Karnataka High Court
Mahantesh vs Santosh And Anr on 5 June, 2024
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NC: 2024:KHC-K:3597
MFA No. 200236 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO.200236 OF 2024 (MV-I)
BETWEEN:
MAHANTESH S/O KALLAPPA DONAGI
AGE 58 YEARS, OCC: BUSINESS,
R/O. SAMSKRUTI COLONY,
VIJAYAPURA-586101.
...APPELLANT
(BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. SANTOSH S/O PANCHAYYA HIREMATH
AGE: 44 YEARS, OCC: BUSINESS,
R/O SADASHIV NAGAR, NANDI TEMPLE,
VIJAYAPURA-586101.
Digitally signed
by KHAJAAMEEN 2. THE MANAGER LEGAL/CLAIMS
L MALAGHAN BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
Location: HIGH LIMITED, MADIWALE ARCADE CLUB ROAD,
COURT OF
KARNATAKA BELGAUM-590001.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
VIDE ORDER DATED 01.04.2024 NOTICE TO R1 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO ALLOW THIS APPEAL AND ENHANCE THE
COMPENSATION AS CLAIMED IN THE CLAIM PETITION BY
MODIFYING THE JUDGMENT AND AWARD DATED 15.12.2022
PASSED BY THE COURT OF IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MEMBER MACT-XIII, AT VIJAYAPURA IN
M.V.C NO.423/2019.
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MFA No. 200236 of 2024
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the claimant in MVC.No.423/2019
on the file of the MACT-XIII, Vijayapura (hereinafter for
short referred to as 'Tribunal') against judgment and
award passed in the said case dated 15.12.2022, claiming
for enhancement of compensation.
Though this appeal is listed for orders, with the
consent of both the learned counsel, it is taken up for final
disposal.
2. The parties will be referred as per their ranks
before the Tribunal for sake of convenience.
3. Brief facts of the case of the claimant are that
on 21.12.2018 at 6:30 p.m. he met with an accident near
Samskruti colony cross at Vijayapura due to rash and
negligent driving of auto rickshaw bearing Reg.No.KA-
28/C-7294 by its driver. As a result of which, he sustained
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fracture of left tibia and fibula along with other injuries
mentioned in Ex.P17. He had spent more than
Rs.2,00,000/- towards medical and incidental expenses.
He was aged about 54 years and doing business and
earning Rs.15,000/- per month. Due to injuries sustained
in the accident, he has been suffering from permanent
disability, which is affecting his earning capacity. With
these reasons, prayed to award compensation of
Rs.10,00,000/-.
4. Respondent No.2 disputed the contentions of
the claimant and prayed for dismissal of the same.
5. From the rival contentions of both the parties,
the Tribunal had framed the necessary issues for its
determination.
6. The claimant in support of his case examined
PWs.1 to 3 and got marked Exs.P1 to P18. Respondent
examined RW.1 and got marked Ex.R1 and 2.
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7. The Tribunal after hearing both the parties and
appreciating the evidence available on record had awarded
the following amount of compensation:-
Sl. Heads of Compensation Amount
No.
1. Towards Loss of Future Income Rs.1,52,280/-
2. Towards Medical Expenses Rs.1,20,591/-
3. Towards Pain and Suffering Rs.20,000/-
4. Towards Loss of Amenities Rs.10,000/-
5. Towards Attendant Charges Rs.2,000/-
6. Towards Loss of Income during Rs.10,000/-
Hospitalization
7. Towards Conveyance, Rs.15,000/-
Nourishment, Food and Misc.
Charges
8. Towards Future medical expenses Rs.40,000/-
Total Rs.3,69,871/-
8. I have heard the arguments of learned counsel
for both the parties.
9. The learned counsel for the claimant/appellant
submits that age and disability of the claimant are not
properly considered by the Tribunal. The amount of
compensation awarded under other heads are also on the
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lower side. Therefore, prayed for enhancement of
compensation.
10. Learned counsel for respondent No.2 supported
the impugned judgment and submits that said judgment
does not call for any interference by this Court.
11. The Tribunal assessed the notional income of
claimant on the basis of chart prepared by the KSLSA and
held that he was earning Rs.11,750/- per month, it does
not call for any interference.
12. The claimant examined PWs.2 and 3 to prove
his disability. According to evidence of PW.2 given in the
disability certificate that claimant has been suffering from
permanent disability to an extent of 35% to the lower limb
and PW.3 had given Ex.P17. The Tribunal assessed
permanent disability at 12% which is on the lower side.
Considering the age and injuries sustained by him
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permanent disability to the whole body affecting earning
capacity of the claimant can be considered as 15%.
13. The claimant contends that his age was 54
years at the time of accident. However, his name was
mentioned different in the different documents and hence,
the Tribunal on the basis of the Ex.P17/wound certificate,
accepted the age of the claimant as 56 years which is
incorrect. The said contention is not acceptable. It
appears, as stated by the claimant, the treated doctor had
mentioned age of the claimant as 56 years in Ex.P17. Age
mentioned in the prosecution papers such as FIR, charge-
sheet etc might be on the basis of the guess work of
concerned Investigating Officers. Hence, it is not
acceptable. On the basis of above factors, amount of
compensation under the head loss of future earning
capacity due to permanent disability is assessed.
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14. The amount of compensation of awarded by the
Tribunal under the head pain and suffering; loss of
amenities; attendant charges; loss of income during
hospitalization/laid up period, conveyance, nourishment,
food and misc. charges etc are on the lower side, which
needs to be enhanced.
15. Considering the injuries, period of treatment
taken and disability suffered by the claimant, the following
amount of compensation is awarded under following
heads.
Sl. Heads Amount Amount
No awarded by awarded by
the Tribunal this court
1. Loss of future earning Rs.1,52,280/- Rs.1,90,350/-
capacity due to permanent
disability( 11,750x12x9x15%)
2. Pain and suffering Rs.20,000/- Rs.40,000/-
3. Loss of amenities Rs.10,000/- Rs.40,000/-
4. Attendant charges, Rs.2,000/- Rs.30,000/-
food, nourishment and misc. Rs.15,000/-
charges
5. Loss of income during laid up Rs.10,000/- Rs.35,250/-
period
(11750 x 3)
6. Future medical expenses Rs.40,000/- Rs.40,000/-
7. Medical expenses Rs.1,20,591/- Rs.1,20,591/-
Total Rs.3,69,871/- Rs.4,96,191/-
Enhancement Rs.1,26,320/-
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16. The claimant is entitled for enhancement of
Rs.1,26,320/-. The claimant is also entitled for interest on
the said amount at the rate of 6% per annum.
Accordingly, above question is answered and I pass the
following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award passed by
the MACT-XIII, Vijayapura, in
MVC.No.423/2019 dated 15.12.2022 is
modified.
iii. The claimant is entitled for total compensation
of Rs.4,96,191/- as against Rs.3,69,871/-
awarded by the Tribunal.
a) The claimant is entitled for enhancement
of compensation of Rs.1,26,320/-with
interest on the enhanced amount of
compensation at the rate of 6% per
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annum from the date of petition till its
realization excluding the period of delay
of 280 days in filing the appeal.
iv. The respondent No.2 - insurance company
shall deposit the said amount with interest
within a period of six weeks from the date of
receipt of copy of this order.
v. The order pertaining to deposit and release,
passed by the Tribunal is not disturbed.
Sd/-
JUDGE
SDU
CT:PK
