Karnataka High Court
The Branch Manager vs Ramesh And Anr on 4 February, 2025
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MFA No. 200552 of 2020
IN THE HIGH COURT OF KARNATAKA,
R
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200552 OF 2020 (MV-I)
BETWEEN:
THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE, BIDAR,
(NOW BY DULY CONSTITUTED ATTORNEY,
REGIONAL OFFICE, PINTO ROAD, HUBLI).
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
1. RAMESH S/O VISHWANATH DAVKATTE,
AGE: 50 YEARS, OCC: SOCIAL WORKER AND
Digitally
AGRICULTURE,
signed by
LUCYGRACE R/O: AURAD-B,
LUCYGRACE Date:
2025.02.06
10:47:40 -
TQ. AURAD-B, DIST. BIDAR-585 401.
0800
2. SHIVAJI S/O GURUNATH BOGAR,
AGE: MAJOR, OCC: BUSINESS AND AGRICULTURE,
R/O: H.NO.5-75, AURAD-B, PROPER,
DIST. BIDAR-585 401.
...RESPONDENTS
(BY SRI. SANDEEP V. PATIL, ADV. FOR R1;
V/O DTD. 22.01.2025, NOTICE TO R2 IS DISPENSED WITH)
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MFA No. 200552 of 2020
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE
APPEAL BY SETTING ASIDE THE IMPUGNED JUDGMENT AND
AWARD DATED 16.09.2019 IN MVC.NO.157/2016 PASSED BY
THE SENIOR CIVIL JUDGE AND JMFC AND MACT, AT AURAD-B.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel for the appellant and the
learned counsel for the respondent No.1.
02. Being aggrieved by the judgment and award in
MVC.No.157/2016 by the learned Senior Civil Judge and
JMFC and MACT, Aurad-B, the insurance company is
before this Court in appeal.
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03. The factual matrix of the case are that on
27.11.2015 at 11:30 p.m. the driver of the Bolero Jeep
bearing Reg.No.KA-38-M-2752 drove the said vehicle in
high speed and negligent manner and lost control over the
said vehicle and made it to fall into a ditch by the side of
the road. The petitioner who was an inmate of Jeep, had
suffered grievous injuries like fracture of femur, radius and
ulna. He was shifted to Government Hospital, Aurad.
Thereafter, to higher facilities at Bidar, then again he was
sent to Hyderabad for further treatment at Max Cure,
Hospital. The police registered a case in crime
No.234/2015 and investigation was conducted. The
petitioner contended that he was an agriculturist having
landed properties and had a monthly income of
Rs.25,000/-; due to the accidental injuries, he is unable to
perform as before. Therefore, there is a functional
disability to the petitioner and sought an appropriate
compensation from the owner and insurer of the vehicle.
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04. The petition was resisted by the respondent
No.2 - insurance company alone. The respondent No.1
remained ex-parte. The respondent No.2 - insurance
company contended that the Bolero Jeep was permitted
for personal use, but the petitioner had boarded the same
as a fare paying passenger. Therefore, there is violation of
terms and conditions of the policy. Moreover, the effective
and valid driving license was also not held by the driver of
the Jeep. Inter-alia it also contended that the
compensation claimed is exorbitant, imaginary and
untenable in law. The age, income and occupation of the
petitioner was also denied.
05. On the basis of the above contentions, the
Tribunal framed the following issues:-
I. Whether petitioner prove that on 27.11.2015
petitioner and Vinayak Jagadale were traveling in
Bolero Jeep bearing No.KA-38-M-2752 from Gulbarga
to Aurad, at about 11.30 p.m. on Aurad-Boral road,
near bridge, driver of said jeep drove vehicle in rash
and negligent manner, lost control over the vehicle,
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in result the vehicle fell into a big ditch and in the
accident, the petitioner has suffered grievous and
fatal injures to both hands, legs, chest and forehead
as stated in the petition.?
II. Whether the petitioner proves his age and income.?
III. Whether petitioner is entitled for compensation.? If
so what is the quantum and from whom.?
IV. Whether respondent No.2 proves that owner of the
vehicle has violated policy condition and used the
vehicle for commercial purpose.?
V. Whether respondent No.2 proves that owner of
vehicle has violated Sec. 180, 149(C), 136(6) of IMV
Act.?
