Karnataka High Court

Smt.Raziya Begum W/O Mahammed Azim ... vs Shri.N.Periaswami Bin Nagulswami on 10 September, 2024

Author: Krishna S.Dixit

Bench: Krishna S.Dixit

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                                                          NC: 2024:KHC-D:12944-DB
                                                          MFA No. 100956 of 2019




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                                PRESENT
                               THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
                                                  AND
                             THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL

                       MISCELLANEOUS FIRST APPEAL NO. 100956 OF 2019 (MV-I)

                      BETWEEN:

                      SMT.RAZIYA BEGUM W/O. MAHAMMED AZIM MOKASHI,
                      AGE 49 YEARS, OCC: TAILORING CLASS AND FASHION
                      DESIGN (NOW NIL), R/O. B. SIDE MASJID E QUBA,
                      VANTAMURI COLONY, M. M. EXTENSION,
                      BELAGAVI, PIN CODE 590016.
                                                                       ...APPELLANT
                      (BY SRI. SANJAY S. KATAGERI, ADVOCATE)
                      AND:

                      1.   SHRI. N. PERIASWAMI BIN NAGULSWAMI,
                           AGE 58 YEARS, OCC: TRANSPORT BUSINESS,
                           R/O H.NO. 18/8, BAZAR STREET, ANEKAL TOWN,
                           BANGALORE, DIST RURAL BENGALURU, PIN CODE-562106.
                      2.   THE DIVISIONAL MANAGER,
Digitally signed by
                           UNITED INDIA INSURANCE COMPANY LTD.,
JAGADISH T R               "SITA SMRUTI" IIND FLOOR, P.B. NO. 156,
Location: High
Court of                   1568, MARUTI GALLI BELAGAVI, PIN CODE: 590002.
Karnataka,
Dharwad Bench                                                        ...RESPONDENTS
                      (BY SRI. S. S. JOSHI, ADV. FOR R2;
                          NOTICE TO R1 DISPENSED WITH)
                            THIS MFA IS FILED U/S.173(1) OF MV ACT, PRAYING TO THE
                      JUDGMENT AND AWARD DATED 14.12.2018 PASSED IN MVC
                      NO.2306/2016, BY THE LEARNED PRL. SENIOR CIVIL JUDGE AND
                      C.J.M AND ADDL. MACT, BELAGAVI IN AWARDING COMPENSATION
                      OF RS. 6,50,511/- WITH 6% INTEREST P.A. BE KINDLY MODIFIED BY
                      ENHANCING TO RS. 40,00,000/- WITH INTEREST @ 12% PER
                      ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT,
                      BY HOLDING RESPONDENTS NO.1 & 2 HEREIN JOINTLY AND
                      SEVERALLY LIABLE TO PAY THE COMPENSATION, BY ALLOWING THIS
                      APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE.
                                     -2-
                                            NC: 2024:KHC-D:12944-DB
                                            MFA No. 100956 of 2019




     THIS APPEAL, COMING ON FOR ORDERS,                    THIS   DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:          THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
                 AND
                 THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL


                             ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL)

Though this appeal is listed for orders, with the consent

of learned counsel for the parties, it is taken up for final

disposal.

2. This appeal is filed by the claimant/injured not

being satisfied with the quantum of compensation awarded

under judgment and award dated 14.12.2018 passed in MVC

No.2306/2016 on the file of the Principal Senior Civil Judge and

Chief Judicial Magistrate and Addl. MACT, Belagavi1, praying for

enhancement of compensation.

3. Brief facts leading to filing of this appeal are that,

the claimant/injured filed a claim petition before the Tribunal

seeking compensation for the accidental injuries sustained on

07/08.05.2016 involving Bus bearing registration No.KA-01/AE-

0769 and Truck. Due to the accident, she suffered permanent

'Tribunal', for short

NC: 2024:KHC-D:12944-DB

physical disability. The claimant was aged about 46 years at

the time of the accident and was commercial fashion designer

and also conducted tailoring classes and earning Rs.25,000/-

per month.

4. On appearance, the respondent No.2/Insurer has

filed statement of objections denying age, income and

avocation of the injured and sought for dismissal of the claim

petition.

