Karnataka High Court
Ganesh S/O Mallappa Shapur vs Kalmesh Shivanand Koti on 27 February, 2024
-1-
NC: 2024:KHC-D:4579
MFA No. 20939 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 20939 OF 2012 (MV-I)
BETWEEN:
GANESH S/O. MALLAPPA SHAPUR,
AGED ABOUT 46 YEARS,
OCC: BARBER (PRESENTLY NIL),
R/O. JAIN PETH, BAGALKOT.
...APPELLANT
(BY SRI. D. V. PATTAR FOR
SRI. ANAND R. KOLLI, ADVOCATES)
AND:
1. KALMESH SHIVANAND KOTI,
AGED ABOUT 45 YEARS,
OCC: OWNER OF THE MOTOR
BIKE BEARING NO. KA-29/Q-8183,
R/O. M. G. ROAD, BAGALKOT.
Digitally 2. THE DIVISIONAL MANAGER,
signed by
ROHAN
HADIMANI
UNITED INDIA INSURANCE CO. LTD,
ROHAN
HADIMANI T
T Date:
MARUTI GALLI, BELGAUM.
2024.03.01
11:37:25
...RESPONDENTS
+0530
(BY SRI. S. C. HIREMATH, ADV. FOR R1;
SMT. ASMA N. M. FOR
SMT. PREETI SHASHANK, ADV. FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1)
OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE
RECORDS AND MODIFY THE JUDGMENT AND AWARD PASSED BY
MEMBER, MACT-IV, BAGALKOT IN M.V.C NO.392/2009 DTD.
19/12/2011, AND ENHANCE THE COMPENSATION BY ALLOWING
THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:4579
MFA No. 20939 of 2012
JUDGMENT
This appeal is by the injured/claimant seeking
enhancement of compensation under judgment and award
dated 19.12.2011 in MVC No.392/2009 by the Member
MACT No.IV, Bagalkot (for short, 'Tribunal')
2. Brief facts leading to file this appeal are that on
27.03.2009, the appellant/claimant was coming to a shop
on the right side of the road at about 10.30 a.m., the rider
of the motor cycle bearing No.KA-29/8183 came in high
speed in rash and negligent manner and dashed to the
appellant. The appellant fell down and sustained grievous
injuries. He has suffered fracture on both legs, fracture of
right wrist and other injuries. It is averred that he has
taken treatment in the Hospital and incurred huge medical
expenses. He is working as Barber and due to the accident
he has suffered disability and there is substantial reduction
in his income. The respondent/insurance company filed
objection denying the age, income and avocation of the
petitioner and sought to dismiss the claim petition.
NC: 2024:KHC-D:4579
3. The appellant examined himself as PW1 and
Doctor as PW2 and got marked 47 documents as Exs.P1 to
P7. The respondent with consent marked Ex.R1-the
insurance policy.
4. The Tribunal upon hearing the parties and on
perusal of the record allowed the claim petition by
awarding the total compensation of Rs.1,63,650/- along
with interest at the rate of 6% per annum from the date of
petition to till realization. Being aggrieved by the award of
compensation, the present appeal is filed by the claimant
seeking for enhancement.
5. Heard learned counsel Shri. D.V. Pattar
appearing for the appellant submits that the Tribunal
committed grave error in assessing income of the
appellant/claimant at Rs.3,000/- per month. He is working
as Barber and earning more than 10,000/- per month. It is
submitted that the Tribunal has further committed error in
assessing disability of the appellant at 20%. Contrary to
evidence of PW1 and Ex.P46, he seeks to reconsider the
same. It is further submitted that the Tribunal has
NC: 2024:KHC-D:4579
awarded lower compensation under the head of pain and
suffering and attendant charges. Hence, he seeks to allow
the appeal by enhancing compensation appropriately.
6. Per contra, learned counsel Smt. Preeti
Shashank for respondent No.2 supports the impugned
judgment and award of the Tribunal and submits that the
appellant himself has pleaded in the claim petition that he
is earning sum of Rs.3,000/- per month. Hence, question
of considering the higher income would not arise. Learned
counsel further submits that taking note of the experts
evidence, the Tribunal has justified in assessing the
disability of the appellant at 20% which also does not call
for any interference. Learned counsel submits that the
award of compensation by the Tribunal under other heads
is just and proper and seeks to dismiss the appeal.
7. Having heard the learned counsel for the parties
and on perusal of the material available on record, the
only point that arise for consideration in this appeal is,
whether the appellant/claimant would be entitled to
enhanced compensation?
NC: 2024:KHC-D:4579
8. Answer to the above point would be in the
'affirmative' for the following reasons.
9. The parties to the proceeding does not dispute
that the appellant suffered grievous injuries in road
accident dated 27.03.2009 and taken treatment at Dr.
Kalburgi hospital and subsequently shifted to Dr. Kanthi
hospital, Bagalkot. The appellant/claimant is made
averment that he is working as a Barber and earning
substantial amount and due to the accident, his income is
reduced. However, the appellant has not produced any
evidence to support the income. In the absence of any
such evidence this Court normally place reliance on the
chart prepared by the Karnataka State Legal Services
Authority to assess the income. Taking note of the
aforesaid chart, this Court assess the income of the
injured at Rs.5,000/- per month.
10. The Tribunal has justified in assessing the
disability of the appellant at 20%. Taking note of the
evidence of PW1 and Ex.P46 and other medical records,
this Court does not find any error in such assessment.
NC: 2024:KHC-D:4579
Thus, the claimant would be entitled to modified
compensation under the head of future loss of income due
to disability as under:
Rs.5,000 x 12 x 13 x 20% = Rs.1,56,000/-
11. This Court taking note of the injuries suffered
by the appellant is of the considered view that the
appellant is entitled for additional Rs.15,000/- under the
head of pain and suffering and additional Rs.3,000/- under
the head of attendant charges. In so far as finding and
award of compensation of the Tribunal on other heads is
unaltered. The Tribunal committed grave error in not
awarding any compensation under the head of loss of
amenities and compensation for the laid up period. It
would be just and appropriate to award Rs.15,000/- under
the head of loss of amenities and Rs.10,000/- under the
head of loss of income during laid up period.
12. Thus, the claimant would be entitled to total
compensation on the following heads:
NC: 2024:KHC-D:4579
HEADS AMOUNT (in
Rs.)
Towards Pain and suffering 45,000/-
Future loss of earning capacity 1,56,000/-
Towards Medical Expenses 39,050/-
Towards attendant charges 4,000/-
Future Medical Expenses 2,000/-
Loss of amenities 15000/-
Loss of income during laid up period 10,000/-
Total 2,71,050/-
Amount awarded by Tribunal 1,63,650/-
Enhancement 1,07,400/-
13. Thus, the claimant shall be entitled to total
compensation of Rs.2,71,050/- as against Rs.1,63,650/-
awarded by the learned Tribunal.
14. In the result, this Court proceeds to pass the
following:
ORDER
a) Appeal stands allowed in part.
b) The impugned judgment and award of
the Tribunal is modified to an extent
that the claimant would be entitled to
total compensation of Rs.2,71,050/-
as against Rs.1,63,650/- awarded by
the Tribunal.
NC: 2024:KHC-D:4579
c) The enhanced compensation of
Rs.1,07,400/- shall carry interest at
the rate of 6% per annum from the
date of petition till the date of
payment.
d) The Insurance Company shall deposit
the enhanced compensation amount
with accrued interest before the
Tribunal within a period of six weeks
from today.
e) On such deposit, the same shall be
released in favour of the
appellant/claimant.
f) Draw modified award accordingly.
Sd/-
JUDGE
RKM
