Karnataka High Court
Smt. Anjana vs Shree Hatkeshwara Cargo Movers And Anr on 24 February, 2025
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NC: 2025:KHC-K:1260
MFA No. 200967 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200967 OF 2021 (MV-I)
BETWEEN:
SMT. ANJANA W/O ASHOK BANDAGAR,
AGE: 27 YEARS, OCC: HOUSEWIFE,
AGRI. COOLI, NOW NIL,
R/O UDACHANHATTI VILLAGE,
TQ. AFZALPUR, DIST. KALABURAGI,
NOW AT PLOT NO.8, BANK COLONY,
KARUNESHWAR NAGAR, KALABURAGI.
...APPELLANT
(BY SRI. NAGARAJ PATIL, ADVOCATE)
AND:
Digitally signed
by 1. SHREE HATKESHWARA CARGO MOVERS,
LUCYGRACE
Location: HIGH
NO.205, MANGALWARPET, BHOR,
COURT OF
KARNATAKA
TQ. BHOR, DIST. PUNE-412 206,
OWNER OF TANKER BEARING
NO.MH-12/PQ-9035.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
SANGAMESHWAR COLONY,
S.B. TEMPLE ROAD, KALABURAGI-585 102.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2;
V/O DTD. 11.11.2021, NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 200967 of 2021
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 13.01.2021 PASSED IN MVC NO.760/2019
ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE AND MEMBER,
MACT, KALABURAGI AND ALLOW THIS APPEAL BY ENHANCING
THE COMPENSATION AMOUNT OF RS.8,12,500/- ONLY AS
CLAIMED BY THE APPELLANT.
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 appearing for the
appellant and the learned counsel for respondent No.2.
2. This appeal is directed against the judgment
and award dated 13.01.2021 passed in MVC No.760/2019
by the learned II Additional Senior Civil Judge and
Member, MACT, Kalaburagi (hereinafter referred to as 'the
Tribunal' for short).
3. By the impugned judgment and award, the
Tribunal has allowed the claim petition in part and
awarded a sum of Rs.6,97,500/- as compensation and
directed the Insurance Company to deposit the same.
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Aggrieved by the said judgment and award, the petitioner
is before this Court, seeking enhancement of
compensation contending that the quantum of
compensation awarded by the Tribunal is on the lower
side.
4. The factual matrix of the case is that, on
26.04.2019 while the petitioner was proceeding on a
motorcycle bearing No.KA.32.ER.9549 along with her
husband, she met with an accident with a tanker bearing
No.MH.12/PQ.9035 and sustained injuries in the said
accident.
5. The factum of the accident and involvement of
the tanker lorry owned by respondent No.1 and insured by
respondent No.2 is not in dispute. The insurance coverage
to the said vehicle is also not dispute.
6. The petitioner claiming that she is aged about
25 years and earning Rs.15,000/- per month by working
as an agricultural coolie, filed a claim petition, seeking
adequate compensation, since she suffered permanent
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disability on account of the fracture of radius, ulna and
fracture of the occipital bone and 5th metacarpal. In order
to assess the disability, the testimony of PWs.2 and 3 was
let in before the Tribunal.
7. The Tribunal, after hearing the arguments by
both sides and on perusal of the records has assessed the
notional income of the petitioner at Rs.13,250/- per month
and the disability at 15% and thereby awarded a
compensation of Rs.6,97,500/- under different heads as
below:
Towards injury pain and suffering Rs. 40,000/-
Towards medical expenses Rs.1,56,300/-
Towards future medical expenses Rs. 10,000/-
Towards food and extra nourishment Rs. 5,400/-
and medical attendant
Towards conveyance Rs. 10,000/-
Towards loss of income during Rs. 26,500/-
treatment
Towards permanent disability Rs.4,29,300/-
Deprivation of future amenities Rs. 20,000/-
Total compensation Rs.6,97,500/-
8. The learned counsel appearing for the petitioner
contends that the Tribunal has not assessed the disability
in a proper manner. The disability arising out of the
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fractures of the upper limb and the disability occurred due
to the head injury should have been considered by it, but
on the other hand, it only considered 15% as the
functional disability. Therefore, there is a need for
enhancement of the compensation. It is submitted that the
disability assessed by PW.2 and PW.3 should have been
added to arrive at an appropriate disability.
9. Per contra, the learned counsel appearing for
the respondent No.2 contends that there is no justification
for the disability being enhanced as claimed by the
petitioner. She contends that PW.2 being the treated
doctor, has assessed physical disability at 30%. The PW.3
being a person who is not qualified to assess the
neurological disability arising out of the head injury, his
evidence has been rightly discarded by the Tribunal. She
also points out that PW.3 has not treated the petitioner at
anytime. So far as the compensation in respect of the
remaining heads, she defends the impugned judgment.
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10. The petitioner aged about 25 years, has
suffered the injuries, which are depicted in the wound
certificate as well as the disability certificate issued by the
PW.2. They observe that when the petitioner was admitted
on 26.04.2019, she had come with the following injuries:-
1) Deep cut lacerated wound in hypothenar region with
laceration of flexor and abductors of little finger and
hypothenar muscles.
