Karnataka High Court
Syed Farez vs Manu B E on 2 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
-1-
NC: 2024:KHC:24632
MFA No. 5390 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5390 OF 2021 (MV-I)
BETWEEN:
SYED FAREZ
S/O SYED AKHIL,
AGED ABOUT 23 YEARS,
R/O VIJAYANAGAR EXTENSION,
NEAR CANARA BANK, GUDDENAHALLY ROAD,
HASSAN - 573 201.
...APPELLANT
(BY SMT. KAVITHA H C., ADVOCATE)
AND:
1. MANU B E
S/O ESHWARA M L,
DOOR NO.16,
BEHIND PANCHAYATH OFFICE,
BYRAPURA, ALUR TALUK,
HASSAN DISTRICT - 573 201.
2. THE MANAGER
NATIONAL INSURANCE COMPANY LTD.,
Digitally signed by
VEDAVATHI A K MANJUNATH COMPLEX,
Location: High OLD BUS STAND ROAD, HASSAN - 573 201.
Court of Karnataka
...RESPONDENTS
(BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R2;
VIDE ORDER DATED:27/2/24 NOTICE TO R1 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.21.04.2021 PASSED IN MVC NO.137/2019 ON
THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
-2-
NC: 2024:KHC:24632
MFA No. 5390 of 2021
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant under Section
173(1) of Motor Vehicles Act, 1988 (for short hereinafter
referred to as MV Act) challenging the judgment and
award dated 21.04.2021 passed in MVC No.137/2019
passed by the II ADDL. District and Sessions Judge,
Additional MACT, Hassan, (for short hereinafter referred to
as 'Tribunal') for seeking enhancement of compensation.
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent No.2-
Insurance Company. Issuing notice to respondent No.1 is
hereby dispensed with.
3. The appellant was petitioner and the
respondents were respondents before the Trial Court. The
status of the parties before the Tribunal is retained for the
sake of convenience.
NC: 2024:KHC:24632
4. The case of the petitioner is that the petitioner
filed petition under Section 166 of Motor Vehicles Act (for
short 'M.V. Act') claiming compensation of Rs.10 lakhs
under various heads. It is alleged that on 21.10.2018,
when the petitioner was proceeding in his father's motor
bike bearing Reg.No.KA.18H-5848 after completing his
work, he was returning to his house along with his friend
Irshaad who was pillion rider. At that time, at about 12.30
p.m., opposite to APMC Gate, a jeep bearing Reg.No.KA-
01-ML-1557 came from Thanneruhalla in a rash and
negligent manner without giving signal and took U turn
and dashed to the vehicle of the petitioner. Due to the
accident, the petitioner suffered serious crush injury on his
right leg and was shifted to the hospital. The petitioner
was treated as inpatient for 43 days and underwent
various surgeries.
5. Learned counsel for the petitioner has contended
that the petitioner was earning Rs.30000/- p.m. by doing
bar bending work and due to the injury, there is total
NC: 2024:KHC:24632
disability . Hence, prayed for the enhancement of
compensation on various heads.
6. On receipt of the summons, the respondent
No.1/owner of the vehicle appeared before the court
through counsel, but not filed any statement of objection
or contested the matter. The respondent No.2/Insurance
Company, appeared and filed a statement of objection by
denying the rash and negligent driving and also denied
age, occupation and income of the petitioner as false.
Also taken the contention that the driver of the jeep do not
have any driving license for driving the vehicle. Hence,
prayed for dismissing the petition.
7. On the basis of pleadings, the tribunal framed
the following issues for consideration:
ISSUES:
1) Whether the Petitioner proves
that, on 21.10.2018 at about 12.30
p.m. in front of APMC Gate, Hassan
Town, driver drove the Jeep
bearing Reg.No.K.A.01-ML-1557 in
rash and negligent manner and
caused accident?
NC: 2024:KHC:24632
2) Whether the petitioner is
entitled for compensation as ought
for?
3) What Order or Award?
8. To prove the case, the petitioner himself was
examined as P.W.1. and also examined another witness,
the Doctor as PW2. They got marked documents from
Exs.P1 to P18. The respondents not lead any evidence.
After hearing the arguments, the tribunal answered issue
No.1 in affirmative and issue No.2 in the partly affirmative.
