Karnataka High Court

Jagannath S/O Muttanna vs Nagaraj S/O Vishwanath Hugar And Anr on 8 January, 2025

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                                                   MFA No. 201943 of 2022




                             IN THE HIGH COURT OF KARNATAKA

                                    KALABURAGI BENCH

                          DATED THIS THE 8TH DAY OF JANUARY, 2025

                                          BEFORE

                            THE HON'BLE MR. JUSTICE C.M. JOSHI

                        MISCL. FIRST APPEAL NO.201943/2022(MV-I)


                   BETWEEN:

                   JAGANNATH S/O. MUTTANNA,
                   AGE: 53 YEARS, OCC: COOK IN SW DEPARTMENT,
                   R/O. H.NO.19-4-406/1, NEAR DENTAL COLLEGE,
                   HUMNABAD ROAD,
                   BIDAR-585401.
                                                             ...APPELLANT
                   (BY SRI BASAVARAJ R. MATH, ADVOCATE)


                   AND:
Digitally signed
by LUCYGRACE
Location: HIGH     1.   NAGARAJ S/O VISHWANATH HUGAR,
COURT OF
KARNATAKA               AGE: MAJOR, OCC: BUSINESS,
                        R/O. BACKCHOUDI,
                        TQ. AND DIST. BIDAR-585401,
                        (OWNER OF MOTORCYCLE BEARING
                        REG. NO.KA.38/R-0814).

                   2.   THE BRANCH MANAGER,
                        NATIONAL INSURANCE CO. LTD.,
                        BRANCH OFFICE,
                        VEERBHADRESHWAR CHAMBERS,
                        DOOR NO.8-10-135/1 AND 1A,
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                                          NC: 2025:KHC-K:83
                                   MFA No. 201943 of 2022




    OPP. NEHARU STADIUM,
    BIDAR-585401.
                                           ...RESPONDENTS


(BY SMT. PREETI PATIL MELKUNDI, ADV., FOR R2
R1-NOTICE DISPENSED WITH V/O. DTD. 07.02.2024)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS
AND MODIFY THE IMPUGNED JUDGMENT AND AWARD
DATED 01.02.2022 PASSED BY THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC-BIDAR AND MOTOR ACCIDENT CLAIMS
TRIBUNAL, AT BIDAR, IN MVC NO.252/2019.

     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 learned counsel appearing for the appellant and

the learned counsel appearing for respondent No.2.

2. This appeal is filed by the petitioner in MVC

No.252/2019 being aggrieved by the judgment and award

dated 01.02.2022 passed by the II Additional Senior Civil

Judge and MACT, Bidar, (for short 'Tribunal'), seeking

enhancement of compensation.

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3. The factual matrix of the case is as below:

a) While the appellant/petitioner was riding his

motorcycle on 03.07.2018 from Kannadambe Chowk

towards Naubad at Bidar, near Nehru Stadium another

motorcycle bearing No.KA-38/R-0814 came from

opposite direction in rash and negligent manner and

caused the accident by colliding with the vehicle of the

petitioner. As a result, petitioner sustained injuries and

immediately he was shifted to the hospital, where he

had undergone surgeries by admitting in to the hospital

as inpatient from 04.07.2018 to 08.07.2018. Hence,

petitioner claims compensation on account of the

injuries sustained by him as against the owner and

insurer of the offending motorcycle.

b) On issuance of notice, the owner of the

offending vehicle remained ex-parte, but, the

Insurance Company contested the matter by

contending that the compensation claimed is highly

exorbitant, un-imaginary and untenable and that the

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negligence was on the part of the petitioner himself,

therefore, the Insurance Company is not liable to pay

the compensation.

c) The Tribunal on the basis of the contentions

of both the parties, framed appropriate issues.

Petitioner was examined as PW1 and the Medical

Officer, who assessed the disability, was examined as

PW2. Exs.P1 to P45 were marked in evidence.

Respondent No.2 examined its Officer as RW1 and

Exs.R1 and R2 were marked. After hearing both sides

and after appreciating evidence on record, the Tribunal

has awarded the compensation under different heads

as below:

1 Loss of future income `1,32,000-00 2 Pain and suffering `30,000-00 3 Medical Expenses `1,00,786-00 4 Loss of income during `20,000-00 laid-up period 5 Food and nourishment, `10,000-00 conveyance & attendant charges 6 Loss of future amenity `30,000-00

TOTAL `3,22,768/-

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4. Being aggrieved by the said judgment, the

petitioner is before this Court in this appeal.

