Karnataka High Court
Shri.Mahantesh @ Mahantappa S/O ... vs Shri.Ramesh S/O Aiyappa Gaddankeri on 27 May, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:6992-DB
MFA No. 104625 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.104625 OF 2018 (MV-I)
BETWEEN:
SHRI. MAHANTESH @ MAHANTAPPA S/O. MALEPPA TALEVAD,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O: HALAGALI, TALUKA: MUDHOL,
DISTRICT: BAGALKOT, PIN CODE: 587121.
...APPELLANT
(BY SRI. DEEPAK S.KULKARNI, ADVOCATE)
AND:
1. SHRI.RAMESH S/O. AIYAPPA GADDANKERI,
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O: BISNAL, TALUKA: BILAGI,
DIST: BAGALKOT, PIN CODE: 587117,
(OWNER OF VEHICLE NO.KA-29/A-0644).
2. THE DIVISIONAL MANAGER,
CHOLAMANDALAM MS GENERAL
Digitally signed by INSURANCE COMPANY LTD.,
ROHAN HADIMANI T
REGINOAL OFFICE, II FLOOR,
Location: HIGH
COURT OF KALABURGI PLAZA, DESAI CROSS,
KARNATAKA DESHPANDE NAGAR, HUBBALLI-580029.
(THE INSURER OF THE MOTOR CYCLENO.KA-29-A-0644)
(POLICY NO.3373/00362145/000/02)
...RESPONDENTS
(BY SRI. SUBHASH J.BADDI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 30.01.2018 PASSED IN MVC
NO.23/2016 ON THE FILE OF THE MOTOR VEHICLE ACCIDENT
CLAIMS TRIBUNAL-IX, MUDHOL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 104625 of 2018
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ORDERS, THIS DAY, S G PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for orders, it is taken up for
final disposal with the consent of learned counsel for both the
parties.
2. The appellant is before this Court being aggrieved
by the judgment and award dated 30.01.2018 passed in
MVC.No.23/2016 on the file of the Motor Vehicle Accident
Claims Tribunal-IX, Mudhol, Bagalkot (for short, 'the Tribunal')
and is praying for enhancement of compensation awarded by
the Tribunal.
3. It is stated that on 05.03.2015 when the
claimant/appellant was proceeding on his motorcycle bearing
registration No.KA-48/L-4991, a Cruzer vehicle bearing
Registration No.KA-20/A-0644 lost control and dashed to the
claimant. Due to the accident, the claimant sustained fatal
injuries to his right leg and all over the body. Immediately, he
was shifted to the hospital at Mudhol. It is stated that the
injured was aged about 25 years and was earning an income of
Rs.10,000/- per month from agricultural work. Due to the
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accidental injuries, he is not in a position to work as he was
working earlier. On filing of the claim petition, the owner and
the Insurance Company appeared before the Tribunal and filed
separate written statements. The respondents denied the
allegations made in the claim petition and the Insurance
Company particularly contented that the driver of the Cruzer
vehicle was not possessing valid and effective driving licence as
on the date of the accident and hence, it denied its liability
before the Tribunal. The claimant examined himself as PW1 and
also examined PW2-Treated Doctor apart from the documents
as Exs.P1 to P77. On behalf of the respondents, no witnesses
were examined but marked exhibits at Exs.R1 to R3. The
Tribunal based on the material on record allowed the claim
petition in part and awarded total compensation of
Rs.5,38,584/- on the following heads:
Loss of future income Rs. 2,72,160/-
Towards medical expenses Rs. 2,08,424/-
Towards pain and suffering Rs. 30,000/-
Loss of income during the period of Rs. 14,000/-
treatment and rest
Towards attendant charges Rs. 4,000/-
Towards loss of amenities Rs. 10,000/-
Total Rs. 5,38,584/-
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4. While awarding the above compensation, the
Tribunal assessed the income of the appellant/injured at
Rs.7,000/- per month and assessed the whole body disability at
18%. The claimant not being satisfied with the quantum of
compensation awarded by the Tribunal and also not being
satisfied with the assessment of disability, is before this Court
in this appeal.
5. Heard Sri. Deepak S.Kulkarni, learned counsel for
the appellant/injured and Sri. Subhash J.Baddi, learned counsel
for respondent No.2/Insurance Company.
6. Perused the material and also the certified copies of
the documents made available by the learned counsel for the
appellant during the course of hearing.
7. Learned counsel for the appellant submits that the
income assessed by the Tribunal at Rs.7,000/- per month is on
the lower side. He submits that the appellant/injured was
earning more than Rs.10,000/- per month by doing agricultural
work, thus, he prays for enhancement of income from
Rs.7,000/- per month to Rs.10,000/- per month. Further, he
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would submit that the appellant/injured has suffered the
following injuries:
"1. Type lll open fracture shaft right femur
2. Type ll open proximal tibia fracture right
3. Type ll open proximal 3rd ulna fracture right
4. CLW over proximal 3rd right forearm"
8. Further, learned counsel for the appellant would
submit that though PW2-Doctor examined in support of the
appellant deposed that the appellant has suffered disablity of
45% to the lower limb and 10% to the upper limb, the Tribunal
has failed to assess proper disability of the appellant. Learned
counsel would also submit that when PW2-Doctor has deposed
that the appellant has totally suffered 55% of the disability, the
Tribunal ought to have assessed the disability appropriately.
