Karnataka High Court

Sri Vijayakumar P R vs Nowshad Khan on 5 March, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                            NC: 2024:KHC:9170
                                                       MFA No. 3006 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 5TH DAY OF MARCH, 2024
                                          BEFORE
                        THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                   MISCELLANEOUS FIRST APPEAL NO. 3006 OF 2021 (MV-I)
                   BETWEEN:
                        SRI. VIJAYAKUMAR P. R
                        S/O RAJANNA,
                        AGED ABOUT: 32 YEARS,
                        R/AT PATTAGANAHALLI,
                        KORATAGERE TALUK,
                        NOW R/AT: C/O GANGAMMA,
                        SHIVAKRUPA NILAYA,
                        MADHUGIRI ROAD, SIRA GATE,
                        TUMAKURU - 572 101.
                                                                ...APPELLANT
                   (BY SRI. K. N. SUNIL., ADVOCATE;
                       SRI. RAMESH K R., ADVOCATE;)

                   AND:
                   1. NOWSHAD KHAN
                      S/O WAZIR KHAN,
                      AGED ABOUT: 47 YEARS,
                      R/O MUSLIM STREET,
Digitally signed      KRS AGRAHARA,
by V KRISHNA
                      KUNIGAL TOWN,
Location: High
Court of              TUMAKURU DIST - 572 130.
Karnataka
                   2.   THE MANAGER,
                        UNITED INDIA INSURANCE CO., LTD.,
                        JAYADEVA COMPLEX,
                        1ST FLOOR, B. H. ROAD,
                        TUMAKURU - 572 101
                        REP. BY ITS BRANCH MANAGER
                                                             ...RESPONDENTS
                   (BY SRI. K. NAGARAJAIAH., ADVOCATE FOR R2;
                       VIDE ORDER DATED 28.06.2022, NOTICE TO R1 IS
                       DISPENSED WITH;)
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                                              NC: 2024:KHC:9170
                                          MFA No. 3006 of 2021




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.05.2020 PASSED IN MVC
NO.957/2018 ON THE FILE OF THE VI ADDITIONAL DISTRICT
AND SESSIONS JUDGE, TUMAKURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC,.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                           JUDGMENT

This appeal is preferred by the claimant challenging the

judgment and award dated 07.05.2020 passed by VI Additional

District and Sessions Judge, Tumakuru (for short 'the tribunal')

in MVC.No.957/2018. This appeal is founded on the premise of

inadequate and meagre compensation. Hence, the appellant

seeks enhancement of compensation.

2. Parties to the appeal shall be referred to as per

their status before the tribunal.

3. Brief facts of the case are as under;

The claimant was travelling on his motor bike bearing

registration No.KA-64-L-4853 on 24.04.2018, when he reached

near I.K.Colony at Koratagere-Uridigere state Highway at that

time the driver of the Swift car bearing registration No.KA-11-

M-3680 came in a rash and negligent manner and high speed

and dashed against the motor bike of the claimant, causing the

NC: 2024:KHC:9170

accident. Due to which the claimant fell down and sustained

multiple grievous injuries, immediately he was shifted to

primary health centre Koratagere, where he took first aid

treatment and thereafter shifted to Adithya Nursing Home,

Tumakuru, where he was inpatient for a period of 7 days. He

underwent bone surgery and implants were fixed.

3.1. Prior to the accident, claimant was hale and healthy

and was working as a "Driver" by profession in PVT vehicles,

earning Rs.15,000/- p.m as a salary with additional batta

charges at Rs.100/- per day. Due to the occurrence of

accident, injury suffered, disability having incurred, financial

expenditures met by the claimant, he filed claim petition

seeking compensation.

3.2. On service of notice, respondent No.1 did not

appeared before the Court, he was placed ex-parte.

Respondent No.2 - Insurance Company filed statement of

objections, denied the claims of the claimant including age,

avocation, income, the disability suffered and the financial

expenditures incurred and sought for dismissal of the claim

petition.

NC: 2024:KHC:9170

3.3. On the basis of pleadings, the tribunal framed

relevant issues for consideration.

3.4. In order to substantiate the issues and to establish

the case, the claimant got examined himself as PW.1 and the

Doctor as PW.2 and got marked documents as Exs.P1 to P15.

On the other hand, respondents did not adduce their evidence

either orally or documentary.

3.5. On the basis of material evidence, both oral and

documentary and on hearing the submissions of learned

counsel for both parties, the tribunal awarded compensation of

Rs.12,57,000/- with interest @ 6% p.a, directed the Insurance

Company to pay the compensation within three months.

3.6. Being aggrieved by the meagre compensation

awarded by the tribunal, the claimant is before this Court

challenging the impugned judgment and award.

4. The main contention of the learned counsel for

appellant-claimant is that, the tribunal has committed an error

in awarding meagre compensation, which calls for interference

at the hands of this Court. Accordingly, he seeks enhancement

of compensation.

NC: 2024:KHC:9170

5. Per contra, learned counsel for respondent-

Insurance Company submits that the tribunal has rightly

awarded just and reasonable compensation, which does not call

for interference. Therefore, on these grounds, he seeks to

dismiss the appeal.

