Karnataka High Court

Bhimashankar vs Kashinath And Ors on 5 June, 2024

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                                                    NC: 2024:KHC-K:3611
                                                     MFA No. 203787 of 2023




                            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.203787 OF 2023 (MV-I)
                   BETWEEN:

                   BHIMASHANKAR S/O NARAYAN,
                   AGE: 25 YEARS,
                   OCC: VEGETABLE BUSINESS, NOW NIL,
                   R/O KAMALANAGAR TAJ SULTANPUR,
                   DIST. KALABURAGI,
                   NOW AT R/O KALLUR VILLAGE,
                   TQ. CHINCHOLI,
                   DIST. KALABURAGI-585101.
                                                                ...APPELLANT
                   (BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)

                   AND:
Digitally signed
by KHAJAAMEEN      1.   KASHINATH S/O GUNDAPPA
L MALAGHAN              AGE: MAJOR,
Location: HIGH          OCC: ASST. TEACHER OWNER OF,
COURT OF
KARNATAKA               HERO MOTOR CYCLE BEARING,
                        REG. NO.KA-32-EL-2212,
                        R/O H.NO.6/48/1, AINOLI VILLAGE,
                        TQ. AND DIST. KALABURAGI-585101.

                   2.   GUNDAPPA S/O KASHIRAYA PUJARI,
                        AGE: MAJOR, OCC: NOT KNOWN,
                        OWNER OF HERO MOTORCYCLE BEARING
                        REG.NO.KA-32 EM-8288,
                        R/O H.NO.119, SULTANPUR ROAD,
                        KAMALANAGAR,
                        KALABURAGI-585101.
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                                  NC: 2024:KHC-K:3611
                                    MFA No. 203787 of 2023




3.   THE LEGAL MANAGER
     ICICI LOMBARD GENERAL INSURANCE,
     COMPANY LIMITED,
     DIVISIONAL OFFICE, ESCOM STATION ROAD,
     KALABURAGI-585101.
                                            ...RESPONDENTS

(BY SRI MANJUNATH MALLAYYA SHETTY, ADVOCATE FOR R3;
 VIDE ORDER DATED 25.03.2024, NOTICE TO R1 AND R2,
  IS DISPENSED WITH)

      THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.

ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED

21-03-2023, PASSED BY THE SENIOR CIVIL JUDGE AND MACT,

CHINCHOLI,   IN   M.V.C.NO.499/2018   BY   ENHANCING    THE

COMPENSATION.


      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is by the claimant in MVC.No.499/2018

on the file of the Senior Civil Judge and MACT, at Chincholi

(hereinafter for short referred to as 'Tribunal') against

judgment and award passed in the said case dated

21.03.2023, claiming for enhancement of compensation.

NC: 2024:KHC-K:3611

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

before the Tribunal for sake of convenience.

03. It is the case of the claimant that on

05.05.2017 the clamant met with an accident due to rash

and negligent riding of the rider of motorcycle bearing

Reg.No.KA-32-EL-2212 by its rider. As a result of which,

the claimant has sustained fracture of 1/3rd of the left

femur and both bones of left leg along with other injuries

mentioned in the wound certificate. The claimant had

spent more than Rs.3,00,000/- towards medical expenses

and still he has to spend Rs.2,00,000/- towards future

medical expenses. It is further stated that he was aged

about 22 years at the time of accident and earning

Rs.20,000/- per month. Due to injuries sustained in the

accident, he has been suffering from permanent disability.

Hence, prayed to award the compensation of

Rs.20,00,000/-.

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04. The respondent No.3 - insurance company

denied the contents of the claim petition and prayed for

dismissal of the claim petition.

05. From the rival contentions of both the parties,

the Tribunal had framed the necessary issues for its

determination.

06. The claimant to prove his case examined PWs.1

and 2 and got marked Exs.P.1 to 17. The respondent No.2

examined RW.1 and no documents were marked.

