Karnataka High Court
Nawaz S/O Khadirmiyya Syed vs Mohd. Tayyab And Anr on 28 June, 2024
-1-
NC: 2024:KHC-K:4408
MFA No. 202198 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 202198 OF 2017 (MV-I)
BETWEEN:
NAWAZ
S/O KHADIRMIYYA SYED
AGE: 37 YEARS,
OCC: LORRY MECHANIC NOW NIL,
R/O. SHAHPUR GALLI,
TQ. BASAVAKALYAN,
DIST. BIDAR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
Digitally signed by
SHIVALEELA
DATTATRAYA UDAGI
AND:
Location: HIGH
COURT OF
KARNATAKA 1. MOHD. TAYYAB
S/O MOHD. IBRAHIM SAB RATKAWALE,
AGE: 37 YEARS, OCC: DRIVER CUM
OWNER OF INDICA CAR BEARING
NO.MH-12/AX-7328,
R/O. ZINATAT SOCIETY,
NANDED ROAD, LATUR,
DIST. LATUR,
MAHARASHTRA-413510.
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
-2-
NC: 2024:KHC-K:4408
MFA No. 202198 of 2017
DR. JAWALI COMPLEX,
SUPER MARKET,
KALABURAGI-585101.
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R2;
VIDE ORDER DATED 18.03.2021, NOTICE TO R1 D/W)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND
AWARD DATED 13.03.2017 PASSED BY THE IIND ADDITIONAL
DISTRICT AND SESSIONS COURT AND ADDITIONAL MACT
BIDAR, SITTING AT BASAVAKALAYAN, IN MVC NO.670/2015
AND ENHANCE THE COMPENSATION AMOUNT WITH COST.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is claimant's appeal for enhancement of
compensation awarded by the II-Addl. Dist. & Sessions
Judge and Addl. MACT, Bidar sitting at Basavakalyan,
(hereinafter referred to as 'the Tribunal' for short) in MVC
No.670/2015 dated 13.03.2017.
NC: 2024:KHC-K:4408
2. For the sake of convenience, the parties are
referred to as per their ranks before the Tribunal.
3. Brief facts of the case are that on 30.06.2015 at
8:00 p.m. petitioner was going on his motorcycle bearing
Reg.No.KA-56/E-4793, along with one Hameed as pillion
rider. Near Anubhava Mantap cross on Basavakalyan-
Sastapur road, they met with an accident due to rash and
negligent driving of the Car bearing Reg.No.MH-12/AX-
7328 by its driver. As a result of which, claimant had
sustained head injuries and other injuries.
4. It is further case of the claimant that he was
aged about 35 years at the time of the accident; he was
mechanic and earning Rs.30,000/- 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 has prayed to
award compensation of Rs.21,00,000/-.
5. Respondent/insurer denied contents of the
claim petition and further contended that its liability is
NC: 2024:KHC-K:4408
restricted to the terms and conditions of the policy of
insurance and holding of valid licence by the driver of the
Car. Hence, prayed for dismissal of the claim petition.
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
and 2 and got marked Exs.P1 to 18 and closed his
evidence. Respondents have not led any evidence.
8. After hearing both the parties and appreciating
the evidence available on record, the Tribunal by
impugned judgment, awarded the following amount of
compensation.
Sl. Particulars Amount
No.
1. Pain and sufferings Rs.25,000/-
2. Loss of life amenities and Rs.20,000/-
pleasure
3. Medical attendant charges, food Rs.20,000/-
and nutrition charges and
transportation charges
4. Loss of income during laid up Rs.22,500/-
period (Rs.7,500x3)
5. Loss of future income Rs.2,88,000/-
NC: 2024:KHC-K:4408
(Rs.90,000x16x20/100)
6. Medical expenses Rs.3,15,000/-
Total Rs.6,90,500/-
9. Heard arguments of learned counsel for the
appellant and respondent No.2.
10. The learned counsel for the appellant submits
that amount of compensation awarded by the Tribunal is
on the lower side. The income was not assessed properly
and the assessment of disability is also not proper.
Therefore, prayed for enhancement of compensation.
11. The learned counsel for respondent No.2
supported the impugned judgment and submitted that
there are no grounds to interfere with the findings of the
Tribunal. Hence, prayed for dismissal of the appeal.
12. The following question arises for determination.
"Whether the claimant is entitled for
the enhancement of compensation?
NC: 2024:KHC-K:4408
13. The fact of accident and injury to the claimant
in vehicle accident is not seriously disputed. The
respondent-insurer had not challenged the finding of the
Tribunal. There is no need to reconsider the same.