VI. What order or award.?
06. The petitioner was examined as PW.1 and one
witness was examined as PW.2 and Ex.P.1 to Ex.P.36 were
marked on behalf of the petitioner. No evidence was led by
the respondents.
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07. The Tribunal answering issue Nos.1 to 3 in the
affirmative and issue Nos.4 and 5 in the negative,
proceeded to award the compensation of Rs.10,11,000/-
under the following heads :-
Sl. Heads Compensation
No. Awarded
1. Towards pain and sufferings Rs.25,000/-
2. Medical Expenses Rs.50,000/-
(as Global Medical Expenses in
all)
Loss of income Towards partial
3. disablement of 20% Rs.72,000 Rs.9,36,000/-
multiplier by 13
Total Rs.10,11,000/-
08. Being aggrieved by the same judgment, the
insurance company is before this Court in appeal.
09. The learned counsel appearing for the appellant
would submit that the impugned judgment is illegal,
incorrect, perverse, arbitrary and without application of
judicious mind. It is submitted that the impugned
judgment and award is mechanical. The Tribunal has
confused itself as to whether there should be 1/3rd
deduction towards personal expenses. Therefore, the
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impugned judgment does not make a proper meaning. It
is contended that the Tribunal though says that 1/3rd has
to be deducted towards personal expenses, it multiplied
the compensation by applying the multiplier of 13.
Therefore, it is contended that the entire calculation of the
compensation amount by the Tribunal is totally erroneous.
The compensation under the relevant heads are also not
assessed by it. Therefore, the learned counsel for the
appellant sought for a re-assessment of the compensation
amount.
10. Per contra, the learned counsel appearing for
the petitioner has supported the impugned judgment and
has tried to defend the quantum of the compensation
awarded.
11. The perusal of the impugned judgment of the
Tribunal would show that nowhere in the entire judgment,
the nature of the injuries suffered by the petitioner is
described. It is relevant to note that the impugned
judgment refers to the injuries as grievous injuries, but it
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nowhere mentioned what are those grievous injuries,
which of them have contributed to the functional disability
of the petitioner. Therefore, the basis on which the
disability was assessed is not available in the judgment.
Further, it is worth to note that the Tribunal reiterated the
deposition of PW.1, but in Para No.20 it holds that the
notional income is held to be Rs.9,000/- per month, which
is Rs.1,08,000/- per annum. Then it deducts 1/3rd from
the same and therefore yearly income is calculated at
Rs.72,000/-. It is not known why this 1/3rd has been
deducted. While considering Ex.P.34 - disability certificate
issued by PW.2, it only narrates what has been stated by
PW.2, but abruptly it comes to the conclusion that it has
no hesitation to hold that the disability to the limb is 20%,
even though PW.2 states that it is 31%. While considering
the issue No.3 regarding calculation, the Tribunal awards a
sum of Rs.25,000/- towards pain and suffering,
Rs.50,000/- towards medical expenses and calculates the
loss of income as Rs.72,000/- x 13, which comes to
Rs,10,11,000/-. It is worth to note that the operative
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portion of the order is also for Rs.10,11,000/-. In other
words, it is not known how the calculation of
Rs.10,11,000/- is arrived when Rs.72,000/- is multiplied
by 13.
12. Thus, it is evident that the Tribunal has not
applied its mind and I find considerable force in the
argument of the learned counsel for the appellant.
13. A perusal of the deposition of PW.2 - medical
officer coupled with the wound certificate produced at
Ex.P.4 and the discharge summary at Exs.P.10 and 11
would show that the petitioner had sustained compound
Grade-I communitted intra articular fracture of radius,
ulna lower 1/3rd fracture on the right forearm and he was
treated with closed reduction internal fixation with wire
fixation and conservative mode treatment for right ulna
was adopted. The petitioner was discharged with POP slab
applied and he was in patient for a period from
28.11.2015 to 01.12.2015. The second discharge
summary at Ex.P.11 would show that there was deformity
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in the right ulna and there was a non-union. Therefore, he
was again admitted to the hospital and open reduction
internal fixation was done with tubular plate. He was
inpatient for one day.
14. It is pertinent to note that when the nature of
the injuries suffered by the petitioner is considered in the
light of the deposition of the PW.2, it can safely be said
that there is a functional disability of 20%. The petitioner
had sustained a non-union and as such the physical
disability stated by PW. 2 at 31% can be held to translate
into the functional disability of 20%.
