Karnataka High Court

Malatesh S/O. Puttappa Bennur vs The Divisional Controller on 29 February, 2024

                                                   -1-
                                                         NC: 2024:KHC-D:4679
                                                           MFA No. 100111 of 2021




                         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. 100111 OF 2021 (MV-I)

                      BETWEEN:

                      MALATESH S/O. PUTTAPPA BENNUR,
                      AGE: 26 YEARS,
                      OCC: HAMAL WORK AT APMC,
                      R/O. TIRLAPUR VILLAGE,
                      TQ: BYADAGI, DIST: HAVERI,
                      PIN CODE-581106.
                                                                        ...APPELLANT
                      (BY SRI. NAVEEN CHATRAD, ADVOCATE)

                      AND:

                      THE DIVISIONAL CONTROLLER,
                      NWKRTC, HAVERI DIVISION,
                      P. B. ROAD, HAVERI,
ROHAN
HADIMANI              DIST: HAVERI.
T
                                                                       ...RESPONDENT
Digitally signed by
ROHAN HADIMANI T
Date: 2024.03.05
                      (BY SRI. I. C. PATIL, ADVOCATE FOR RESPONDENT)
11:10:24 +0530


                             THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1)
                      OF MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THIS MISC.
                      FIRST APPEAL AND ENHANCE THE COMPENSATION AS PRAYED FOR
                      IN CLAIM PETITION BY MODIFYING THE JUDGMENT AD AWARD
                      DATED 20-01-2020 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
                      AND JMFC AND MACT, BYADGI, IN MVC NO.196/2018, IN THE
                      INTEREST OF JUSTICE AND EQUITY.

                            THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
                      COURT DELIVERED THE FOLLOWING:
                                  -2-
                                       NC: 2024:KHC-D:4679
                                          MFA No. 100111 of 2021




                           JUDGMENT

Though this appeal is listed for admission, with the

consent of learned counsel for the parties, it is taken up for

final disposal.

2. This appeal is filed by the appellant/injured seeking

for enhancement of compensation challenging the judgment

and award dated 20.01.2020 passed in MVC No.196/2018 by

the Senior Civil Judge and JMFC & MACT, Byadgi (for short,

'Tribunal').

3. Brief facts leading to filing of this appeal are that on

24.11.2017 at about 8.00 pm, the appellant/injured was

proceeding on his motor cycle bearing registration No.KA-

27/EF-4346 towards Byadgi from their native. When the said

motor cycle came near the land of Shankrappa Halagannanavar

of Shidenur, at that time, KSRTC bus bearing registration

No.KA-22/F-1641 came from opposite side driven by its driver

with rash and negligent manner and dashed to the

appellant/injured. Due to which, the appellant/injured sustained

injuries to all over the body and took treatment at Government

NC: 2024:KHC-D:4679

Hospital, Byadgi. Hence, he filed claim petition seeking

compensation.

4. The respondent/Corporation entered appearance and

filed statement of objections denying the mode of accident,

nature of injuries sustained by the appellant/injured, amount

spent towards the treatment, the income and age of the

appellant/injured. It is also averred that the accident has

occurred due to rash and negligent riding of the motor cycle by

the appellant/injured and not due to the negligence on the part

of driver of offending bus.

5. During the trial before the Tribunal the

appellant/injured examined himself as PW-2. The respondent

has not adduced any evidence, but, got marked Ex.R1 with

consent.

6. The Tribunal after considering the rival contentions

and evidence on record, has awarded total compensation of

Rs.2,31,800/- to the appellant/injured along with the interest

at the rate of 6% per annum from the date of petition till

realization. Being aggrieved by the award of compensation, the

appellant/injured has filed this appeal.

NC: 2024:KHC-D:4679

7. Sri. Naveen Chatrad, learned counsel appearing for

the appellant/injured submits that the appellant/injured was

doing hamali work and earning Rs.18,000/- per month, hence,

the tribunal ought to have assessed the income of injured on

the higher side. He further submits that due to injuries

sustained in the accident, the appellant/injured suffered

physical disability to an extent of 40% as assessed by the

doctor, but the Tribunal assessed at 10% which is contrary to

the evidence on record. The award of compensation on other

heads also on lower side requires interference. Thus, prays for

allowing the appeal.