Accordingly, granted compensation of Rs.9,46,650-00/-,
which is as under;
Pain and sufferings 75,000-00
Medical expenses 4,91,050-00
Diet, food, Nourishment, 35,000-00
Conveyance and other
expenditures
Loss of Income during laid 54,000-00
up period
Loss of Future Income 2,91,600-00
Total 9,46,650-00
NC: 2024:KHC:24632
9. Being aggrieved with the quantum of
compensation awarded by the tribunal, the claimant is
before this court.
10. Learned counsel for the petitioner has
contended the petitioner was treated in the hospital for
more than one and half months and he has further taken
treatment in the hospital to the crushed injury on the leg.
The doctor has given 45% of the disability to the right
lower limb and he is bar bender and his leg is totally
disabled to move. He is a manual worker and 100%
disability has to be considered. The tribunal taken only
15% disability is not correct. The tribunal considered
income of Rs.9000/- per month, which is not correct. The
petitioner claimed Rs.30,000/- per month. As per the
notional income recognized by the Karnataka State Legal
Services Authority, an income of Rs.12,500/- p.m., is to
be considered. Learned counsel further contended there is
no loss of amenities granted. Even the other expenditure
future medical expenses are all not awarded by the
NC: 2024:KHC:24632
tribunal. Therefore, prayed for enhancing the
compensation.
11. Per contra, learned counsel for the
respondent supported the judgment of the tribunal and
contended that the doctor given evidence stating that 45%
disability to the right limb is considered 15%, it comes to
one third of the whole body, rightly taken by the tribunal.
However, he has agreed for enhancing income from
Rs.9000/- p.m., to Rs.12,500/- p.m., as notional income
as considered in the Karnataka State Legal Services
Authority. Regarding other compensation in other heads
are not required to be interfered. Hence, prayed for
dismissing the petition.
12. Having heard the arguments, perused the
records, the point that arises for my consideration is
Whether the appellant is entitled for
enhancement of compensation on the
ground of disability, as well as other
compensation on other heads, if so, what
extent?
NC: 2024:KHC:24632
13. The accident in question dated 21-10-2018
occurred at Hassan town due to negligent driving of the
Jeep driver was not in dispute. The petitioner sustained
crushed injury on his right leg due to the accident and as
per Wound Certificate at Ex.P.8 and discharge summary,
which reveals the petitioner has sustained crushed injury
on tibia bones, which were fractured and he has
undergone surgeries for fixing the legs etc. The tribunal
considered income of the petitioner as only Rs.9000/-
p.m.. Though the petitioner claimed he is a bar bender
earning Rs.30,000/- p.m., etc., but he has not adduced
any evidence of his employer or engineer to show he is
working as bar bender. Therefore, there is no option for
this court to consider the notional income. As per the
notional income recognized by the Karnataka State Legal
Services Authority, an income of Rs.12,500/- per month,
to be considered for the accidents occurred during 2018.
Therefore, income should be considered as Rs.12,500/-
per month, instead of Rs.9,000/- considered by the
tribunal.
NC: 2024:KHC:24632
14. As regards to the pain and suffering, the tribunal
awarded Rs.75,000/- the petitioner was hospitalized for 43
days and therefore Rs.75,000/- was awarded towards pain
and suffering, is not insufficient as contended by the
learned counsel for the petitioner.
15. As regards to the medical expenses Rs
4,91,050/- is awarded, which is based upon the medical
record. Hence, the same is just and proper.
16. The food, nourishment, conveyance charges
awarded for Rs.35,000/- by the tribunal, whereas the
petitioner admitted in the hospital for 43 days. The
petitioner could have come to the hospital for review and
further treatment as outpatient. Such being the case,
awarding Rs.35,000/- is very meager. Therefore, I
propose to enhance to Rs.50,000/- towards food
nourishment and conveyance charges.
- 10 -
NC: 2024:KHC:24632
Loss of laid up period was paid for 6 months and the
same is retained. Hence, after the revised income of
Rs.12500 x 6 months = Rs.75000/-, will be the amount
towards loss of laid up period.
17. The petitioner has sustained grievous crushed
injury. The photographs reveals the same. Even after the
treatment, the rings and ankles were fixed on his leg and
he cannot sit, squat, stand and walk for long time as per
the evidence of PW2. Such being the case, the petitioner
definitely has been suffering from loss of future amenities
and the appellant/petitioner also is unmarried person.
Such being the case, atleast it should be awarded for
Rs.50,000/- towards loss of future amenities. The
doctor also stated implant has to be removed over a
period of time and he requires another one and half lakhs.
But the tribunal awarded nothing. Therefore, considering
facts and circumstances, I propose to award Rs.1 lakh
towards future medical expenses.
- 11 -
NC: 2024:KHC:24632
18. As regards to the loss of future income for
disability, the doctor has opined 45% to the lower right
limb, suffering by the petitioner. To prove the disability,
the petitioner has examined PW2 doctor Dr.Abdul Basheer,
Orthopedic surgeon, he has stated that the right knee and
ankle movements are restricted and he is not able to lift
weight or walk. He is not able to walk for long distance
and not able to squat and the fracture also not united. As
per the evidence of the doctor, he has assessed the
disability towards right lower limb and regarding mobility
he has considered 13% and the extra points i.e, restriction
of movements, he has considered 6% and also the
climbing, standing, squatting, sitting across, kneeling,
taking turns are considered 26% and totally is considered
45% to the lower limb.
19. Learned counsel for the appellant has contended
looking to the evidence of doctor, the petitioner is a
manual worker bar bender and due to the disability he
cannot do the same work and he cannot stand. Therefore,
- 12 -
NC: 2024:KHC:24632
there shall be functional disability of 100%. Therefore,
prayed for granting 45% as disability and 40% towards
future prospectus. On perusal of the records, though the
doctor given evidence, there is no disability produced by
him. The evidence is given by the doctor based upon the
medical records. The photographs as well as the X-ray film
reveals, the steel walls/nails still in situ and the crush
injury to the bones were not properly united as per the x-
ray dated 21.10.2018 and 24.10.2018 and also
10.11.2018, which reveals bones were not properly united
and still he is not able to stand for long time or able to
walk properly and cannot do work as he was working
before.
20. Learned counsel for the respondent contented
the doctor has not stated anything about him being not
able to work or can work, but on perusal of the evidence
on record, the documents prima facie reveals crushed
injury is still not united. The petitioner is only 21 years
age. Whether he is working manual or not working, but
- 13 -
NC: 2024:KHC:24632
his disability is to be considered properly and no amount
of money can be compensated for a leg, if it is lost. Such
being the case, I am of the view taking 15% disability
1/3rd cannot be considered in this case. Therefore, I
propose 40% towards the disability of whole body instead
of 40% of future prospectus or 15% of disability. Hence,
the Loss of future earning capacity, if the income of the
injured is considered as Rs.12,500/- multiplied into 12
months and further multiplied to 18 multiplier x 40% of
disability is considered which is as under;
Rs.12,500/- x 12 x 18 x 40% = Rs.10,80,000/- is
granted towards loss of future earning capacity.
21. The components awarded by this court are as
follows,
- 14 -
NC: 2024:KHC:24632
Pain and sufferings 75,000-00
Medical expenses 4,91,050-00
Diet, food, Nourishment, 50,000-00
Conveyance and other
expenditures
Loss of Income during laid up 75,000-00
period
Future Medical expenses 1,00,000-00
Loss of future amenities 50,000-00
Loss of Future Income 10,80,000-00
Total 19,21,050-00
Rounded to 19,21,000-00
22. Accordingly, I pass the following:
ORDER
i. The appeal is allowed in part.
ii. The judgment of the tribunal dated 21.04.2021
passed in MVC No.137/2019 passed by the II ADDL.
District and Sessions Judge, Additional MACT,
Hassan, is hereby modified.
- 15 -
NC: 2024:KHC:24632
iii. The claimant is entitled to a total compensation for a
sum of Rs.19,21,000/- along with interest of 6%
p.a., instead of Rs.9,46,650/- granted by the
tribunal.
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
6% per annum, excluding the future medical
expenses, within a period of two months from the
date of receipt of a copy of this order.
v. Out of the total amount, Rs.10 lakhs shall be
deposited in the Fixed Deposit in the name of the
petitioner for 5 years in any of the Nationalized Bank
and the remaining amount shall be released to the
petitioner.
- 16 -
NC: 2024:KHC:24632
vi. Registry is directed to return the Trial Court records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay;
and
vii. Draw award accordingly.
Sd/-
JUDGE
AKV
CT:SK
