Karnataka High Court
Mr. Zakir Hussain vs The Regional Mangager on 4 September, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2024:KHC:36085
MFA No. 4395 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 4395 OF 2018 (MV)
BETWEEN:
MR. ZAKIR HUSSAIN
AGED ABOUT 29 YEARS
S/O NAZEER AHMED
R/AT NO.350, DARGA MOHALLA
D.V.NAGAR POST, BENGALURU-560016
...APPELLANT
(BY SRI. MOHAMMMED SHERIFF.,ADVOCATE)
AND:
1. THE REGIONAL MANGAGER
THE ORIENTAL INS.CO.LTD.,
T.B.HUB, NO.44/45
LEO SHOPPING COMPLEX
RESIDENCY ROAD
BENGALURU-560025.
2. MR.KRISHNAMURTHY T
Digitally signed by S/O VENKATAPPA
HEMALATHA A
BAIREDDY PALLI
Location: HIGH
COURT OF CHITTOR - 517415
KARNATAKA ...RESPONDENTS
(BY SMT. HARINI SHIVANANDA.,ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH V/O DATED: 07.12.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.05.2017
PASSED IN MVC NO.1075/2016 ON THE FILE OF THE II
ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM,
BENGALURU[SCCH-13] PARTLY ALLOWING THE CLAIM
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MFA No. 4395 of 2018
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
ORAL JUDGMENT
1. This appeal under Section 173(1) of Motor Vehicles
Act, 1988 (hereinafter referred to as 'the Act') has been
filed by the claimant challenging by the judgment dated
31.05.2017 passed by MACT, Bengaluru in MVC
No.1075/2016.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 17.08.2015 when the claimant was
proceeding on motorcycle bearing registration No.BR-22-
4262 at Ramamurthy Nagar, opposite to Uttam Sagar
Hotel, Bengaluru, at that time, car bearing registration
No.AP-03-BL-1640 being driven by its driver at a high
speed and in a rash and negligent manner, dashed to the
vehicle of the claimant. As a result of the aforesaid
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accident, the claimant sustained grievous injuries and was
hospitalized.
3. The claimant filed a petition under Section 166 of the
Act, seeking compensation. It was pleaded that he spent
significant amount towards medical expenses, conveyance
charges and other related costs. It was further pleaded
that the accident occurred solely on account of rash and
negligent driving of the offending vehicle by its driver.
4. Upon service of notice, the respondents appeared
through counsel and only respondent No.1 filed written
statement denying the averments made in the claim
petition.
5. On the basis of the pleadings of the parties, the
Claims Tribunal framed the issues and thereafter, recorded
the evidence. The Tribunal, by impugned judgment and
award has partly allowed the claim petition and held that
the claimant is entitled to a compensation of
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Rs.12,50,620/- along with interest at the rate of 6% p.a.
and directed the Insurance Company to deposit the
compensation amount along with interest. Being
aggrieved, the present appeal has been filed.
6. The learned counsel for the claimant has raised the
following contentions:
a) Firstly, the claimant has sustained grievous injuries.
He has examined the doctor as PW-2. In his evidence, he
has stated that the claimant has suffered 71% disability to
particular limb and 24% to whole body. The claimant is
unable to kneel, squat and sit cross legged and difficulty in
climbing stairs. He is unable to do his day to day work and
it has affected his earning capacity. There is functional
disability. But the Tribunal has failed to grant any
compensation towards future prospects.
b) Secondly, the doctor has deposed that the claimant
requires to undergo hip replacement after 15 - 20 years
and it would cost Rs.5,00,000/-. But the Tribunal has
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granted a meager compensation of Rs.100,000/- under
the head of 'future medical expenses'.
c) Lastly, due to the accident, the claimant has
sustained grievous injuries. He was treated as inpatient for
a period of 10 days. Even after discharge from the
hospital, he was not in a position to discharge his regular
work. He has suffered lot of pain during treatment. But the
Tribunal has not granted any compensation for 'loss of
amenities'.
d) Considering the injuries sustained, age and avocation
of the claimant, the overall compensation awarded by the
Tribunal is on the lower side.
