Karnataka High Court
Fayaz @ Fayazsab D H S/O. Honnursab vs Mr.Chitrakala W/O. C Balasubramaniam on 4 June, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:7398-DB
MFA No. 104541 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.104541 OF 2018 (MV-I)
BETWEEN:
FAYAZ @ FAYAZSAB D.H. S/O. HONNURSAB,
AGE: 38 YEARS, OCC: ASSISTANT,
R/O. MARENAHALLI, TQ:JAGALUR, DIST: DAVANAGERE,
NOW AT C/O. BUDANSAB J.DODMANI
OF CHALAGERI VILLAGE,
TQ: RANEBENNUR, DIST:HAVERI-581115.
- APPELLANT
(BY SRI G.S. HULMANI, ADVOCATE)
AND:
1. MRS. CHITRAKALA W/O. C. BALASUBRAMANIAM,
AGE: MAJOR, OCC: BUSINESS,
R/O. 685, CHINNIMALAI ROAD, PERUNDURAI,
DIST: ERODE, TAMILNADU-638001.
2. THE MANAGER,
NATIONAL INSURANCE CO. LTD.,
Digitally signed by SANGAM CIRCLE, RAILWAY STATION ROAD,
SAROJA HANGARAKI
Location: HIGH
RANEBENNUR, DIST:HAVERI-581110.
COURT OF - RESPONDENTS
KARNATAKA
(BY SRI GANGADHAR S.HOSAKERI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 27.08.2018 PASSED IN MVC
NO.1507/016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, G BASAVARAJA, J., DELIVERED THE
FOLLOWING:
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MFA No. 104541 of 2018
JUDGMENT
Though the appeal is listed for admission, with consent of
both parties, it is taken up for final disposal.
2. The appellant/claimant has preferred this appeal against
the judgment and award passed by the Addl. Senior Civil Judge
& AMACT, Ranebennur (for short 'the Tribunal'), seeking
enhancement of compensation.
3. Parties are referred to as per their ranking before the
Tribunal.
4. The brief relevant facts leading to this appeal are as
under:
The petitioner was working as a Conductor in the KSRTC
bus bearing Reg. No. KA-17-F-1537. On 31.03.2014 at about
2.30 a.m. while the said bus got spoilt was parked on the left
side of the road and the driver of the bus was attending the
repair work under the bus. The petitioner was standing by the
side of the driver by holding a torch. At that time, a lorry
bearing reg. No. TN-33-AW-7949 came with high speed, rash
and negligent manner, endangering human life and dashed to
the bus and caused the accident. As a result, the petitioner
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sustained grievous injuries all over his body. He was shifted to
the hospital for treatment. Petitioner had taken treatment as
inpatient. Petitioner is in need of additional amount towards
future medical expenses. Prior to the accident he was hale and
healthy and he had sufficient source of income. This accident
has made him permanently disabled person, unable to carry
out even his day to day activities. He was the only sole bread
earner of his family. There is loss of income, amenities and
also incurred medical expenses. The accident had occurred due
to the rash and negligent driving of the lorry. First respondent
is the owner and second respondent is the insurer of the
offending vehicle. The driver of the lorry possessed valid and
effective driving licence; policy was in force at the time of
accident. Accordingly, respondents no.1 and 2 are jointly and
severally liable to pay compensation. On all these grounds he
sought to allow claim petition.
5. Notices were duly served to the respondents.
Respondent no.1 remained absent and was placed exparte.
Respondent no.2 had filed statement of objections contending
that petition is bad for non joinder of necessary parties, i.e.,
the driver of the lorry and insurer of the bus. The respondent
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no.2 admits that offending lorry was insured with it from
02.08.2013 to 01.08.2014. It is contended that there is breach
of terms and conditions of the policy as the driver of the
insured vehicle did not possess valid and effective driving
licence. Moreover there is violation of provisions of Sec.
134(C) of the M.V. Act. The respondent no.2 reserved its right
to file additional objections and to take all defences as required
under Sec. 170 of the M.V. Act. On all these grounds sought
for dismissal of the petition.
