Karnataka High Court

Yellamma W/O Shantappa @ Shantkumar ... vs Ashok S/O Revanasiddappa Malge And Ors on 6 January, 2025

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                                                    MFA No. 201149 of 2018




                             IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 6TH DAY OF JANUARY, 2025

                                           BEFORE
                             THE HON'BLE MR. JUSTICE C M JOSHI

                        MISCL. FIRST APPEAL NO.201149 OF 2018 (MV-I)
                   BETWEEN:

                   1.   YELLAMMA W/O SHANTAPPA @ SHANTKUMAR
                        BULAKE,
                        AGE: 34 YEARS, OCC: LABOUR NOW NIL,
                        R/O: VILLAGE ROLLAWADI, TQ: BASAVAKALYAN,
                        DIST: BIDAR.
                                                               ...APPELLANT

                   (BY SRI. SANJEEVKUMAR C PATIL, ADVOCATE)

                   AND:

                   1.   ASHOK S/O REVANASIDDAPPA MALGE,
                        AGE: 42 YEARS, OCC: DRIVER OF MAHINDRA
                        MAXMO VEHCILE BEARING REG.NO.KA-56/0912,
Digitally signed
by LUCYGRACE            R/O: VILLAGE CHIKNAGAON, TQ: BASAVAKALYAN,
Location: HIGH          DIST: BIDAR-586101.
COURT OF
KARNATAKA          2.   SHARANAPPA S/O SIRGAPPA HIREDODDI,
                        AGE: MAJOR, OCC: OWNER OF MAHINDRA MAXMO
                        VEHICLE BEARING REG.NO.KA-56/0912
                        R/O: VILLAGE CHIKNAGAON, TQ: BASAVAKALYAN,
                        DIST: BIDAR-586101.
                   3.   SUBHASH S/O KASHAPPA CHINCHANSURE
                        AGE: MAJOR, OCC: BUSINESS AND OWNER OF
                        MINIDOR TUM TUM VEHICLE
                        BEARING REG.NO.KA-39/0938
                        R/O: VILLAGE YERANDI, TQ: BASAVAKALYAN,
                        DIST: BIDAR-586101.
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                                   MFA No. 201149 of 2018




4.   THE DIVISIONAL MANAGER,
     UNITED INDIA INSURANCE COMPANY LTD.,
     DR. JAWALI COMPLEX, SUPER MARKET,
     KALABURAGI-585101.




                                             ...RESPONDENTS


(BY SRI. NARENDRA M. UDNOOR AND
SRI. MANJUNATH GINNI, ADVOCATES FOR R1,
BY SRI. SANJEEV PATIL, ADVOCATE FOR R2
R3 SERVED
BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R4)


      THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR

VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT AND

AWARD    DATED:   02.12.2017   PASSED   BY   THE   II   ADDL.

DISTRICT AND SESSIONS COURT AND ADDL. MACT BIDAR,

SITTING AT BASAVAKALYAN IN M.V.C.NO.344/2016 AND FIXED

THE ENTIRE LIABILITY ON RESPONDENT NO.4 TO PAY THE

COMPENSATION, BY ENHANCING THE COMPENSATION.


      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                        MFA No. 201149 of 2018




CORAM:      HON'BLE MR. JUSTICE C M JOSHI


                       ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

This appeal is filed by the claimant in

MVC.No.344/2016 assailing the judgment and award dated

02.12.2017 by the learned II Addl. District and Sessions

Court and Addl. MACT Bidar, sitting at Basavakalyan.

02. Heard the learned counsel for the appellant,

learned counsel for the respondent No.4.

03. The parties will be referred as per their ranks

before the Tribunal.

04. The factual matrix of the case is that on

23.08.2015 the claimant boarded in a Tum Tum Mahindra

Minidor vehicle bearing No.KA-39-0938 to return to her

village and when the said vehicle was near the land of one

Amrut at Mudbi village, the driver of the said vehicle drove

the same in a rash and negligent manner and hit a

Mahindra Maximo vehicle bearing Reg.No.KA-56-0912

coming from the opposite direction. As a result, the

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claimant and other inmates sustained injuries. The

claimant was shifted to Dr. Kanade Accidental and

Maternity Hospital, Umerga, where she took treatment as

inpatient from 23.02.2015 to 19.04.2015. A criminal case

was also registered in Crime No.12/2015 of Mudabi Police

Station and the drivers of both the vehicles were

prosecuted.

05. Now the claimant is contending that the owner

and insurers of both the vehicles are liable to pay the

compensation and that the compensation awarded by the

Tribunal is abysmally low. The claimant had approached

the Tribunal contending that she is a coolie and earning

Rs.500/- per day and she has suffered disability and as

such, she be compensated. The claimant also contended

that the vehicle in which she was traveling was not having

any valid insurance. On the other hand, the vehicle

bearing Mahindra Minidor bearing Reg.No.KA-39-0938 was

insured.

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06. Respondents No.1 and 2 did not appear before

the Tribunal.

07. The respondent No.3 appeared and contended

that the vehicle was insured by the respondent No.4 and

the negligence was on the part of the respondents No.1

and 2. If at all any compensation is awarded, the same be

fastened upon the respondent No.4.