With the above contentions, the learned counsel
sought to allow the appeal.
7. On the other hand, the learned counsel for the
Insurance Company has raised the following counter-
contentions:
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a) Firstly, even though the doctor has stated that the
claimant has suffered 71% disability to particular limb and
24% to whole body, fractures are united. The disability will
not affect his day to day activities and there is no
functional disability. Hence, the Tribunal has rightly not
granted any compensation towards future prospects.
b) Secondly, the claimant has not provided any
estimate for future surgery for hip replacement. Hence,
the compensation awarded towards 'future medical
expenses' is just and reasonable.
c) Thirdly, considering the injuries sustained by the
claimant and considering the age and avocation of the
claimant, the overall compensation awarded by the
Tribunal is just and reasonable and it does not warrant
interference.
With the above contentions, the learned counsel
sought to dismiss the appeal.
8. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
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9. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 17.08.2015
due to rash and negligent driving of the offending vehicle
by its driver.
10. As per wound certificate, the claimant has sustained
fracture dislocation of right hip, mid shaft fracture right
tibia, lateral malleolus fracture comminuted right ankle,
bicoloum fracture right acetabulum with posterior wall
fracture, bilateral inferior pubic rami fracture. The doctor
in his evidence has stated that the claimant has suffered
disability of 71% to particular limb and 24% to whole
body. Therefore, taking into consideration the deposition
of the doctor and injuries mentioned in the wound
certificate, the Tribunal has rightly taken the whole body
disability at 24%.
11. In respect of future prospects, even though the
doctor has stated that the claimant has suffered 71%
disability to particular limb and 24% to whole body,
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fractures are united. The said disability will not come in
the way of claimant discharging his day to day activities
and there is no functional disability. Hence, the Tribunal
has rightly not granted compensation towards future
prospects.
12. The Tribunal, considering the age and avocation of
the claimant has rightly assessed the income of the
claimant at Rs.12,000/- p.m. The compensation awarded
by the Tribunal towards 'loss of future income' is just and
reasonable.
13. The claimant was hospitalized as an inpatient for
more than 10 days in the hospital and subsequently
received further treatment. Therefore, I am inclined to
enhance the compensation awarded under the head of
'food, nourishment, conveyance and attendant charges'
from Rs.10,000/- to Rs.25,000/-.
14. Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. Considering
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the prolonged pain during treatment as well as the
permanent disability certified by the doctor, I am inclined
to award a compensation of Rs.75,000/- under the head
of 'loss of amenities'.
15. Although the evidence of the doctor suggests that
the claimant has to undergo hip replacement and it would
cost approximately Rs.500,000/-, the claimant has not
provided any estimate for future surgery. Considering the
nature of the injuries and the evidence of the doctor, I am
inclined to enhance the compensation awarded by the
Tribunal under the head of 'future medical expenses' from
Rs.100,000/- to Rs.200,000/-.
16. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
17. Thus, in all, the claimant is entitled to an additional
compensation of Rs.190,000/-.
18. In the result, the following order is passed:
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ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of
Rs.14,40,620/- as against Rs.12,50,620/- as
awarded by the Tribunal.
d) The Insurance Company is directed to deposit the
compensation amount along with interest
@ 6% p.a. from the date of filing of the claim
petition till the date of realization, within a period of
six weeks from the date of receipt of copy of this
judgment. However, the compensation awarded
under the head of 'future medical expenses' shall not
carry any interest.
e) In view of the order dated 07.12.2023 passed by this
Court, the claimant is not entitled to interest on the
enhanced compensation for the delayed period of
258 days in filing the appeal.
Sd/-
(H.T. NARENDRA PRASAD)
JUDGE
DM