6. Based on the pleadings, the Tribunal has framed
appropriate issues. To prove the case of the petitioner, the
petitioner adduced his evidence as PW1, got marked 75
documents as Exs.P.1 to P.75. On closure of petitioner's
evidence, two witnesses were examined as RW1 and RW2. 52
documents were marked as Exs.R.1 to R.52. Having heard the
arguments and perusing case on its merit, the Tribunal has
partly allowed the claim petition and awarded compensation of
Rs.3,05,720/- with interest at 7.5% p.a. from the date of
petition till its realization. Being aggrieved by the judgment
and award, the appellant has filed this appeal for enhancement
of compensation.
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7. Learned counsel for the appellant would submit that the
judgment and award passed by the Tribunal is not sound and
the compensation awarded by the Tribunal is on the very lower
side. He further admits that due to accidental injuries caused,
the petitioner is unable to carry out any avocation throughout
his life. This aspect has not been considered by the Tribunal
while awarding compensation. The Tribunal has not considered
Ex.P.4-wound certificate which clearly reveals that the
appellant has sustained Communited # of Right Tibial
Plafond bone, # of medial mallelous bone, communited
subtrochanteric # of femur bone, mass # of C2 vertebra,
# of 6th and 7th ribs and other grievous injuries to all
over the body. Immediately after the accident, he was taken
to Government hospital, Tumkur and then took further
treatment in B.G.S. Hospital at Bengaluru and also at other
private hospitals. Petitioner took treatment for more than one
year and spent more than Rs.15 lakhs towards medical and
other expenses and Rs.8 lakhs towards future medical
expenses. All these aspects have not been considered by the
Tribunal while awarding compensation. The Tribunal also not
considered Ex.P.8, 9, 10 to 17, 19 to 35, 36 to 38, 40, 41,
discharge cards and case sheets and awarded meager
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compensation. He further submits that the Tribunal has not
considered Ex.P.18-salary slip of the appellant for the month of
February, 2014 which reveals that appellant was drawing salary
of Rs.34,875.72 per month including other allowances shown,
not considered by the Tribunal. While calculating the loss of
earning capacity, the Tribunal has taken only Rs.6,600/- as
income under the head of over-time work done and calculated
loss of earning capacity amounting to Rs.2,25,720/- and
awarded the same which is on very lower side. The Tribunal
has failed to consider the fact that due to the injuries sustained
by the appellant, he is unable to carry out his Driver/
Conductor profession as he was doing earlier to the accident.
The Tribunal has failed to consider the admission given by
RW2-employer of the appellant who has stated that the
appellant is unable to do day-to-day manual type or hard
works, as such he has been deputed to table work until further
orders. The Tribunal has failed to consider Ex.P.69 which
reveals that the order passed by the appellant/employer stating
that Medical Board has assessed 55% disability to the appellant
and on the said basis he has been deputed to other supervisory
work. The Tribunal has not considered future prospects of the
appellant while awarding compensation. The Tribunal has
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awarded very meager compensation on all other heads. On all
these grounds sought for enhancement of compensation.
8. Learned counsel for the respondent-insurance company
would submit that the Tribunal has appreciated the evidence in
accordance with law and facts which needs no interference and
sought for dismissal of the appeal.
9. Having heard arguments of both sides and on perusal of
the appeal papers including the original records, the following
points would arise for our consideration:
1) Whether the appellant has made out grounds for
enhancement of compensation sought for?
2) What order or award?
10. Our answers to the above points are:
Point No. 1 : Partly in the affirmative
Point No. 2 : As per final order
11. Point No.1: With regard to the award of compensation
towards future earning capacity on account of permanent
disability, the appellants have adduced evidence of PW1 and 2
and produced documents. PW2-Dr.Umanath R. Ullal has
deposed in his evidence that he has assessed disability to an
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extent of 95% towards right leg, neck, chest, left thigh and left
leg foot. The Tribunal has observed that the extent of disability
to an extent of 95% is on the excessive side. PW2 has not
given any treatment to the injured and the said disability is to
the specific parts of the body and when it compared to the
whole body, the said disability will definitely gets reduced.
Accordingly, the Tribunal has rightly assessed disability of the
petitioner to an extent of 19%.
