Karnataka High Court
Jakavva W/O Sahebgouda Kondaguli vs Ashok S/O Babugouda Patil And Ors on 4 March, 2025
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NC: 2025:KHC-K:1423
MFA No. 200368 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
MISCL. FIRST APPEAL NO.200368/2020(MV-I)
BETWEEN:
JAKAVVA W/O SAHEBGOUDA KONDAGULI,
AGE: 55 YEARS, OCC: COOLIE,
R/O KAGGOD,
TQ. & DIST. VIJAYAPURA-586 103.
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
Digitally signed
by SHIVALEELA
DATTATRAYA
UDAGI 1. ASHOK S/O BABUGOUDA PATIL,
Location: HIGH
COURT OF AGE: MAJOR, OCC: OWNER OF THE VEHICLE,
KARNATAKA
R/O H.NO. 24, BEHIND PWD, SINDAGI,
DIST. VIJAYAPURA-586 128.
2. GANANESHWAR ,
AGE: MAJOR, OCC: OWNER OF THE VEHICLE,
(POLICY HOLDER),
R/O H.NO.E/5/217,
SHIVAJI NAGAR,
KALABURAGI-585 101.
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MFA No. 200368 of 2020
3. THE MANAGER,
THE TATA AIG GENERAL INSURANCE COMPANY
LTD., REGD. OFFICE PENINSULA BUSINESS PARK,
TOWER A, 15TH FLOOR
GANPATRAO KADAM MARG,
OFF SENAPATI BAPAR MARG,
LOWER PAREL,
MUMBAI-400 013
(MAHARASHTRA STATE).
...RESPONDENTS
(BY SRI SANJAY M. JOSHI, ADV., FOR R3 [ABSENT];
R1 & R2 - NOTICE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 23.01.2019
PASSED IN MVC NO.1081/2014 ON THE FILE OF THE COURT
OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR
ACCIDENT CLAIMS TRIBUNAL NO.XII, VIJAYAPURA, AT
VIJAYAPURA AND ALLOW THIS APPEAL TO GRANT THE
COMPENSATION AMOUNT BY RS.14,24,500/- ONLY AS
CLAIMED BY THE APPELLANT BEFORE THIS COURT
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)
1. Heard learned counsel appearing for the
appellant. None appears for the respondents.
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2. Being aggrieved by the judgment and award
dated 23.01.2019 passed in MVC No.1081/2014 by the III
Additional Senior Civil Judge and MACT-XII, Vijayapura, the
petitioner is before this Court seeking enhancement of the
compensation amount.
3. The factual matrix of the case is as below:
a) On 11.07.2013 when the petitioner was
traveling in the Tempo-Trax bearing No.KA-35/5802
owned by respondent Nos.1 and 2 and insured with
respondent No.3, the said vehicle turned turtle by the
side of the road, resulting in the petitioner suffering
fracture of right clavicle and few other minor injuries.
She was shifted to Dr. S.M. Managuli Hospital at
Sindagi and thereafter to the hospital of PW2 at Miraj.
It is contended that the accident being on account of
the negligence of the driver of the Trax, the owner and
insurer are liable to pay the compensation to the
petitioner.
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b) Being served with the notice, respondent
Nos.1 and 2 did not appear before the Tribunal and as
such, they were placed ex-parte. Respondent No.3
appeared and resisted the petition and denied
negligence on the part of the driver of the vehicle and it
also denied the age, income and occupation of the
petitioner. It was contended that there was violation of
the terms and conditions of the policy and the
compensation claimed is highly exorbitant.
c) Based on the contentions of the parties, the
Tribunal framed appropriate issues and the petitioner
was examined as PW1, and the Doctor who assessed
disability of the petitioner was examined as PW2.
Exs.P1 to P14 were marked in evidence in support of
the petition. No oral or documentary evidence is led on
behalf of the respondents.
d) After hearing the parties, the Tribunal
awarded compensation of Rs.25,000/- under different
heads as below:
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1 Injury, pain and sufferings Rs.3,000/-
2 Medical expenses Rs.4,754/-
3 Loss of income due to Rs.11,700/-
permanent physical
disability
4 Food and nourishment Rs.1,000/-
5 Attendant's charges Rs.1,000/-
6 Conveyance charges Rs.1,000/-
7 Loss of amenities and Rs.3,000/-
future unhappiness
Total Rs.25,454/-
Rounded to Rs.25,500/-
4. Aggrieved by the quantum of compensation
awarded by the Tribunal the petitioner is in this appeal.