2) Fracture of lower radius left.
3) Fracture lower 3rd ulna left.
4) Fracture neck of 5th metacarpal left.
5) Bilateralfrontal bemorrhagic contusion.
11. The records also show that PW.2 treated the
petitioner for the injuries to the left upper limb and he
does not say anything about the head injury. The hospital
records like discharge summary at Ex.P.7 show that the
petitioner had also suffered the head injury and the
opinion of the neurosurgeon was also taken during the
treatment. The petitioner had reported to the hospital with
history of loss of consciousness as well as vomiting. The
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records reveal that the CT Scan of the Brain was taken on
05 occasions during the inpatient treatment to see
whether the head injury, which included bilateral frontal
hemorrhagic contusion is responding to the treatment or
not. The discharge summary also mentions that
conservative method of treatment was adopted.
12. The testimony of the PW.3 coupled with the
disability certificate issued by him at Ex.P.8 would show
that there is deafness in the right ear, the petitioner is
unable to carry weight on the head, there is neck pain and
restricted neck movements and the gait is unstable and
cautious. Though, the PW.3 is not a Neurosurgeon and not
a Doctor Who had treated the petitioner, the observations
made by him are relevant. It is a surprising that even
though the petitioner had examined PW.2 on commission,
nothing is elicited from him about the head injuries
suffered by the petitioner. Similarly, there is nothing in the
testimony of PW.3 and his disability certificate at Ex.P8
about the injuries suffered to the left upper limb. On this
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ground, the learned counsel appearing for the petitioner
submits that the disability stated by PW.2 at 30% and the
disability stated by PW.3 at 37% are to be added.
13. The above submission cannot be accepted for
the simple reason that the Court has to consider the
functional disability, but not the physical disability. The
nature of the difficulties noted by PW.2 in his testimony as
well as the disability certificate at Ex.P.9 and also the
testimony of the PW.3 coupled with the disability
certificate at Ex.P.8 would disclose that there is some
difficulty for the petitioner to do the coolie work. Under
these circumstances, in the considered opinion of this
Court, having given sufficient weight to the testimony of
the PW.2 who is a treated doctor, the functional disability
is assessed at 18%.
14. The notional income considered by the Tribunal
at Rs.13,250/- do not require any reconsideration by this
Court. Therefore, the loss of future income is calculated as
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Rs.13,250/- x 12 x 18 x 18% = Rs.5,15,160/- by adopting
a multiplier of 18 for the age of 25 years.
15. The Tribunal has awarded the compensation of
Rs.26,500/- towards the loss of income during the laid up
period, the same needs to be enhanced for 3 months i.e.,
Rs.13,250/- x 3 = Rs.39,750/-.
16. The Tribunal has awarded a sum of Rs.40,000/-
under the head of pain and suffering, the same needs to
be enhanced to Rs.60,000/-.
17. The PW.2 has stated about the future medical
expenses regarding removal of the implants etc., and
assessed the cost of Rs.28,000/-. Therefore, a sum of
Rs.30,000/- has to be awarded under the head of future
medical expenses.
18. The Tribunal has awarded a sum of Rs.5,400/-
under the head of food and extra nourishment, attendant
charges etc., the same needs to be enhanced to
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Rs.15,000/- considering the fact that she was inpatient for
a period of 12 days.
19. The compensation under the head of loss of
amenities needs to be enhanced to Rs.40,000/-.
20. The Tribunal has awarded reasonable
compensation amount towards medical expenses and
conveyance. The same need not be disturbed.
21. Therefore, the claimant is entitled for the
modified compensation under different heads as below :-
Sl. Heads Compensation
No. Awarded by this
Court
1. Towards loss of future income Rs.5,15,160/-
2. Towards loss of income during Rs. 39,750/-
the laid up period.
3. Towards Pain and suffering Rs. 60,000/-
4. Towards future medical expenses Rs. 30,000/-
5. Towards food and extra Rs. 15,000/-
nourishment and medical
attendant
6. Loss of amenities Rs. 40,000/-
7. Towards medical expenses Rs.1,56,300/-
8. Towards conveyance Rs. 10,000/-
Total Rs.8,66,210/-
Less: Awarded by the Tribunal Rs.6,97,500/-
Total enhancement Rs.1,68,710/-
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Thus, the appellant is entitled for enhanced
compensation of Rs.1,68,710/- with interest.
22. Hence, appeal deserves to be allowed in part.
Therefore, the following;
ORDER
I. The appeal is allowed in part.
II. The impugned judgment and award passed by the
Tribunal is modified.
III. The appellant is entitled for a sum of Rs.1,68,710/-
in addition to what has been awarded by the Tribunal
along with interest at the rate of 6% p.a. from date
of petition till the date of deposit.
IV. Rest of the order passed by the Tribunal regarding
deposit etc., remains unaltered.
Sd/-
(C M JOSHI)
JUDGE
LG,KJJ