08. On issuance of notice to respondent No.4 -

insurance company appeared and contended that the

accident was due to the negligence on the part of driver of

Mahindra Maximo bearing Reg.No.KA-56-0912. Therefore,

the liability is to be fastened upon owner of said vehicle.

Inter-alia it was also contended that the liability of the

respondent No.4 is subject to the terms and conditions of

the insurance policy and due compliance of the same by

the respondent No.3.

09. The Tribunal framed the appropriate issues and

the claimant was examined as PW.1 and treated doctor

was examined as PW.2. Exs.P.1 to 101 were marked in the

evidence. The respondents did not lead any evidence.

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10. After hearing both the parties, the Tribunal has

awarded compensation under different heads as below:-

  Sl.                  Heads                  Compensation
                                                Awarded
 No.

 1.      Conveyance, attendance              Rs.3,24,000/-
         charges, nourishment, medical
         bills

 2.      Pain and suffering                  Rs.40,000/-

 3.      Loss of amenities                   Rs.10,000/-

 4.      Income during treatment             Rs.42,000/-

 5.      Loss of future income               Rs.1,61,280/-

         Total compensation
                                             Rs.5,77,280/-

11. Assessing the above compensation, the liability

was fastened upon the respondents No.2 and 4 at the ratio

of 50% each.

12. Being aggrieved by the quantum of the

compensation, the claimant has approached this Court in

appeal.

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13. The learned counsel for the claimant would

submit that the Tribunal failed to assess the functional

disability of the claimant, even though PW.2 had stated

that the disability was to the extent of 68%. It is

contended that the claimant was aged 33 years and she

was a coolie. She has suffered sever injuries, as such

compensation is abysmally low.

14. Per contra, the learned counsel appearing for

respondent No.4 submits that the compensation awarded

by the Tribunal is justifiable and no interference is

required.

15. On perusal of the wound certificate, the

disability certificate as well as the medical records would

show that the petitioner had suffered fracture of right tibia

and fibula, fracture of left tibia and fibula, fracture of

mandible, fracture of right symphysis pubis, traumatic

amputation of great toe 2nd toe fracture of 3rd and 4th toe

of right side, degloving injury over right lower limb with

foot.

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16. The evidence also shows that she was inpatient

from 23.02.2015 to 19.04.2015 and still she suffers from

the injuries. The testimony of the PW.2 would show that

he was a treated doctor and he opined that there is non

healing wound and bad scanning and she is having

permanent physical disability to the extent of 68%. A non

healing wound coupled with the deformities as may be

found from the photographs at Ex.P.91 to 95 would clearly

indicate that there is a auto amputation of the toes and

there is a crush and degloving injuries of the foot.

Definitely, this would result in fusion of the ankle joint

resulting in the disability and the functional disability has

to be assessed with respect to the physical disability and

the avocation of the claimant. Obviously, the Tribunal

considering the physical disability at 68%, it jumped to the

conclusion that functional disability is only 12%. The

correlation between the functional disability and the

physical disability has not been properly considered by the

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Tribunal. Having the occupation of the claimant in view

and also her age, it would be proper to assess the

functional disability of the claimant at 40%. Definitely, the

injuries suffered by her would result in gait and

impediment in walking, which is essential for her

avocation.

17. The guidelines issued by the Karnataka State

Legal Services Authority (KSLSA) for settlement of

disputes before the Lok-Adalat prescribed a notional

income of Rs.8,000/- for the year 2015. In umpteen

number of decisions, this Court has held that the

guidelines issued by the KSLSA is in general conformity

with the wages fixed under the Minimum Wages Act.

Therefore, by adopting the notional income of Rs.8,000/-

and functional disability of 40%, loss of future income is

calculated as Rs.8,000/- x 12 x 16 x 40% =

Rs.6,14,400/- by adopting a multiplier of 16.

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18. Consequently, the loss of income during

treatment period is calculated as Rs.8,000/- x 6 =

Rs.48,000/-.

19. So far as compensation under the head of pain

and suffering is concerned, having in view the nature of

injuries sustained, the same is enhanced to Rs.80,000/-.

20. The Tribunal has awarded a sum of Rs.10,000/-

towards loss of amenities in life. Obviously, the claimant

has to suffer with a non healing wound and therefore, the

loss of amenities is enhanced to Rs.60,000/-.

21. The Tribunal has awarded a sum of

Rs.3,24,000/- towards medical and conveyance etc.,

The same need not be disturbed. Hence, the claimant is

entitled for the same.

22. Therefore, the claimant is entitled for total

enhancement compensation of Rs.11,26.400/- under the

following heads :-

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Sl. Heads Compensation Awarded by this Court No.

1. Loss of future income Rs.6,14,400/-

2. Loss of income during Rs.48,000/-

treatment period

3. Pain and suffering Rs.80,000/-

4. Loss of amenities Rs.60,000/-

5. Medical Bills and Rs.3,24,000/-

         conveyance

         Total                        Rs.11,26,400/-

         Less: awarded by             Rs.5,77,280/-
         Tribunal

         Total enhancement            Rs.5,49,120/-

23. Hence, appeal deserved 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 by awarding a sum of

Rs.5,49,120/- in addition to what has been awarded

by the Tribunal together with interest at the rate of

6% p.a. from the date of petition till its deposit

before the Tribunal.

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