Karnataka High Court

Mubarak vs Channareddy And Ors on 26 June, 2024

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                                                        NC: 2024:KHC-K:4288
                                                         MFA No. 201838 of 2017




                               IN THE HIGH COURT OF KARNATAKA,

                                        KALABURAGI BENCH

                             DATED THIS THE 26TH DAY OF JUNE, 2024

                                               BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA


                       MISCL. FIRST APPEAL NO. 201838 OF 2017 (MV-I)


                      BETWEEN:

                      MUBARAK
                      S/O HUSSAIN PATEL,
                      AGE: 39 YEARS,
                      OCC: CENTERING GUTTEDAR,
                      R/O. TAJ NAGAR, MUSLIM SANGH,
                      KALABURAGI-584101.
                                                                    ...APPELLANT
                      (BY SRI BABU H. METAGUDDA, ADVOCATE)


Digitally signed by   AND:
SHIVALEELA
DATTATRAYA UDAGI
Location: HIGH
COURT OF              1.   CHANNAREDDY
KARNATAKA                  S/O MUNIYAPPA PATIL,
                           R/O. H.NO.11-169, 13 D UPPER LANE,
                           NEAR RAGHAVENDRA TEMPLE,
                           BRAHAMPUR,
                           KALABURAGI-585104.
                      2.   THE PRINCIPAL KAYAK EDUCATION TRUST,
                           SARVAGNYA PU COLLEGE OF SCIENCE,
                           BEHIND SAI MANDIR,
                           KALABURAGI-585104.
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                                   NC: 2024:KHC-K:4288
                                    MFA No. 201838 of 2017




3.    THE DIVISIONAL MANAGER
      UNITED INSURANCE CO LTD.,
      JAWALI COMPLEX,
      SUPER MARKET,
      KALABURAGI-585104
                                                ...RESPONDENTS

(BY SRI MANVENDRA REDDY, ADVOCATE FOR R3;
VIDE ORDER DATED 19.10.2022 NOTICE
TO R1 AND R2 ARE DISPENSED WITH)



       THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO

CALL FOR THE RECORDS IN MVC NO.694/2015 ON THE FILE OF

THE II ADDITIONAL SENIOR CIVIL JUDGE            AND   MACT AT

KALABURAGI,      ALLOW   THIS   APPEAL    AND    MODIFY   THE

JUDGMENT AND AWARD DATED 04.07.2017 PASSED IN MVC

NO.694/2015 BY THE II ADDITIONAL SENIOR CIVIL JUDGE

AND       MACT    AT-KALABURAGI,    AND    ENHANCING      THE

COMPENSATION FROM RS.2,17,500/- WITH 6% INTEREST TO

RS.14,99,000/- WITH 12% INTEREST. AND ETC.


       THIS APPEAL, COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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                                       NC: 2024:KHC-K:4288
                                          MFA No. 201838 of 2017




                           JUDGMENT

This is claimant's appeal for enhancement of

compensation awarded by the II-Addl. Senior Civil Judge &

MACT, Kalaburagi (hereinafter referred to as 'the Tribunal'

for short) in MVC No.694/2015 dated 04.07.2017.

2. For the sake of convenience, the parties are

referred to as per their ranks before the Tribunal.

3. It is the case of the claimant/appellant that on

30.08.2014 at about 3:45 p.m. petitioner and another

labour by name Irfan Ahmed were proceeding on

motorcycle bearing Reg.No.KA-39/J-1500 from Auto nagar

to Humnabad. They were going on ring road, at Syed

Chincholi cross, near Aland Check post, they met with an

accident due to rash and negligent driving of school bus

bearing Reg.No.KA-32/A-7126 by its driver. As a result of

which petitioner had sustained head injury, shaft of right

tibia and fibula. Immediately he was taken to Basaveshwar

Teaching and General Hospital, Kalaburagi, thereafter to

Chirayu Hospital, Kalaburagi and subsequently to the

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Kamareddy Ortho & Trauma Care Hospital, Kalaburagi,

wherein he was admitted as inpatient from 03.09.2014 to

10.09.2014 and he was undergone surgery. Claimant had

spent more than Rs.2,50,000/- towards medical

treatment.

4. It is further case of the petitioner that he was

working as 'centering contractor' 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, the

claimant prayed to award compensation of Rs.23,40,000/-

5. Respondent Nos.1 and 2 are owners of said bus

and respondent No.3 is insurer. They have denied the

contentions of the petitioner and they further contended

that accident had taken place due to negligence of the

rider of the motorcycle. With these reasons prayed to

dismiss the claim petition.

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6. From the rival contentions of both the parties,

the Tribunal had framed the necessary issues for its

determination.

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

to 3 and got marked Exs.P1 to 20 and closed his evidence.

Respondents have not led any evidence, however, got

marked Ex.R1/insurance policy.

8. After hearing both the parties and appreciating

the evidence available on record, the Tribunal by its

impugned judgment, awarded the following amount of

compensation.

Sl.No.              Particulars                 Amount
  1.   pain and suffering                        Rs.10,000/-
  2.   Loss of future income                   Rs.1,21,000/-
  3.   Attendant charges, food and                Rs.6,000/-
       conveyance charges
  4.   Medical expenses                          Rs.68,100/-
  5.   Loss of income during treatment            Rs.2,400/-
  6.   Loss of amenities and nutrition food      Rs.10,000/-
                                      Total   Rs.2,17,500/-

9. Heard arguments of learned counsel for both

the parties.