Further, learned counsel for the appellant would submit that
the claimant was inpatient for more than 19 days and the
compensation awarded by the Tribunal on the heads of 'Pain
and suffering', 'loss of amenities' and 'towards attendant
charges' is on the lower side and hence, prays for enhancing
the same. Thus, he prays for allowing the appeal.
9. Learned counsel for respondent No.2/Insurance
Company would submit that the compensation awarded by the
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Tribunal is just & proper and would submit that the
compensation awarded by the Tribunal is more than sufficient,
hence, the appellant/injured would not be entitled for any
enhancement as prayed in the appeal. Thus, he prays for
dismissal of the appeal.
10. Having heard the learned counsel for the parties
and on perusal of the material on record, the following points
would arise for our consideration:
(i) Whether the Tribunal is justified in assessing the
income of the appellant/injured at Rs.7,000/- per
month?
(ii) Whether the Tribunal is justified in assessing the
whole body disability at 18%?
11. Our answer to the above points would be 'negative'
and 'affirmative', respectively for the following reasons:
12. The accident is of the year 2015. The Tribunal has
assessed the income of the appellant/injured at Rs.7,000/- per
month which is on the lower side. It is admitted fact that no
proof is placed on record with regard to the income of the
appellant/injured. In the absence of material on record to
establish the income of the appellant/injured, the Tribunal
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ought to have taken note of the chart prepared by the
Karnataka State Legal Services Authority to assess the notional
income of the appellant. The income in terms of the chart
prepared by the Karnataka State Legal Services Authority for
the year 2015 notional income would be Rs.8,000/- per month.
In terms of the same, the income of the appellant is assessed
at Rs.8,000/- per month.
13. The accident that occurred on 05.03.2015 between
the motorcycle bearing Registration No.KA-48/L-4991 and
Cruzer vehicle bearing Registration No.KA.29/A-0644 is not in
dispute and also the injuries suffered by the claimant/appellant.
Admittedly, the claimant/appellant has suffered following
injuries:
"1. Type lll open fracture shaft right femur
2. Type ll open proximal tibia fracture right
3. Type ll open proximal 3rd ulna fracture right
4. CLW over proximal 3rd right forearm"
14. The appellant/injured has suffered 45% disability to
his lower limb and 10% disability to the upper limb as deposed
by PW2-Doctor. While assessing the disability in terms of
judgment of the Hon'ble Apex Court in the case of RAJ KUMAR
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Vs. AJAY KUMAR,1 the Tribunal while assessing the disability
shall have to assess the disability at 1/3rd of the disability to a
particular limb assessed by the Doctor. Taking note of the
avocation of the appellant in question i.e., agricultural work,
the assessment of disability at 18% by the Tribunal is proper
and correct and it needs no interference by this Court.
15. It is an admitted fact that the appellant/injured was
inpatient for nearly 19 days. Taking note of the injuries
suffered by the appellant, the Doctor's evidence, and the
operation undergone by the appellant and also taking note of
the implants, we are of the considered opinion that the
compensation awarded by the Tribunal on the heads of 'pain
and suffering', 'loss of amenities' and 'towards attendant
charges' is on the lower side. Thus, the appellant/claimant
would be entitled for a sum of Rs.75,000/- as against
Rs.30,000/- under the head of 'pain and suffering'; the
appellant/claimant is entitled to a sum of Rs.50,000/- as
against Rs.10,000/- under the head of 'loss of amenities' and
the appellant/claimant is also entitled to a sum of Rs.20,000/-
as against Rs.4,000/- under the head of 'attendant charges'.
2011 ACJ 1 (SC)
NC: 2024:KHC-D:6992-DB
16. Since this Court has assessed the income of the
appellant/claimant at Rs.8,000/- per month, he would be
entitled to a sum of Rs.24,000/- (i.e.Rs.8,000 X 3 months) as
against Rs.14,000/- awarded by the Tribunal under the head of
'loss of income during the period of treatment and rest'.
17. There is no dispute with regard to the application of
multiplier as '18'. Thus, the appellant/claimant is entitled for
modified compensation under the head of 'loss of future
income' as follows:
Rs.8,000 X 12 [months] X 18 [multiplier] X 18% [disability] = Rs.3,11,040/-
18. Accordingly, the appellant/claimant would be
entitled for modified compensation on the following heads:
Sl.No. Particulars Amount
(In Rupees)
1. Loss of future income 3,11,040/-
2. Towards medical expenses 2,08,424/-
3. Towards pain and suffering 75,000/-
4. Loss of income during the 24,000/-
period of treatment and rest
5. Towards attendant charges 20,000/-
6. Towards loss of amenities 50,000/-
Total Rs. 6,88,464/-
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19. Thus, the appellants/claimant is entitled to total
compensation of Rs.6,88,464/- as against Rs.5,38,584/-
awarded by the Tribunal.
20. Hence, we pass the following:
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and award of
Tribunal is modified to an extent that the
claimant is entitled to total compensation of
Rs.6,88,464/- as against Rs.5,38,584/-
awarded by the Tribunal.
c) The enhanced compensation amount will
bear interest at the rate of 6% per annum
from the date of claim petition till date of
realization.
d) Respondent No.2/Insurer shall deposit the
compensation amount with accrued interest
before the Tribunal within a period of six
weeks from the date of receipt of certified
copy of this judgment.
e) On such deposit, the same shall be released
in favour of the appellant/claimant.
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f) Registry to transmit the records, if any, to
the Tribunal, forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RH