5. Learned counsel appearing for the appellant-
petitioner submits that the PW2 has stated that there is
disability of 35% to the right upper limb and the Tribunal has
considered the disability at 5%, which is incorrect. He also
contends that the petitioner is a lady aged about 50 years
and doing agricultural work, therefore, the functional
disability of the petitioner should have been held on the
higher side. He also contends that that the compensation
awarded under remaining heads is also incorrect. Inter alia
it is submitted that the notional income considered by the
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Tribunal is also on the lower side. It is submitted that there
is need of re-assessment and enhancement of the
compensation.
6. A perusal of the records would show that the
petitioner had suffered fracture of the right clavicle as
mentioned in the Wound Certificate - Ex.P5. The Discharge
Summery produced at Ex.P12 would show that the petitioner
was treated as inpatient for fracture in Orthopedic Hospital,
Miraj from 12.07.2013 to 15.07.2013. The Discharge
Summery also shows that the fracture of the right clavicle
was treated conservatively and no surgeries were done. It is
also pertinent to note that the testimony of PW2 runs
contrary to Ex.P12 - Discharge Summery, since he states
that there was surgery also. In the absence of any surgery
and when the treatment was conservative, it is difficult to
accept the argument of the learned counsel appearing for the
appellant that disability assessed by PW2 at 35% has not
been properly considered by the Tribunal. The Tribunal in its
wisdom has assessed the same at 5%. The petitioner being
aged 50 years and being an agricultural labourer had
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fracture of the right clavicle and it was treated conservatively
and as such, contention of the permanent disability of more
than 15% as argued cannot be accepted. In the considered
opinion of this Court, the disability of 5% assessed by the
Tribunal is just and proper.
7. Insofar as income of the petitioner is concerned,
the Tribunal has assessed the same at Rs.1,500/- per
month. The accident having occurred in the year 2013, the
monthly income of Rs.1,500/- assessed by the Tribunal is
absurd and unsustainable in law. It appears that the
Tribunal has not at all considered the Minimum Wages Act,
the wages under the NAREGA or any such contemporary
material which was available at large. The assessment of
the monthly income at Rs.1,500/- per month is nothing but a
pittance which cannot sustain in the eyes of law. The
Tribunal should have more vigilant and should have used its
wisdom in accepting the notional income.
8. The guidelines issued by the Karnataka State
Legal Services Authority (KSLSA) for settlement of the
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disputes before the Lok Adalat prescribe the notional income
of Rs.7,000/- for the year 2013. 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 appellant-petitioner is accepted as Rs.7,000/- per month.
Accordingly, the loss of future income on account of
permanent disability is assessed at Rs.7,000/- x 12 x 5% x
13 = Rs.54,600/-, by adopting multiplier of '13' for the age
of 50 years.
9. Consequently, the loss of income during laid up
period is calculated as Rs.7,000/- x 2 = Rs.14,000/-.
10. The Tribunal has awarded a sum of Rs.3,000/-
towards pain and suffering and considering the nature of
injuries and treatment, a sum of Rs.15,000/- is awarded to
her under this head.
11. The appellant being aged 50 years, would suffer
for rest of the life and therefore, it would be just and proper
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to award Rs.20,000/- under the head loss of amenities in
life.
12. The compensation awarded under remaining
heads does not require any indulgence by this Court.
Accordingly, the appellant-petitioner is entitled for total
compensation of Rs.1,11,354/- as below as against
Rs.25,500/- awarded by the Tribunal:
Sl. Heads Award by the Award by this
No. Tribunal Court
1 Injury, pain and Rs.3,000/- Rs.15,000/-
sufferings
2 Medical expenses Rs.4,754/- Rs.4,754/-
3 Loss of income due to Rs.11,700/- Rs.54,600/-
permanent physical
disability
4 Food and nourishment Rs.1,000/- Rs.1,000/-
5 Attendant's charges Rs.1,000/- Rs.1,000/-
6 Conveyance charges Rs.1,000/- Rs.1,000/-
7 Loss of amenities and Rs.3,000/- Rs.20,000/-
future unhappiness
8 Loss of income during -- Rs.14,000/-
laid up period
Total Rs.25,454/- Rs.1,11,354/-
Rounded to Rs.25,500/-
Less: Award by the Tribunal Rs.25,500/-
Total enhancement Rs.99,854/-
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13. In the result, the appeal deserves to be allowed
and hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award
passed by the Tribunal is hereby modified.
(iii) The appellant is entitled for a sum of
Rs.99,854/- with interest at the rate of 6% per
annum from the date of petition till realization in
addition to what has been awarded by the
Tribunal.
(iv) The respondent No.3 - Insurance
Company is directed to deposit the enhanced
compensation along with interest within a period
of 06 weeks from the date of receipt of a copy of
this judgment.
Sd/-
(C.M. JOSHI)
JUDGE
SBS
CT: AK
