Karnataka High Court
Moulali S/O Khaja Hussain vs Vijay Morde And Anr on 18 March, 2025
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MFA No. 201074 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
MISCL. FIRST APPEAL NO.201074/2019(MV-I)
BETWEEN:
MOULALI S/O KHAJA HUSSAIN,
AGE: 34 YEARS, OCC: BUSINESS (NOW NIL),
R/O H.NO. 1-1-30/E, MUSLIMPUR,
YADGIR,
TQ. & DIST. YADGIR.
...APPELLANT
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE)
AND:
Digitally signed
by SHIVALEELA
DATTATRAYA
UDAGI
1. VIJAY MORDE S/O PRAKASH MORDE,
Location: HIGH AGE: 47 YEARS, OCC: OWNER OF BOLERO
COURT OF
KARNATAKA JEEP BEARING REGN. NO.KA-36/N-2473,
R/O H.NO. 5-5-76, C/O AIRTEL OFFICE,
NEAR SBI BANK, STATION AREA BRANCH,
YADGIR,
TQ. & DIST. YADGIR-585 202.
2. BHARATI AXA GENERAL INSURANCE CO. LTD.,
FIRST FLOOR, FERNS ICON, SY.NO.28,
DODDANAKUNDI VILLAGE, K.R. PURAM HOBLI,
BANGALORE-37,
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MFA No. 201074 of 2019
THROUGH ITS MANAGER
CLAIMS DEPARTMENT.
...RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE, FOR R2;
R1-NOTICE DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING
TO ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND
AWARD DTD.22.11.2018 IN MVC NO.156/2017 ON THE FILE
OF SENIOR CIVIL JUDGE AND CJM MACT-II, AT YADGIRI BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE
CLAIM PETITION.
THIS APPEAL COMING ON FOR ADMISSION, 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. Though this appeal is slated for admission, with
the consent of both the parties, it is taken up for final
disposal.
2. Heard learned counsel appearing for the
appellant-petitioner and the learned counsel for respondent
No.2 - Insurance Company.
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3. Being aggrieved by the judgment and award
dated 22.11.2018 passed in MVC No.156/2017 by the Senior
Civil Judge and M.A.C.T.-II, Yadgiri, (for short 'the Tribunal'),
the petitioner is before this Court seeking enhancement of
compensation amount.
4. Brief facts of the case is as below:
a) The petitioner on 19.03.2017 while was
proceeding by walk near the new Bus-Stand at Yadgiri, the
driver of Bolero Jeep bearing registration No.KA-36/N-2473
owned by respondent No.1 and insured by respondent No.2
drove the same in rash and negligent manner and dashed to
the petitioner, resulting in, the petitioner sustaining injuries.
The petitioner sustained fracture of the distal end of radius
and dislocation of the right ulna, fracture of the right femur
and fracture of upper ends of both bones of the right leg,
fracture of distal end of both the bones of the left forearm.
It was opined that there is traumatic amputation of the right
lower limb below knee and he was admitted in RIMS Hospital
and thereafter shifted to Suraksha Hospital. The Discharge
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Summary and the hospital records would indicate the same.
The petitioner approached the Tribunal contending that he
was age of 32 years at the time of accident, was doing
business of cloths and earning Rs.20,000/- per month and
due to the amputation and other injuries suffered by him he
has suffered loss of earning and as such, adequate
compensation be awarded to him.
b) Respondent Nos.1 and 2 appeared before the
Tribunal. Respondent No.1 denied the age, income and
occupation of the petitioner and termed the compensation
claimed as excessive, exorbitant and imaginary.
c) Respondent No.2 - Insurance Company
contended that there was violation of the terms and
conditions of the policy and therefore, its liability be
exonerated.
d) Based on contentions of both the parties, the
Tribunal framed appropriate issues and recorded the
testimony of the PW1 and the Doctor who assessed his
disability as PW2 and Exs.P1 to P16 were marked in
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evidence. No ocular evidence was led on behalf of the
respondent No.2. The Tribunal after hearing the arguments,
awarded a compensation of Rs.13,50,000/- under different
heads as below:
Sl. Heads Award
No.
1 Pain and suffering Rs.50,000/-
2 Conveyance, attendant's and Rs.34,500/-
nourishment food charges
3 Medical expenses Rs.2,34,737/-
4 Loss of amenities Rs.50,000/-
5 Loss of earning during laid up Rs.14,500/-
period
6 Loss of future earning on Rs.9,40,000/-
account of disability
7 For removal of implants Rs.25,000/-
Total Rs.13,48,737/-
Rounded off Rs.13,50,000/-
5. Being aggrieved by the same, the petitioner-
claimant is before this Court.
