Karnataka High Court
Ningappa S/O Hanamant Padasalagi vs Riyaz Ahmad S/O Dongarisab Nadaf on 7 March, 2024
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NC: 2024:KHC-D:5002
MFA No. 104873 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 104873 OF 2023 (MV-I)
BETWEEN:
NINGAPPA S/O. HANAMANT PADASALAGI,
AGE: 46 YEARS, OCC: PVT. JOB,
R/O. SECTOR NO.38, PLOT NO.64,
NAVANAGAR, TQ: DT: BAGALKOT-587101.
...APPELLANT
(BY SRI. SIDDAPPA SAJJAN, ADVOCATE)
AND:
1. RIYAZ AHMAD S/O. DONGRISAB NADAF,
AGE: 44 YEARS, OCC: OWNER OF THE VEHICLE,
R/O. HUDKO COLONY, NAVANGAR,
TQ AND DIST: BAGALKOT-587101.
2. THE BRANCH MANAGER,
BHARATI AXA GENERAL INSURANCE
CO. LTD, 1ST FLOOR, CENTRAL BUILDING,
Digitally
OPP: VIDYANAGAR POLICE STATION,
signed by VIDYANAGAR, HUBLI,
JAGADISH T R DIST: DHARWAD-580029.
Location:
HIGH COURT ...RESPONDENTS
OF (BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R2;
KARNATAKA NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND
ON EXAMINATION OF THE SAME BE PLEASED TO ENHANCE THE
COMPENSATION AND AWARD COMPENSATION CLAIMED BY THE
APPELLANT BY MODIFYING JUDGMENT AND AWARD DATED
27.01.2023 IN MVC NO.459/2019, PASSED BY THE 1ST ADDL.
SENIOR CIVIL JUDGE AND MEMBER MACT NO.III, AT: BAGALKOT IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:5002
MFA No. 104873 of 2023
JUDGMENT
This appeal is filed by the appellant/injured challenging
the judgment and award dated 27.01.2023, passed in MVC
No.459/2019 on the file of I Addl. Senior Civil Judge &
Member MACT-III, Bagalkot (for short, 'Tribunal'), seeking
for enhancement of compensation.
2. Brief facts leading to filing of this appeal are that on
20.05.2019 a about 8.30 p.m., when the appellant was
travelling as a passenger in Tumtum vehicle bearing
Registration No.KA.29/A.6735 from Bagalkot to Navanagar,
when the said vehicle came near HSK Hospital, Bagalkot, the
driver of the vehicle alighted some passenger and while
returning he lost the control of the vehicle and dashed to the
road humps resulted in accident. Due to the impact of the
accident, the appellant sustained grievous injuries and taken
treatment at Dr.Soragavi Hospital, Bagalkot and underwent
surgery. Wherein, he took treatment as an inpatient for 14
days and spent substantial amount towards medical and
other expenses. It is averred that due to the accident, the
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appellant suffered permanent disability and sought for
compensation.
3. The respondent entered appearance before the
Tribunal and filed statement of objections denying the mode
of accident, age, occupation, income, injuries sustained by
the appellant/injured and sought for dismissal of the claim
petition.
4. The appellant examined two witnesses as PW1
and PW2 got marked 10 documents as Ex.P1 to Ex.P10. The
respondent examined two witnesses as RW1 and RW2 got
marked 11 documents as Ex.R1 to Ex.R11. The Tribunal after
analyzing the evidence available on record has awarded total
compensation of Rs.6,86,000/- along with interest at the
rate of 6% per annum from the date of petition till its
realization. Being aggrieved by the award of compensation,
the appellant/claimant has filed the present appeal seeking
for enhancement of compensation.
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5. I have heard the arguments of the learned
counsel for the appellant/injured and the learned for the
respondent No.2/Insurance Company.