07. 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.
01. Towards     injury    pain   and      Rs.10,000/-
    suffering
02. Towards medical expenses            Rs.2,50,000/-
03. Towards     food     and   extra       Rs.4,400/-
    nourishment      and      medical
    attendant
04. Towards loss of income during         Rs.10,250/-
    treatment
05. Towards loss of future income       Rs.2,21,400/-
06. Deprivation of future amenities        Rs.5,000/-
    Total compensation                 Rs.5,06,050/-

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08. Heard the arguments of learned counsel for the

claimant and respondent No.2 - insurance company.

09. The learned counsel for the claimant submits

that claimant in his evidence, has stated about his

difficulty and he has examined PW.2, who assessed the

disability of the claimant at 71.99% to the whole body.

The Tribunal though considered that 1/3rd of the said

disability amounts to 23%. However, restricted the same

to 10%, which is erroneous. The amounts of compensation

awarded under the other heads are also on the lower side.

Hence, he prayed for enhancement of the compensation.

10. The learned counsel for the respondent No.3

supported the impugned judgment and vehemently

submitted that there is no need to interfere in the said

findings of the Tribunal. He has also submitted that the

PW.2 is not a treated doctor and he has inflated disability

which is not acceptable. The fracture of femur as well as

tibia and fibula cannot be lead to disability to an extent of

80% disability to the whole body. The Tribunal has rightly

considered the disability at 10%. Hence, prayed for

dismissal of the appeal.

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11. The fact of accident and injuries to the claimant

in the vehicle accident is not in dispute. There is no need

to consider the same.

12. According to the evidence led by the claimant,

he had sustained two fractures i.e., fractures of left femur

as well as both the bones of left leg (tibia and fibula). The

said fractures were complicated. Considering the nature of

injuries and treatment taken as well as the age of the

claimant and nature of his work, the disability assessed by

the Tribunal is on lower side, which needs to be enhanced

to 20%. There is no dispute regarding the age of the

claimant as well multiplier applicable to facts of the

present case.

13. As rightly submitted by the learned counsel for

the claimant the amounts of compensation awarded under

other heads are also on the lower side. The claimant had

taken treatment as inpatient in all 20 days. Therefore,

awarding of the compensation under the head of loss of

income during the laid up period for a month is also on the

lower side. At least for a period of 03 months he might not

NC: 2024:KHC-K:3611

be in a position to attend his duty. Considering all these

facts and evidence available on record, the said amount of

compensation needs to be re-calculated. Accordingly, the

following amount of compensation is re-calculated /

awarded :-

Sl. Heads Compensation Compensation No. Awarded by the Awarded by this Tribunal Court

01. Pain and suffering Rs.10,000/- Rs.50,000/-

02. Medical expenses Rs.2,50,000/- Rs.2,50,000/-

03. Food and extra Rs.4,400/- Rs.25,000/-

        nourishment          and
        medical attendant
 04.    Loss of income during             Rs.10,250/-          Rs.30,750/-
        laid up period
 05.    Loss of future income            Rs.2,21,400/-       Rs.4,42,800/-
        due      to    permanent
        disability
 06.    Loss of amenities                 Rs.5,000/-          Rs.50,000/-
        Total compensation            Rs.5,06,050/-        Rs.8,48,550/-

14. The claimant is entitled for enhancement of

Rs.3,42,500/-. The claimant is also entitled for interest on

the said amount at the rate of 6% per annum.

15. Liability to pay compensation is not in dispute.

The respondent No.3 - insurer is liable to pay the said

amount.

16. For the above said discussion, I answer above

question partly in the affirmative and pass the following;


                                    NC: 2024:KHC-K:3611





                    ORDER


 i.    The appeal is allowed in part.


ii.    The impugned judgment and award passed by the

Senior Civil Judge and MACT, at Chincholi in

MVC.No.499/2018 dated 21.03.2023, is modified.