12. PW1 has deposed that he was Driver-Cum-Conductor at
the time of accident, he was paid salary of more than
Rs.30,000/- per month, he is unable to move around and carry
out his day to day activities. Ex.P.18-salary certificate which
pertains to the month of February, 2014, which reveals that the
cross salary was Rs.34,875.72. The counsel for respondent has
got summoned the pay-slip of the petitioner as per Ex.P.4 to
P.52. It reveals that during the actual laid up period, the
petitioner has received his salary. The gross salary of the
petitioner included the overtime amount also. For the month of
Marcy, 2014, the overtime salary earned by the petitioner was
Rs.6,600.63, for the month of February, 2014, the overtime
was to an extent of Rs.8,931.80. It reveals that in the month
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of April, 2014, after the accident also the petitioner has earned
overtime amount of Rs.1,989.36. In the subsequent pay slips,
no amount is received by the petitioner towards overtime work.
Accordingly, the Tribunal has rightly assessed that petitioner
has incurred loss of overtime earnings due to the accident and
hence he is entitled for loss of future earning capacity.
13. Considering the oral and documentary evidence placed by
the petitioner, the Tribunal has considered the age of the
petitioner as 38 years (as the date of birth of the petitioner was
01.06.1976) and rightly applied multiplier '15' in view of the
ratio laid down by the Hon'ble Apex Court in Sarla Verma &
Another Vs. Delhi Transport Corporation & Another1. The
claimant is not removed or terminated from service. He is
assigned with light work with the same salary. There is no
reduction in salary. The petitioner is deprived of overtime
allowance. The Tribunal assessed overtime allowance of the
petitioner at Rs.6,600/- per month. Thus, it awarded
compensation of Rs.2,25,720/- (Rs.6,600/- x 12 x 19 x 15 /
100), which needs no interference.
AIR 2009 SC 3104
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14. With regard to award of compensation towards pain and
suffering, food & nourishment charges, attendant charges, loss
of amenities & enjoyment of life, the Tribunal has awarded
Rs.40,000/-, Rs.30,000/- and Rs.10,000/- respectively which is
too low and meager. Compensation on pain and suffering
enhanced to Rs.75,000/- from Rs.40,000/-; towards diet, food
and nourishment charges, attendant charges and conveyance
to Rs.40,000/- from Rs.30,000/-; and towards loss of amenities
and enjoyment of life to Rs.50,000/- from Rs.10,000/- as
awarded by the Tribunal.
15. We have examined the entire evidence placed by the
petitioner. We have also examined Ex.P.4-wound certificate,
P.7-Disability certificate, P.8 & P.9-MRI report, P.19 to P.35-X
Rays, P.36 to P.38-MRI films, P.39-MLC Copy, P.40-disability
card, P.41-case sheet, P.42 and P.43-MRI films, P.44 to P.52-
bills, P.53 and P.54-bills, P.55 to P.62-lab reports, P.68-CT scan
report, P.69 order copy issued by the KSRTC for kind of leaves,
P.70 to P.75-order copy issued by the KSRTC.
16. On re-examination of these materials placed before the
Court and considering the nature and gravity of injuries
sustained by the petitioner and disability certificate issued by
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the concerned Doctor-PW2 we are of the view that it is just and
proper to modify the award as under:
1. Towards pain and suffering 75,000.00
2. Towards diet, food and nourishment 40,000.00
charges, attendant charges and
conveyance
3. Loss of future income (as awarded by 2,25,720.00
the Tribunal)
4. Loss of amenities and enjoyment 50,000.00
Total 3,90,720.00
For the aforesaid reasons, the claimant is entitled for
compensation of Rs.3,90,720/- as against Rs.3,05,720/-.
Accordingly, we answer the above point 'partly in the
affirmative'.
17. In the result, proceed to pass the following order.
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and awarded passed by the
Tribunal is modified to an extent that the claimant
would be entitled to total compensation of
Rs.3,90,720/- as against Rs.3,05,720/- awarded by
the Tribunal.
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c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the date of
petition till date of payment;
d) Respondent shall deposit the entire compensation
amount along with accrued interest before the Tribunal
within a period of six weeks from the date of receipt of
certified copy of this judgment.
e) On such deposit, the said amount shall be apportioned
in favour of the claimant as per the award of the
Tribunal.
f) Registry to transmit the records to the tribunal
forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
BVV
