Karnataka High Court
Basavant S/O Hanamanthappa Dalwai vs Mehaboob Hussainsab Bepari on 29 February, 2024
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MFA No. 100389 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 100389 OF 2015 (MV)
BETWEEN:
MR. BASAVANT
S/O. HANAMANTHAPPA DALWAI,
AGE: 31 YRS,
OCC: DRIVER, NOW NIL,
R/O. CHACHADI,
TQ: SAUNDATTI,
DIST: BELAGAVI,
NOW RESIDING AT
SHIVAJI NAGAR,
1ST MAIN, BELAGAVI.
...APPELLANT
(BY SRI. RAJENDRA R. PATIL, FOR
SRI. SHIVAKUMAR N. BENDIGERI, ADVOCATES)
AND:
ROHAN
HADIMANI
T 1. SRI. MEHABOOB HUSENSAB BEPARI,
Digitally signed by
ROHAN HADIMANI AGE: 50 YEARS,
T
Date: 2024.03.05 OCC: BUSINESS,
11:13:36 +0530
R/O. PARISHWAD,
TAL: KHANAPUR,
DIST: BELAGAVI.
2. THE MANAGER,
THE RELIANCE GENERAL INSURANCE
CO. LTD, KOLHAPUR CIRCLE,
KLE HOSPITAL,
BELAGAVI.
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MFA No. 100389 of 2015
3. BASANAGOUDA
LAXMANAGOUDA KULKARNI,
AGE: 51 YEARS,
OCC: BUSINESS,
R/O. PLOT NO.637,
SCHEME NO.13,
TV CENTER,
BELAGAVI.
4. THE MANAGER,
THE RELIANCE GENERAL
INSURANCE CO. LTD,
KOLHAPUR CIRCLE,
KLE HOSPITAL,
BELAGAVI.
...RESPONDENTS
(BY SRI. CHETAN MUNNOLLI AND
SMT. SURABHI KULKARNI AND
SRI. LOKESH HEGDE, ADVS. FOR RESPONDENT NO.1
SRI. NAGARAJ C. KOLLORI, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.3 AND 4 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THIS APPEAL AND
CLAIM AND GRANT REASONABLE COMPENSATION OF RS.15,00,000/-
WITH COSTS AND PROPER INTEREST FROM THE DATE OF PETITION,
TILL THE REALIZATION OF AWARD AMOUNT AGAINST THE
RESPONDENTS AND ACCORDINGLY MODIFY THE AWARD DATED
19/06/2014 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND
ADDL. MACT, BELGAUM IN MVC NO.1294/2010, IN THE INTEREST OF
JUSTICE AND ANY OTHER RELIEFS MAY KINDLY BE GRANTED.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 100389 of 2015
JUDGMENT
This appeal is by the claimant challenging judgment
and award dated 19.06.2014 passed in MVC
No.1294/2010 on the file of I Additional Senior Civil Judge
and Additional MACT, Belagavi.
2. Brief facts leading to filing of this appeal are
that on 25.03.2010 at about 3.45 p.m., the appellant was
driving the Truck bearing No.KA/22-B-2493 along with the
cleaner and the truck was loaded with sand. When he was
near Marihal Bus Stand at Belgaum -Bagalkot road,
another truck bearing No.KA-31/1610 which was also
loaded with sand has overtook the appellant's truck in a
rash and negligent manner and without showing any
signals, the said driver suddenly stopped the truck infront
of the appellant's truck and thereby accident took place.
Due to the said impact, the appellant sustained grievous
injuries as under:
i. Comminuted fracture of left femur.
ii. Fracture of 1/3rd of right femur.
iii. Fracture of left superior and inferior pubic rami.
iv. Fracture of right superior and inferior pubic rami.
v. Bladder rupture.
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vi. Urethra rupture.
vii. Mesenteric rupture with haematoma.
3. Immediately after the accident, the appellant
was taken to the Vijaya Hospital, Belgaum and he has also
taken treatment at Kulkarni Endosurgery institute and
reconstructive urology Center. He was admitted to the
hospital as indoor patient for one month. That his right leg
was operated on several times for fractures of the thigh
bones and bones below the keen joint as well as severe
damage to the nerve of the right leg. That the appellant is
still under treatment and he is continuously under follow
up treatment and he has spent Rs.4,00,000/- towards the
medical treatment. Prior to the accident the appellant was
skilled driver and getting income of Rs.10,000/- per
month. Due to the accidental injuries and permanent
disability he is unable to continue his earlier work and he
lost his source of income completely. He has totally
suffered mentally, physically and financially.
4. The respondents entered appearance before the
Tribunal and filed objections. It is averred that the
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claimant as well as driver of the Truck bearing registration
No.KA-31/1610 did not possess the valid and effective
driving license he has violated the policy conditions, they
have denied age, income, avocation of the claimant and
sought for dismissal of the claim petition.
5. The appellant/claimant adduced the evidence
before the Tribunal by examining himself as PW1 and
other two witnesses and produced 30 documents as
Exs.P1 to P30. The respondents have not produced any
evidence, with the consent marked the document as
Ex.R1. The Tribunal after assessing the evidence has
awarded the compensation under the following heads:
Particulars Amount
(in Rs.)