6. Having heard learned counsel for claimant and

learned counsel for respondent - Insurance Company, perused

the impugned judgment and award including Exs.P1 to P15. On

perusal of Exs.P1 to P6, it is apparently clear that the FIR and

charge sheet has been laid against the driver of the offending

vehicle i.e., Swift Car, which is not disputed or challenged.

Hence, negligence is rightly attributed against the driver of the

offending Car. Exs.P7 to P15 are the medical bills, prescriptions

and medical records including driving license of the claimant.

On perusal of these records it is seen that the injuries are

suffered by the claimant due to the occurrence of the accident

and he has incurred financial expenditures. He also produced a

copy of the driving license to show that he was driving a private

vehicle.

NC: 2024:KHC:9170

7. Now coming to the question of age, avocation,

income and the disability for awarding compensation, it is seen

that the claimant was aged 30 years as on the date of

occurrence of accident. The appropriate multiplier would be

'16' which is correctly taken by the tribunal, which does not call

for interference. The income has taken by the tribunal at

Rs.9,000/- p.m, though the claimant has stated that he was

earning Rs.15,000/- plus additional Rs.100/- as batta charges

per day. Nothing is placed on record to prove his income

except the production of the driving license. The notional

income chart for the year 2018 prescribes Rs.12,500/- as

income. In view of production of the Ex.P12 - driving license,

the claimant cannot be treated on par with the daily wager/

Coolie, the claimant is a professional driver, as depicted in

Ex.P12. He possesses license for driving transport vehicles.

Therefore, he will have to be treated higher than the notional

income chart for assessing income. He has stated that he was

earning Rs.15,000/-p.m, since no documentary proof is

produced, this Court deems it appropriate to take his income at

Rs.14,000/- p.m.

NC: 2024:KHC:9170

8. Doctor has been examined as PW.2, who has opined

the disability to a particular limb at 100% and whole body

disability at 33%. On careful examination of the evidence of

the Doctor, tribunal has arrived whole body disability at 50%.

Learned counsel for the appellant contends that in the case

where disability of more than 50%, where the claimant has

suffered amputation from the knee below, future prospects

requires to be awarded. The same is controverted by learned

counsel for the Insurance Company by contending that future

prospects are not warranted in the present case. I am in

agreement with the learned counsel for the claimant,

considering the facts and circumstances of the case, wherein

right leg from the knee below has been amputated, future

prospects requires to be granted. In view of the age of the

claimant being less than 40 years he will be entitled to 40%

future prospects. Hence, loss of future income due to disability

would be Rs.18,81,600/-(Rs.14,000/- x 40% = Rs.19,600/- x

12 x 16 x 50%) is awarded as against Rs.8,64,000/-

9. Towards pain and suffering, the tribunal awarded

Rs.30,000/-. Therefore, this Court deems it appropriate to

NC: 2024:KHC:9170

award additional amount of Rs.70,000/-. In all, the claimant

would be entitled to Rs.1,00,000/- under this head.

10. Towards food, conveyance, nourishment, the

tribunal has awarded Rs.25,000/-. The claimant was in-patient

for a period of 31 days. Hence, I deem it appropriate to award

Rs.31,000/- under this head.

11. The tribunal has awarded Rs.40,000/- towards loss

of amenities. I deem it appropriate to award an additional

amount of Rs.60,000/-. In all, the claimant would be entitled to

Rs.1,00,000/- under this head.

12. Towards loss of income during laid up period, the

tribunal has awarded Rs.30,000/-. In view of enhancement of

the income by this Court to Rs.14,000/- per month, the

claimant would require atleast five months period to recuperate

and to get back to his normal day to day activities. Therefore,

the claimant would be entitled to Rs.70,000/-(Rs.14,000/-x 5)

under the head loss of income during laid-up period.

13. Towards medical expenses, the Tribunal has

awarded Rs.1,88,269/- on the basis of the actual bills

produced by the claimant, same is retained under this head.

NC: 2024:KHC:9170

14. Towards purchase of artificial limb Rs.80,000/- is

awarded by the tribunal. This Court deems it appropriate to

award Rs.1,00,000/- under this head.

15. In view of the above the claimant would be entitled

to a total compensation of Rs.24,70,869/- along with interest

at 6% as against Rs.12,57,000/- as mentioned in the table

below:

              Heads                       Amount in Rs.

Loss of future earnings                        18,81,600-00

Pain and suffering                              1,00,000-00

Loss of amenities                               1,00,000-00

Loss of    income    during    laid-up            70,000-00
period

Food, conveyance and attendant                    31,000-00
charges

Medical expenses                                1,88,269-00

Future Medical expenses(Purchase                1,00,000-00
of artificial limb)

              TOTAL                           24,70,869-00

                                            Rounded off to

                                           Rs.24,71,000-00
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                                                NC: 2024:KHC:9170

16. Accordingly, I pass the following:

ORDER

i) The appeal is allowed;

ii) The judgment and award dated 07.05.2020 passed in MVC.No.957/2018 by VI Additional District and Sessions Judge, Tumakuru is modified;

iii) The claimant is entitled to a total compensation of Rs.24,71,000/- along with interest @ 6% p.a, as against Rs.12,57,000/- awarded by the tribunal;

iv) The enhanced compensation amount shall be paid with interest @ 6% p.a. within a period of four weeks from the date of receipt of copy of this order;