6. Sri.Sidddappa Sajjan, learned counsel appearing
for the appellant submits that the Tribunal has committed
grave error in assessing the income of the injured at
Rs.12,000/- per month which is contrary to the evidence
available on record. It is further submitted that the Tribunal
committed further error in assessing the disability of the
injured at 20% which is contrary to the evidence of PW2,
who opined that the appellant has suffered 45% to 50%
disability to limb. He argues that the appellant has suffered
three fractures and in view of the same he is entitled
compensation under the head of loss of amenities and award
of compensation under the head of transportation,
nourishment and attendant charges are on lower side. He
further submits that the Tribunal has failed to award any
compensation under the head of loss of income during the
laid-up period. Hence, he seeks to modify the impugned
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judgment and award of the Tribunal appropriately by
enhancing the compensation.
7. Per contra, Sri.Nagaraj C. Kolloori, learned
counsel appearing for the respondent No.2/Insurance
Company supports the impugned judgment and award of the
Tribunal and submits that the appellant/injured has failed to
place any evidence before the Tribunal to substantiate his
income. Hence, the Tribunal has justified in assessing the
income of the appellant of Rs.12,000/- which does not call
for any modification. He further argues that the award of
compensation by the Tribunal on other heads is just and
proper and does not call for any enhancement. Hence, he
prays to dismiss the appeal.
8. Heard the arguments of the learned counsel
representing the respective parties and perused the material
available on record. The only point that would arise for
consideration in this appeal is:
a) Whether the appellant/injured is entitled for the
enhanced compensation?
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9. The answer to the above point is in the
'affirmative' for the following reason:
10. The parties to the proceeding do not dispute that
the appellant/injured met with road accident on 20.05.2019
and suffered three fractures and taken treatment at
Dr.Soragavi Hospital, Bagalkot and incurred expenditure.
Taking note of the pleading and evidence available on
record, this Court is of the considered view that the Tribunal
has justified in assessing the disability of the appellant at
20%, which is in consonance with the evidence available on
record does not call for any modification. The Tribunal has
assessed the income of the deceased at Rs.12,000/- per
month for the purpose of determination of compensation.
Admittedly, the appellant has not placed any evidence to
substantiate the claim of income. This Court taking note of
the notional Income chart prepared by the Karnataka State
Legal Services Authority assessed the income of the
appellant/injured at Rs.13,250/- per month for the purpose
of determination of compensation. Thus, the
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appellant/claimant would be entitled to modified
compensation on the head of future earning capacity:
Rs.13,250 x 12 x 14 x 20/100 = Rs.4,45,200/-
11. This Court taking note of the oral evidence of
PW2 and medical evidence available on record more
particularly that the appellant has suffered three major
fractures and is of the considered view that the appellant is
entitled to additional sum of Rs.30,000/- under the head of
loss of amenities. Similarly, the appellant is entitled to
additional sum of Rs.12,000/- under the head of
transportation, nourishment conveyance and attendant
charges. The Tribunal has committed an error in not
awarding any compensation under the head of loss of income
during the laid-up period. Taking note of the assessed
income of the appellant, the appellant is entitled to
Rs.39,750/- under the head of loss of income during the
laid-up period. The award of compensation on the other
heads is unaltered.
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Sl. Particulars Amount
No.
1 Pain and sufferings Rs. 70,000/-
2 Medical expenses Rs.1,76,695/-
3 Transportation, Nourishment conveyance, Rs. 18,000/-
attendant charges
4 Towards loss of future income due to Rs.4,45,200/-
permanent disability
5 Towards future medical expenses Rs. 20,000/-
6 Towards loss of amenities of life Rs. 40,000
7 Loss of income during laid up period Rs. 39,750/-
Total Rs.8,09,645/-
12. For the aforementioned reasons, I pass the
following:
ORDER
a) Appeal is allowed in part.
b) The impugned judgment and award passed
by the Tribunal to an extent that the
appellant/injured would be entitled to total
compensation of Rs.8,09,645/- as against
Rs.6,85,895/- awarded by the Tribunal.
c) The enhanced compensation amount shall
carry interest at the rate of 6% per annum
from the date of petition till the date of
payment.
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d) On such deposit, the same shall be released
in favour of the appellant/claimant.
e) Draw modified award accordingly.
Sd/-
JUDGE
PMP