Pain and sufferings 50,000/-
Medical and other incidental expenses 1,74,597/-
Loss of future earning capacity due to 2,68,800/-
disability
Loss of amenities in life and loss of future 25,000/-
happiness of life
Loss of income during laid up period 14,000/-
Total 5,32,000/-
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6. Being aggrieved by the award of compensation,
the present appeal is filed by the claimant/injured seeking
enhancement of compensation.
7. Heard Sri.Rajendra R. Patil for Sri. Shivakmar
Bendigeri learned counsel appearing for appellant. Sri.
Chetan Munnolli, learned counsel appearing for respondent
No.1.
8. Shi. Rajendra R. Patil submits that the Tribunal
committed grave error in assessing disability of the
appellant/injured at 20% which is contrary to the Exs.P26,
27, and the evidence of PW2. The evidence of PW2 clearly
indicates that the appellant has suffered five major injuries
and one simple injury and the Doctor has assessed 45% of
disability to his left lower limb and 10% of disability to
right lower limb. Hence, Tribunal ought to have assessed
disability at 50% to the whole body. He adduced that the
Tribunal committed further error in not awarding any
compensation under the head of loss of future prospects of
appellants. He also submits that the award of
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compensation under the head of pain and sufferings, loss
of amenities and loss of income during laid up period is on
lower side. Hence, he seeks to enhance the same.
9. Per contra, learned counsel appearing for
respondent No.2/Insurance Company supports the
impugned judgment and award of the Tribunal and
submits that the Tribunal is justified in assessing the
disability of the appellant/injured at 20%. It is submitted
that the award of compensation on other heads is also just
and proper and does not call for any interference. Hence,
seeks for dismissal of the appeal.
10. I have heard the arguments of the learned
counsel for the appellant/injured and the learned counsel
for respondent No.2/Insurance Company. Perused the
memorandum of appeal and the impugned judgment and
award passed by the Tribunal and the records of the
Tribunal.
11. The only point that would arise for
consideration in this appeal is:
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Whether the appellant/injured is entitled to higher
compensation?
12. My answer to the above point is in the
affirmative for the following reasons.
13. The parties to the proceedings do not dispute
that the appellant/injured has suffered injuries in a road
accident that occurred on 25.03.2010. It is also not in
dispute that the offending truck bearing registration
No.KA-31/1610 was insured with respondent
No.2/insurance company. The contention of the learned
counsel appearing for the appellant/claimant is that the
Tribunal has committed an error in assessing the disability
of the appellant at 20%. To answer the said contention
this Court perused the medical evidence available on
record. The oral testimony of PW3 indicates that the
appellant/injured has suffered functional disability and
made the following observations:
• "Pain and restriction of left hip movements.
• Pain and restriction of right knee movements.
• Muscle wasting of left thigh present
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• Shortening of left lower limb present
CONCLUSION:
Considering the clinical and radiological findings and after
going through ALIMCOI manuals the patient in my opinion
has got permanent physical disability amounting to 45%
(Forty Five Percent) left lower limb and 10% (Ten Percent)
to right lower limb."
14. PW3 who has issued disability certificate at
Ex.P27 which is in consonance with his evidence on record.
Taking note of the injuries suffered by the appellant more
particularly the observations that his left lower limb is
shortened and there two mal united fractures, is of the
considered view that the Tribunal has committed an error
in assessing the disability of the appellant at 20%. Taking
note of the oral evidence of PW3 and Exs.P26 and 27, this
Court is of the view that the interest of justice would be
met if the disability is assessed at 26% to the whole body
for determination of compensation. Thus, loss of future
income due to disability is recomputed as under:
Rs.7,000 (income) x 12(months) x 16(multiplier) x
26% (disability) = Rs.3,49,440/-
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15. The Tribunal has rightly assessed the income of
the appellant/injured which is un-altered. Insofar as award
of compensation under the head of pain and suffering and
loss of amenities in life is concerned, the appellant/injured
is entitled for an additional sum of Rs.40,000/-. The said
additional amount is granted taking note of the fact that
the appellant has suffered five major injuries, one simple
injury and had undergone three surgeries.
16. Thus, in all, the appellant/injured shall be
entitled to modified compensation as under:
HEADS AMOUNT
(in Rs.)
Towards pain and suffering, loss of 1,15,000/-
amenities in life
Towards Medical expenses 1,74,597/-
Loss of future earnings due to disability 3,49,440/-
Loss of income during laid-up period 14,000/-
Total 6,53,037/-
17. Thus, the appellant/injured shall be entitled to
total compensation of Rs.6,53,037/- as against
Rs.5,32,000/- awarded by the learned Tribunal.
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18. 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.6,53,037/- as against
Rs.5,32,000/- awarded by the Tribunal.
c) The enhanced compensation of
Rs.1,21,037/- shall carry interest at the
rate of 6% per annum from the date of
petition till the date of payment.
d) Respondent No.2/Insurance Company shall
deposit the enhanced compensation amount
with accrued interest before the Tribunal
within a period of six weeks from today.
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e) On such deposit, the same shall be released
in favour of the appellant/claimant.
f) Registry to transmit the records forthwith to
the Tribunal.
g) Draw award accordingly.
Sd/-
JUDGE
RKM from para 1 to 7;
RH from para 8 till end;
Ct-an