15. The petitioner claims that he was an
agriculturist, but he has not produced any documentary
evidence to prove his income. Therefore, the notional
income has to be considered.
16. The guidelines issued by the KSLSA for
settlement of disputes before Lok-Adalath prescribe a
notional income of Rs.8,000/- per month for the year
2015. In umpteen number of judgments, this Court has
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held that the guidelines issued by the KSLSA are in
general conformity with the wages fixed under the
Minimum Wages Act. Therefore, they are acceptable.
Hence, the notional income of the petitioner is considered
at Rs.8,000/-.
17. Therefore, the compensation under the head of
loss of future earning is calculated as Rs.8,000/- x 12 x
20% x 14 = Rs.2,68,800/- by applying the multiplier 14
for the age of 44 years.
18. The petitioner having suffered the above
fractures, he is entitled for compensation of Rs.25,000/-
under the head of pain and suffering.
19. The petitioner has produced medical bills at
Ex.P.12 for Rs.58,000/-, Ex.P.13 for Rs.38,512/-, Ex.P.16
for Rs.440/-, total for worth of Rs.96,952/-. The bills at
Ex.p.14, 15, and 17 are advance bills and as such they are
excluded. Hence, the petitioner is entitled for Rs.97,000/-
under the head of medical expenses.
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20. In the light of the nature of the injuries, it can
be safely said that he was unable to resume his work for
03 months. Hence, loss of income during laid up period, is
calculated Rs.8,000/- x 3 = 24,000/-.
21. The petitioner is also entitled for a sum of
Rs.25,000/- under the head of loss of amenities in life.
22. The petitioner is also entitled for a sum of
Rs.15,000/- under the head of conveyance, nourishment,
attendant charges etc.,
23. Therefore, the petitioner is entitled for total
compensation of Rs.4,54,800/- under the following
heads:-
Sl. Heads Compensation Awarded
No. by this Court
1. Loss of future income Rs.2,68,800/-
2. Pain and suffering Rs.25,000/-
3. Medical expenses Rs.97,000/-
4. Loss of income during Rs.24,000/-
the laid up period.
5. Loss of amenities Rs.25,000/-
6. Towards conveyance, Rs.15,000/-
nourishment
attendant charges
etc.,
Total Rs.4,54,800 /-
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24. Before parting with this judgment, it is
necessary to note that, the nature of the injuries suffered
by the petitioner has not been properly considered by the
Tribunal in the impugned judgment. In umpteen numbers
of judgments of the Tribunals, this Court observes that the
nature of the injuries and the manner how it would
translate into functional disability are seldom discussed.
The Tribunals are jumping to the conclusion on the basis
of the disability stated by a medical officer. A non
mentioning of the nature of the injuries suffered; or
describing them simply as grievous or simple; would not
reflect that the Tribunals had applied their mind to the
nature of the injuries. Therefore, it is expected from the
Tribunals that the nature of the injuries suffered and the
manner how it will translate into functional disability is to
be stated, in the facts and circumstances, especially with
reference to the avocation of the petitioner. It is also
obvious that the medical officers would give their opinion
in respect of the physical disability, but they are not
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capable of giving the functional disability as the avocation
of the injured is not brought before them. These aspects
have been elaborately discussed by the Honb'le Apex court
in the case of Raj Kumar vs. Ajay Kumar and another1.
In a recent judgment in the case of Sidram vs.
Divisional Manager, United India Insurance
Company2, the Apex Court of the Country has again
reiterated and discussed these requirements. Therefore, it
is necessary that the officers who are manning the
Tribunals are to be sensitized with the requirement of
mentioning the nature of the injuries suffered by the
injured in the judgments. Without the description of
injuries and co-relating it to the disability, it is not possible
to infer that the Tribunals had applied their mind to assess
the functional disability.
25. Hence, appeal deserves to be allowed in part.
Therefore, the following;
(2011) 1 SCC 343
2023 (3) SCC 439
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ORDER
I. The appeal is allowed in part.
II. The appellant is entitled for a sum of Rs.4,54,800/-
instead of Rs.10,11,000/- for the total compensation
along with interest at the rate of 6% p.a. from date
of petition till the date of deposit.
III. Rest of the order passed by the Tribunal regarding
deposit etc., remain unaltered.
Registry to send a copy of this judgment to the
Karnataka Judicial Academy for information in devising
training programmes.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