5. On the appeal being admitted, the Trial Court

Records have been secured, the notice to respondent No.1

dispensed with and respondent No.2 has appeared through

its counsel.

6. Learned counsel appearing for the appellant

would submit that at the time of accident the petitioner was

aged about 51 years, working as a Cook and he suffered the

fracture of bilateral parietal bone, fracture of left temporal,

fracture of left mastoid bone, fracture of left clavicle and

fracture of right tibial condyle. The said injuries have

resulted in disability to the extent of 32% as opined by the

PW2 and therefore it is contended that the functional

disability assessed by the Tribunal at 10% is abysmally low

and not proper. He further contends that the compensation

awarded under the other heads is also on the lower side,

hence, seeks enhancement of the compensation.

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7. Per contra, learned counsel appearing for

respondent No.2 would submit that the disability assessed by

the PW2 being 32%, the 1/3 of the same has been taken by

the Tribunal i.e., 10% and no fault can be found in respect of

the same. She further submit that the appellant though had

contended that he was working as a Cook on salary of

`30,000 per month, had not produced any document in

support of the same. Therefore, she submits that the

notional income considered by the Tribunal is proper and

correct.

8. On perusal of the Trial Court Records it appears

that the petitioner had sustained injuries to his head as well

as fracture to the tibia of the right leg. In fact, PW2

assessed the disability in respect of the right lower limb and

in his opinion it was to the extent of 32%. It is pertinent to

note that the petitioner was working as a Cook in the hostel,

where the nature of the work requires the manual lifting of

the heavy utensils. This definitely requires a physical

exertion and therefore the assessment of the functional

disability by the Tribunal appears to be slightly on the lower

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side. In the considered opinion, the disability of 12% would

be proper and correct.

9. The guidelines issued by the Karnataka State

Legal Services Authority in respect of settlement of the

disputes before the Lok Adalat prescribe the notional income

of `11,750/- for the year 2018. In umpteen number of

decisions, this Court has held that the guidelines issued by

KSLSA are held to be acceptable on the ground that they are

in general conformity with the minimum wages fixed under

the Minimum Wages Act. Therefore, the notional income of

the petitioner is accepted as `11,750/- per month. Thus, the

loss of future income is calculated as `11,750/- x 12 x 11 x

12% that equals to `1,86,120/- by adopting a multiplier of

'11' for the appellant being aged 51 years.

10. Consequently, the loss of income during the laid

up period is calculated as `11,750 x 3 months, that equals to

`35,250/-.

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11. The Tribunal has awarded a sum of `30,000/-

towards pain and suffering and considering the number of

fractures suffered by the appellant it would be just and

proper to award a sum of `40,000 under this head.

12. The Tribunal has considered has the loss of

amenities at `30,000/-, the same requires to be enhanced to

`40,000/-. The compensation awarded under remaining

heads does not require any interference. Hence, the

appellant is entitled for total compensation of `4,42,130/- as

against `3,22,768/- awarded by the Tribunal, as below:

  Sl.        Head              Award by the           Award by
  No.                            Tribunal             this Court
   1  Loss    of        future  `1,32,000/-          `1,86,120/-
      income

   2     Pain and suffering             `30,000/-     `40,000/-

   3     Medical Expenses              `1,00,786/-   `1,00,786/-

   4     Loss     of   income           `20,000/-     `35,250/-
         during laid-up period

   5     Food            and            `10,000/-     `10,000/-
         nourishment,
         conveyance        &
         attendant charges

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   6      Loss    of       future          `30,000/-     `40,000/-
          amenity
                          TOTAL           `3,22,768/-   `4,12,156/-

There will be enhancement of `89,370/-.

13. It is pertinent to note that the Tribunal has fixed

the contributory negligence on the part of the petitioner at

50%, the same do not require any interference by this Court.

Therefore, the appellant is entitled for 50% of the total

compensation amount as determined above.

14. For the aforesaid reasons, the appeal deserved

to be allowed in part. Hence, the following: