Karnataka High Court

Shivu S/O Budappa vs Siddayya And Anr on 3 July, 2024

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                                                     NC: 2024:KHC-K:4554
                                                      MFA No. 202146 of 2018




                             IN THE HIGH COURT OF KARNATAKA,
                                     KALABURAGI BENCH

                           DATED THIS THE 3 RD DAY OF JULY, 2024

                                            BEFORE
                          THE HON'BLE MR. JUSTICE UMESH M ADIGA
                        MISC. FIRST APPEAL NO.202146 OF 2018 (MV-I)
                   BETWEEN:
                   SHIVU S/O BUDAPPA
                   AGE: 26 YEARS, OCC: MASON (NOW NIL),
                   R/O. NEAR RAMASWAMY HOUSE,
                   HARIJANWADA, IQBAL NAGAR,
                   RAICHUR-584101.
                                                                  ...APPELLANT
                   (BY SRI BASAVARAJ R. MATH, ADVOCATE)
                   AND:
                   1.    SIDDAYYA S/O GANGAYYA
                         AGE: 46 YEARS, OCC: DRIVER OF NEKSRTC,
                         R/O. MASKI, TQ. LINGASUGUR,
                         DIST. RAICHUR-584122.
                   2.    THE DIVISIONAL CONTROLLER
Digitally signed
                         NWKSRTC BUS, GADAG DEPOT,
by KHAJAAMEEN            GADAG-582103.
L MALAGHAN
                                                             ...RESPONDENTS
Location: HIGH
COURT OF
KARNATAKA          (BY SRI SUDHIRSINGH R. VIJAPUR, ADVOCATE FOR R2;
                   NOTICE TO R1 DISPENSED WITH V/O DATED: 12.12.2018)
                        THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V
                   ACT, PRAYING TO CALL FOR RECORDS AND MODIFY THE
                   IMPUGNED JUDGMENT AND AWARD DATED 24.11.2016
                   PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS
                   JUDGE AT RAICHUR IN MVC.NO.259/2014.

                        THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
                   JUDGMENT     ON    24.06.2024,  COMING    ON    FOR
                   'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
                   DELIVERED THE FOLLOWING:
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                                       NC: 2024:KHC-K:4554
                                        MFA No. 202146 of 2018




                         JUDGMENT

This appeal is by the claimant in MVC.No.259/2014

on the file of the I Additional District and Sessions Judge,

at Raichur, (hereinafter for short referred to as 'Tribunal')

against judgment and award passed in the said case dated

24.11.2016, claiming for enhancement of compensation.

02. The parties will be referred to as per their ranks

before the Tribunal for sake of convenience.

03. The brief facts of the case are that on

19.01.2014 at about 07.00 a.m. the claimant met with

accident near Basaweshwar Circle, at Raichur, due to rash

and negligent driving of Bus belonging to the corporation

(respondent No.2) bearing Reg.No.KA-26-F-816 by its

driver. As a result of which, the claimant sustained

grievous injuries. He was admitted in the Hospital for

about 15 days and had spent Rs.2,00,000/- towards

medical expenses.

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04. It is further case of the claimant that he was

aged about 22 years at the time of accident. He was doing

mason work and earning Rs.10,000/- per month. Due to

injuries sustained in the accident, he has been suffering

from permanent disability. Hence, prayed to award the

compensation.

05. The respondent No.2 in the written statement

denied the contentions of the claim petition. It has further

stated that the accident had taken place due to negligence

of the claimant and prayed for dismissal of the case.

06. From the rival contentions of both the parties,

the Tribunal had framed the necessary issues for its

determination.

07. The claimant to prove his case had examined

PW.1 and PW.2 got marked Ex.P.1 to 9. The respondent

No.2 - corporation examined its official as RW.1, but no

documents were marked.

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08. The Tribunal after hearing both the parties and

appreciating the evidence available on record awarded the

following amount of compensation:-

Sl.   Heads of Compensation                  Amount

No.                                           (in Rs.)

01.   Pain and suffering                     30,000/-

02.   Medical Expenses                      1,19,845/-

03.   Attendant charges                      10,000/-

04.   Conveyance     and   other   Misc.     10,000/-
      Expenses

      Total                                 1,69,845/-

09. I have heard the arguments of learned counsel

for the claimant and the respondent No.2 - corporation.

10. The learned counsel for the claimant submits

that the Tribunal has not awarded the compensation under

the head of loss of future earning capacity due to

permanent disability. The claimant has examined PW.2,

who had issued the disability certificate. The Tribunal in

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the impugned judgment observed that the claimant did

not examine the author of the disability certificate.

Therefore, no amount of compensation is awarded under

the said head. The said fact is incorrect. The Tribunal has

not considered the evidence of PW.2. Hence, just and

reasonable compensation was not awarded. The amount

of compensation awarded under other heads are also on

lower side. The Tribunal has taken the income of the

claimant is on lower side. Therefore, prayed to enhance

the amount of compensation.

11. The learned counsel for the corporation

supported the impugned judgment and prayed to dismiss

the appeal.

12. The following question arises for my

consideration:-

"Whether the claimant is entitled for

enhancement of compensation.?"

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13. The fact of accident and the injuries sustained

by the claimant due to the vehicle accident are not

seriously disputed in this appeal. The corporation did not

file any appeal against the impugned judgment. Hence,

there is no need to interference in the said findings.

14. The claimant has sustained the following

injuries as per Ex.P.6.

a. Multiple abrasions over the occipital region.

b. Multiple CLW over occipital region.

     c.    Tear of the left ear pinna

     d.    Fracture upper one third of left femur with

           displaced fracture ends.

15. The medical records reveal that the claimant

was admitted in the hospital as inpatient. The receipts

produced by the claimant were considered by the Tribunal

and awarded an amount of Rs.1,19,845/ - towards

medical expenses. It is based on records, therefore, no

need for interference.

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16. The claimant examined author of Ex.P.6 as

PW.2. In his evidence he has stated about the disability /

difficulties of the claimant and assessed the disability.

According to his evidence, the claimant has been suffering

from permanent disability to the extent of 35% to the

whole body. The said disability assessed by PW.2 is on

much higher side. Therefore, considering the nature of

work the claimant has to do and the injuries sustained by

him, the permanent disability is taken as 15% to the

whole body.

17. The claimant was aged about 22 years as per

the claim petition and the medical records. Therefore, the

age of the claimant is taken as 22 years. The suitable

multiplier applicable is 15.

18. The claimant has contended that he was mason

and earning Rs.10,000/- per month. There is no reliable

evidence to accept the same. The Tribunal did not

awarded the compensation under the head of loss of

future earning capacity due to permanent disability, on the

ground that the claimant had not examined the doctor who

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issued Ex.P.2, which is erroneous. Therefore, it has not

assessed the income of the claimant. The notional income

of the claimant would be assessed as per the schedule

prepared by the Karnataka Legal Services Authority.

According to the same, the income of the claimant is taken

as Rs.7,500/- per month. On the basis of the above said

figures, loss of future earning capacity due to permanent

disability is calculated.

19. The Tribunal has not awarded the compensation

under the head of loss of income during the laid up period.

Due to the injuries sustained by him, at least for a period

of 03 months, he might not be in a position to work and

lost his income. The Tribunal has also not awarded the

compensation towards loss of amenities. Looking to the

infirmities and disabilities as stated by PW.2 in Ex.P.6, the

claimant is entitled for some amount of compensation

towards loss of amenities and future unhappiness. The

amount of compensation awarded under the other heads

except the medical expenses, are also on lower side, which

needs to be enhanced. Accordingly, the following amount

of compensation is awarded.


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Sl.   Heads of Compensation                   Amount

No.                                           (in Rs.)

01.   Pain and suffering                      50,000/-

02.   Medical expenses                       1,19,845/-

03.   Special diet, attendant charges,        30,000/-
      conveyance and Misc. expenses

04.   Loss of future earning capacity        2,43,000/-
      due to permanent disability.

      (Rs.7,500 x 12 x 18 x15%)

05.   Loss of amenities                       40,000/-

      Total                                 4,82,845/-

20. The claimant is entitled for enhancement of

compensation of Rs.3,13,000/-. The claimant is also

entitled for interest at the rate of 6% on the enhanced

amount of compensation from the date of claim petition till

the date of its realization excluding the delayed period of

588 days in filing the appeal.

21. For the above said discussion, I answered the

above said question partly in the affirmative and pass the

following;-

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ORDER