14. Ex.P12/discharge summary reveals that
claimant had sustained injuries as - Abrasions over nose,
lateral aspect of left eye, right hand and both knee;
multiple small hemorrhagic contusion in left basal gangilia,
left lateral thalamus, left cerebral peduncle and posterior
part of body and spelenium of corpus callosum F/S/o
diffuse axonal injury, diffuse cerebral edema (Ex.P12),
MRI brain.
15. In Ex.P13 deformities are stated as follows:
1) loss of power in r-side upper and lower limbs;
2) unable to lift weight, hold the object or do any
work with r-hand;
3) unable to walk or balance properly due to
weakness in r-lower limb;
NC: 2024:KHC-K:4408
4) swelling of r-side of face giving deformed
look;
5) salivation from r-side, unable to close the rt-
eye properly;
6) loss of smell sensation and taste sensation;
7) speech is not clear, loss of immediate past
events and amnesia of accident.
16. The claimant was admitted as inpatient from
01.07.2015 to 05.08.2015 nearly more than a month.
Ex.P12 shows that multiple small hemorrhagic contusion in
left basal gangilia, left lateral thalamus, left cerebral
peduncle and posterior part of body and splenium of
corpus callosum, and diffuse cerebral edema.
17. As per the evidence of PW.2 and Ex.P13 patient
has been suffering from permanent disability to an extent
of 58% to the entire body. Scanning report is also
produced at Ex.P18. All these documents reveal about
severity of the injury. Looking to the said injuries,
disability has been stated by PW.2 in Ex.P13 the amount
NC: 2024:KHC-K:4408
of compensation awarded on all other heads are on lower
side.
18. The Tribunal had taken disability to an extent of
20% to the whole body, though the PW.2 has given
disability as 58% to the whole body. Therefore, the said
disability assessed by the Tribunal is on the lower side,
which needs to be enhanced. Looking to the opinion given
by PW.2 in Ex.P13, injuries and its consequences
permanent disability affecting earning capacity is taken as
25% to the whole body.
19. The Tribunal has taken notional income as
Rs.7,500/- though the claimant has contended that he was
earning Rs.30,000/- per month and Rs.100/- per day as
batta. The accident had taken place during the year 2015,
as per the chart prepared by the KSLSA, income could be
taken as Rs.8,000/- per month. The age of the claimant as
assessed by the Tribunal is 35 years. Hence, multiplier
applicable is '16'. On the basis of the same, the amount of
compensation under the head loss of future earning
NC: 2024:KHC-K:4408
capacity due to permanent disability is re-calculated as
Rs.3,84,000/- (Rs.8,000/- x 12 x 16 x 25%).
20. Considering the materials available on record
and consequence of injuries sustained by the claimant, the
following amount of compensation is awarded as under:
Sl. Heads Amount Amount
No. awarded by awarded by
the Tribunal this court
1. Pain and suffering Rs.25,000/- Rs.50,000/-
2. Medical expenses Rs.3,15,000/- Rs.3,15,000/-
3. Attendant charges, special Rs.20,000/- Rs.50,000/-
diet, conveyance charges
etc.
4. Loss of future earning Rs.2,88,000/- Rs.3,84,000/-
capacity due to permanent
disability
(8000x12x16x25%)
5. Loss of income during laid Rs.22,500/- Rs.48,000/-
up period (8000x6)
6. Loss of amenities and Rs.20,000/- Rs.1,00,000/-
future unhappiness due to
loss of hearing and loss of
smell assessment and also
difficulty in speech
Total Rs.6,90,500/- Rs.9,47,000/-
Enhancement Rs.2,56,500/-
21. The claimant is entitled for enhancement of
compensation of Rs.2,56,500/- along with interest at the
rate of 6% per annum from the date of petition till its
- 10 -
NC: 2024:KHC-K:4408
realization. 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. Dist. & Sessions Judge & Addl.
MACT, Bidar, sitting at Basavakalyan, in MVC
No.670/2015 dated 13.03.2017 is modified;
(a) Claimant is entitled for enhancement of
Rs.2,56,500/- 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.2 - insurance company shall
deposit the said amount with interest before
the Tribunal within a period of eight weeks
- 11 -
NC: 2024:KHC-K:4408
from the date of receipt of a copy of this
order.
iv. The orders passed by the Tribunal regarding
deposit and release are not disturbed.
v. The registry is directed to send back the Trial
Court records along with copy of this
judgment.
Sd/-
JUDGE
SDU
CT:PK