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10. The learned counsel for the appellant would

submit that the Tribunal has awarded meager amount of

compensation on all the heads. The claimant has

examined PW.2 and 3 who have issued disability certificate

for the respective injuries sustained by him. The Tribunal

has not considered it properly and determined disability to

an extent of 12%, though PW.2 has stated that the

claimant has been suffering from permanent disability to

an extent of 33% and PW.3 has stated that claimant has

been suffering from permanent disability to an extent of

36% to the whole body. The learned counsel further

submitted that the Tribunal has not properly assessed

income of the claimant, which needs to be considered.

With these reasons prayed for enhancement of

compensation.

11. The learned counsel for respondent No.3

supports the impugned judgment and award and submits

that the Tribunal has considered materials on record

properly and awarded just and fair amount of

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compensation, which does not call for any interference by

this Court. Hence, prayed for dismissal of the appeal.

12. The following question arises for determination.

"Whether the claimant is entitled for the enhancement of compensation?

13. The fact of accident and injuries sustained by

the petitioner in the vehicle accident are not in dispute.

The respondents have not filed any appeal against the

impugned judgment. Therefore, there is no need to

reconsider the same.

14. The records reveal that, the claimant had

fracture of right tibia and fibula; He underwent surgery to

the said fractures in Kamareddy Hospital and he was

admitted in the Kamareddy Hospital from 03.09.2014 to

10.09.2014 vide Ex.P7. As per Ex.P6 claimant had

sustained fracture of right tibia, fracture of left temporal

bone, EDH of left parietal temporal region. Discharge

summary given by Chirayu Hospital at Ex.P8 corroborate

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the said fact. It also reveals that he was inpatient from

30.08.2014 and he was discharged from the said hospital

at his request. X-rays are produced at the time of

assessment of disability. The evidence of PWs.2 and 3 also

supports the injuries, that was accepted by the Tribunal.

15. According to the petition averments age of the

petitioner, at the time of accident was 37 years. However,

the Tribunal accepted the age of the petitioner on the

basis of medical records as 45. The income of the claimant

was taken as Rs.6,000/- per month by the Tribunal though

claimant had contended that he was earning Rs.15,000/-

per month. The claimant was unable to produce reliable

evidence to prove his income, therefore, notional income

was assessed by the Tribunal. If same is assessed as per

chart prepared by the KSLSA, income of the claimant could

be considered as Rs.7,500/- per month and appropriate

multiplier applicable is undisputedly as '14'.

16. The main dispute in this case is regarding

disability.

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17. The Tribunal by the impugned judgment at

page-16 considered that both PWs.2 and 3 are not treated

doctors and PW.3 is not even a neurologist to assess the

disability regarding head injuries. Considering the same,

disability was taken as 12% to the whole body. PW.2 has

stated that petitioner has been suffering from certain

difficulties due to EDH and fracture of left temporal bone.

Similarly PW.2 who is Ortho Surgeon, assessed disability

to an extent of 33% to the whole body. The petitioner had

sustained fracture of tibia and fibula. Therefore,

assessment of 33% to the whole body is on higher side. It

could be 10 to 12% to the whole body, considering the

treatment taken by the claimant.

18. The claimant is said to be mason and contractor

in centering work. Considering the difficulty he has been

suffering due to injuries and also considering the evidence

of PWs.2 and 3 permanent disability to the whole body

could be considered between 18 to 20%. Accordingly,

disability is taken as 20% to the whole body. On the basis

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of the above said figures, the compensation under the

head loss of future earning capacity due to permanent

disability is assessed as Rs.2,52,000/- (Rs.7,500/- x 12 x

14 x 20%).

19. Looking to the treatment taken, etc and other

materials available on record, the amount of compensation

awarded on other heads by the Tribunal is on the lower

side, which needs to be enhanced. Accordingly, the

following amount of compensation is awarded:

Sl.             Heads                    Amount           Amount
No.                                    awarded by       awarded by
                                       the Tribunal      this court
1.    Pain and suffering                  Rs.10,000/-      Rs.50,000/-
2.    Loss of future earning            Rs.1,21,000/-    Rs.2,52,000/-
      capacity due to permanent
      disability(7500x12x14x20%)
3.    Medical expenses                    Rs.68,100/-     Rs.68,100/-
4.    Attendant charges,                   Rs.6,000/-     Rs.25,000/-
      conveyance charge, special
      diet
5.    Loss of income during laid           Rs.2,400/-     Rs.22,500/-
      up period (7500x3)
6.    Loss of amenities and               Rs.10,000/-     Rs.40,000/-
      future unhappiness
7.    Future medical expenses                    ----    Rs.20,000/-
                             Total     Rs.2,17,500/- Rs.4,77,600/-
                    Enhancement               Rs.2,60,100/-
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20. The claimant is entitled for enhancement of

compensation of Rs.2,60,100/- along with interest at the

rate of 6% per annum. Accordingly, I answered the above

question partly in the affirmative and pass following:

ORDER

i. The appeal is allowed in part.

ii. The impugned judgment and award passed by

the II-Addl. Senior Civil Judge & MACT,

Kalaburagi, in MVC.No.694/2015 dated

04.07.2017 is modified;

(a) An amount of Rs.2,60,100/- is enhanced

in addition to compensation awarded by

the Tribunal with interest at the rate of

6% p.a. on the enhanced amount of

compensation from the date of petition

till its realization.

iii. Respondent No.3 - insurance company shall

deposit the said amount with interest before

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the Tribunal within a period of eight weeks

from the date of receipt of a copy of this