5. Before the Tribunal, the claimant examined herself

as PW1 and other two witnesses as PW2 and PW3 and got

marked documents as Ex.P1 to P31. The respondents did not

examine any witness but got marked copy of insurance policy

as Ex.R1 with consent. The Tribunal on appreciation of entire

material available on record allowed the claim petition in part

awarding a total compensation of Rs.6,50,511/- with interest at

the rate of 6% per annum from the date of petition till

realization. Aggrieved by the same, the claimant/injured is in

appeal.

6. Learned counsel Sri. Sanjay S. Katageri appearing

for the appellant/injured vehemently contends that the Tribunal

NC: 2024:KHC-D:12944-DB

has committed grave error in assessing the income of the

injured and also the disability. He submits that the tribunal has

erred in awarding compensation in all other heads, hence, he

seeks to enhancement of the same appropriately by allowing

the appeal

7. Per contra, learned counsel Sri. S.S. Joshi

appearing for the respondent/Insurer supporting the impugned

judgment and award of the Tribunal submits that the Tribunal

taking note of the evidence available on record has rightly

justified in awarding just and proper compensation, which does

not warrant interference at the hands of this Court. Thus,

prays for dismissal of appeal.

8. Having heard the learned counsel for the parties

and on perusal of the appeal papers, the only point that falls for

consideration in this appeal is as to, whether the claimant is

entitled for enhanced compensation?

9. The parties to the proceedings do not dispute that

on 07/08.05.2016 about 12:30 a.m. the appellant was

travelling as a passenger in bus bearing Reg.no.KA.01-AE-0769

and met with an accident. The said bus was insured with the

NC: 2024:KHC-D:12944-DB

second respondent. The evidence on record indicate that the

injured sustained following fractures:

1. Tenderness present over lower chest 2 cm.

2. Comminuted displaced burst compression fracture of D-7 vertebral.

3. Displaced fracture of D-1 to D6 Spinous process and

4. Fracture of D5, D6 & D7 of vertebral right ribs fracture.

10. To prove the disability suffered by the appellant,

she has examined PW-3, who has assessed the disability to the

whole body at 38%. The tribunal considering the same has

assessed the disability at 20%. The wound certificate at Ex.P5,

other medical records and oral testimony of PW3 indicate that

the appellant has sustained disability to the vital parts of the

body. Keeping in mind the nature of avocation and the expert's

evidence on record, we are of the considered view that it would

be just and appropriate to reassess the disability at 25% to the

whole body for the purpose of determination of compensation.

The evidence on record indicates that the appellant was aged

about 46 years at the time of accident and was inpatient for a

period of 15 days in the hospital. Considering these aspects, we

are of the considered view that the compensation required to

NC: 2024:KHC-D:12944-DB

reassess appropriately. Admittedly, the appellant/claimant has

not produced any evidence with regard to the income. Hence,

we are not proposed to alter the assessment of the income.

11. There is no dispute with regard to the age of the

injured as 46 years and appropriate multiplier of 13. Thus, the

claimant is entitled to modified compensation on the head of

loss of future earnings due to disability as under:

Rs.10,000 x 12 x 13 x 25% = Rs.3,90,000/-

12. Taking note of the evidence of PW1, PW3, wound

certificate and other medical evidence on record, we modify the

compensation as under:

      Pain and suffering                              Rs. 50,000/-
      Loss of amenities                               Rs. 40,000/-
      Medical expenses                                Rs.1,83,511/-
      Loss of future earning                          Rs.3,90,000/-

Food, nourishment charges, attendant & travelling expenses Rs. 45,000/-

Loss of income during laid-up period Rs. 30,000/- Future medical expenses Rs. 25,000/-

------------------

                  Total                              Rs.7,63,511/-
                                                    ------------------

       13. In    all,     the   claimant    is   entitled   to   total

compensation of Rs.7,63,511/- as against Rs.6,50,511/-

awarded by the Tribunal.

14. In the result, we proceed to pass the following:

NC: 2024:KHC-D:12944-DB

ORDER

a) The appeal stands partly allowed.

b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant is entitled to total compensation of Rs.7,63,511/- as against Rs.6,50,511/- awarded by the Tribunal.

c) The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realization.

d) The respondent/insurer shall deposit the enhanced compensation amount with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.