8. Per contra, the learned counsel for the respondent

supports the impugned judgment and award of the Tribunal

and submits that the appellant has not produced any evidence

to substantiate the income. He further submits that the trial

court has justified in assessing the income as well as the

disability and also justified the award of compensation by the

Tribunal on other heads. Hence, he seeks to dismiss the appeal.

9. Having heard the arguments of the learned counsel

for the appellant/claimant and the learned counsel for the

NC: 2024:KHC-D:4679

appellant/Insurance Company and perused the material

available on record. The following points would arise for

consideration in this appeal is, whether the appellant/claimant

would be entitled for enhanced compensation?

10.Answer to the above point would be in the

'affirmative' for the following reasons:

11. Indisputably, the accident occurred on 24.11.2017,

resulting in grievous injuries to the appellant. The Tribunal has

committed an error in assessing the income of the injured at

Rs.9,000/- per month. Admittedly, the claimant has not

produced any evidence to substantiate the claim for income.

This Court taking note of the notional income chart prepared by

the Karnataka State Legal Services Authority, assesses the

income of the appellant/injured at Rs.10,250/- per month.

The Tribunal has committed an error in assessing the disability

of the injured at 10% which is contrary to the evidence of

doctor PW3, who has issued Disability Certificate at Ex.P12.

PW3-doctor in his evidence has deposed that the claimant has

sustained fracture of lateral condyle of the tibia and lower end

of fibula bones and he has opened that claimant has sustained

NC: 2024:KHC-D:4679

total 40% functional disability to a particular limb. Normally

the Courts consider 1/3rd of disability to a particular limb is to

be considered as disability to the whole body. Hence, this Court

is of the considered view that 1/3rd of 40% would be 13%.

Accordingly, this Court reassesses the disability of the

appellant/claimant at 13% instead of 10% assessed by the

Tribunal. There is also no dispute with regard to age of the

injured as 24 years and appropriate multiplier of 18. Thus, the

claimant would be entitled to compensation on the head of loss

of future earnings due to disability as under:

Rs.10,250 x 12 x 18 x 13% = Rs.2,87,820/-

12. The Tribunal has awarded a sum of Rs.25,000/-

towards pain and suffering which is on the lower side. Taking

note of the injuries sustained by the appellant/claimant,

additional sum of Rs.5,000/- is awarded under the said head.

The claimant has sustained fracture of tibia and fibula, hence,

additionally he would be entitled for another sum of

Rs.10,000/- under the head of loss of amenities. In view of

reassessment of income of the injured, he would be entitled for

sum of Rs.30,750/- under the head of loss of income during

NC: 2024:KHC-D:4679

the laid up period as against Rs.9,000/-. The award of

compensation by the Tribunal under the other heads is just and

proper which is unaltered.

13.Thus, the claimant would be entitled to compensation

on the following heads:

Sl.                     Heads                       Amount
No.
 1     Pain and suffering                         Rs. 30,000/-
 2     Loss of amenities and future               Rs. 30,000/-
       unhappiness
 3     Loss of future earnings on account of     Rs.2,87,820/-
       permanent disability
 4     Medical expenses                          Rs. 5,000/-
 5     Compensation towards loss of income       Rs. 30,750/-
       during laid up period
 6     Incidental expenses                       Rs. 10,000/-
                         Total                   Rs.3,93,570/-

14. For the aforementioned reasons, I pass the following:

ORDER

a) Appeal is allowed in part.

b) The impugned judgment and award passed by the Tribunal to an extent that the appellant/injured would be entitled to total compensation of Rs.3,93,570/- as against Rs. 2,31,800/-awarded by the Tribunal.

c) The enhanced compensation amount shall

carry interest at the rate of 6% per annum

NC: 2024:KHC-D:4679

from the date of petition till the date of

payment.