contended that the Tribunal has awarded

compensation towards marriage prospects and life

expectancy is on the higher side. Hence, he sought for

allowing the appeal by reducing the compensation.

8. Per contra, the learned counsel for the claimant

has raised following counter contentions:

Firstly, he has contended that at the time of accident

she was doing tailoring work due to the accidental injuries

she suffered crush injuries to her both legs; she cannot do

tailoring work and she cannot do her day to day work also.

The doctor has been examined and deposed that the

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claimant has suffered whole body disability of 56.66% and

due to crush injuries she cannot walk without support of

walker, she cannot stand for more than 15 minutes,

weakness at left knee, she cannot squat or sit cross

legged, constant pain in left thigh and left region and she

cannot completely fold her both knees and she required

one attendor throughout her life. Therefore, the Tribunal

has rightly awarded compensation of Rs.10,80,000/- for

attendant charges. The Tribunal has awarded

compensation towards expectancy of life and marriage

prospects is also just and reasonable. Hence, he sought

for dismissal of appeal.

9. Heard the learned counsel for the parties and

perused the judgment and award of the Tribunal.

10. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred on

20.12.2021 due to rash and negligent driving of the tipper

bearing Reg.No.KA-34/B-8715 by its driver, due to that

accident the claimant has suffered the following injuries:

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Avulsed CLW over left knee with crushing of tissue

Fracture of right tibia and fibula

Selling over right left

Abrasion over left foot

Fracture of proximal phalanx of great toe

11. The Doctor who has been examined as PW.2 in

his evidence he has deposed that the claimant has

suffered 56.66% disability to whole body. Considering the

evidence of the doctor the Tribunal has assessed the whole

body disability at 50%. Even though the doctor was

deposed that the claimant has suffered crush injuries to

her leg and due to the said injuries she cannot walk

without support of walker, she cannot stand for more than

15 minutes, weakness at left knee, she cannot squat or sit

cross legged. Considering the evidence of the doctor,

injuries suffered by the claimant, considering the medical

records, and the disability certificate/Ex.P16, we are of the

opinion that the compensation awarded by the Tribunal

under the head attendant charges is on higher side i.e.

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Rs.10,80,000/- and the same has to be reduced to

Rs.5,80,000/-.

12. The Tribunal has awarded Rs.50,000/- towards

expectancy of life after awarding a compensation under

heads of marriage prospects and future prospects is

without authority of law therefore the same has to be

reduced from total compensation.

13. In respect of future medical expenses is

concerned, the doctor has been examined as PW.2. In his

evidence he has deposed that claimant is required

Rs.50,000/- towards future medical expenses and there is

no evidence for future surgery. Considering the evidence

of doctor and medical records, we are of the opinion that

the amount awarded by the Tribunal towards future

medical expenses Rs.2,00,000/- has to be reduced to

Rs.1,00,000/-.

14. Thus, for the aforesaid reasons, the total

compensation is re-assessed as under:

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                                      NC: 2024:KHC-K:1769-DB





                                Amount awarded             Amount
Sl.
          Different heads        by the Tribunal        awarded by this
No.
                                                            Court
 1.   Pain and suffering                  Rs.50,000/-       Rs.50,000/-
      Attendant charges,
 2.   food and conveyance                 Rs.30,000/-        Rs.30,000/-
      charges
 3.   Loss of future income          Rs.21,54,600/-       Rs.21,54,600/-
 4.   Medical expenditure             Rs.3,70,000/-        Rs.3,70,000/-
      Loss of income
 5.                                       Rs.60,000/-        Rs.60,000/-
      during treatment
      Loss of amenities and
 6.                                       Rs.50,000/-        Rs.50,000/-
      future nutrition food
      Future medical
 7.                                   Rs.2,00,000/-       Rs.1,00,000/-
      expenses
 8.   Attendant charges           Rs.10,80,000/-         Rs.5,80,000/-
 9.   Marriage prospects            Rs.3,00,000/-          Rs.3,00,000/-
10.   Expectancy of life              Rs.50,000/-                   -----
                        Total    Rs.43,44,600/-         Rs.36,94,600/-

15. The Tribunal after considering the evidence of

doctor, injuries suffered by the claimant and considering

the age and avocation of the claimant, the Tribunal has

granted compensation on other heads through the

impugned order is just and reasonable.