6. On perusal of the records, it reveals that the
petitioner had sustained amputation of the right lower limb.
It is pertinent to note that the Discharge Summery shows
that the amputation is below knee. However, the Disability
Certificate at Ex.P9 indicates that the amputation is above
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knee. The photograph at Ex.P15 shows that the amputation
was above knee. After observing the testimony of the PW2
and the medical records, the Tribunal came to the conclusion
that the disability of the petitioner is 70% and accordingly
calculated the compensation by adopting the notional income
at Rs.7,000/- per month.
7. Learned counsel appearing for the petitioner
would submit that the disability assessed by the Tribunal
needs to be enhanced and the compensation awarded under
the other heads also needs to be reassessed. He submits
that the petitioner was a businessman and though he had
not produced any document, his avocation should have been
considered in assessing the income of the petitioner.
8. Per contra, learned counsel appearing for
respondent No.2 - Insurance Company would defend the
impugned judgment and seek dismissal of the appeal.
9. Having heard the learned counsels on both the
sides and perusal of material available on record, it is
evident that though the petitioner contends that he is a
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businessman doing a cloth business, no iota of evidence has
been produced by him to establish the same. Evidently, the
petitioner claims that he is a businessman, but having not
produced any material to show it, it can only be said that he
was doing some work in a cloth shop. Therefore, in the
absence of any material on record, the notional income has
to be accepted.
10. The guidelines issued by the Karnataka State
Legal Services Authority (KSLSA), for settlement of the
disputes before the Lok Adalat prescribe the notional
income of Rs.10,250/- for the year 2017. 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 Rs.10,250/- per month.
11. Insofar as the disability is concerned, it is evident
that the petitioner was not involved in any avocation which
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requires his traveling or movement. He was confined to a
shop as per his owner's say and therefore, the disability
assessed by the Tribunal at 70% is proper and correct. It is
pertinent to note that the Tribunal has not considered the
future prospects when the disability is assessed at 70%.
Accordingly, considering future prospects at 40% of
Rs.10,250/- i.e., 4,100/-, the total income comes to
Rs.14,350/- per month. Thus, loss of future income on
account of disability is calculated at Rs.14,350/- x 12 x 16 x
70% = Rs.19,28,640/- by adopting the multiplier of '16'.
12. Consequently, by presuming that the petitioner
was unable to resume his normal work atleast for a period of
six months, a sum of (Rs.10,250/- x 6) = Rs.61,500/- is
awarded under the head of loss of income during laid up
period.
13. The compensation awarded by the Tribunal under
the head of pain and suffering needs to be enhanced to
Rs.1,00,000/- by considering the fact that he has suffered
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fracture of the bones of both the hands in addition to the
amputation of the lower limb.
14. The Tribunal has awarded a compensation of
Rs.34,500/- under the heads conveyance charges,
attendant's charges and nourishment food charges. It is
pertinent to note that the petitioner was inpatient for a
period of 58 days, therefore, the compensation under this
head is enhanced to Rs.60,000/-.
15. The Tribunal has awarded a sum of Rs.50,000/-
under the head loss of amenities in life, which needs to be
enhanced to Rs.1,00,000/-.
16. The Tribunal though observed that there is
necessity future medical expenses for removal of implants,
particularly to the hands, and awarded a sum of Rs.25,000/-,
but fails to note that the petitioner also required a
prosthesis. Therefore, in addition to Rs.25,000/- the
petitioner is entitled for Rs.75,000/-, in total Rs.1,00,000/-
under the future medical expenses, which would not carry
any interest.
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17. The compensation awarded by the Tribunal under
head of medical expenses at Rs.2,34,737/- is just and proper
and does not require any indulgence by this Court.
Accordingly, the appellant-petitioner is entitled for total
compensation as below:
Sl. Heads Award by the Award by this
No. Tribunal Court
1 Pain and sufferings Rs.50,000/- Rs.1,00,000/-
2 Medical expenses Rs.2,34,737/- Rs.2,34,737/-
3 Conveyance, Rs.34,500/- Rs.60,000/-
Attendant's and
nourishment food
charges
4 Loss of income due Rs.9,40,000/- Rs.19,28,640/-
to permanent
physical disability
5 Loss of amenities Rs.50,000/- Rs.1,00,000/-
and future
unhappiness
6 Loss of income Rs.14,500/- Rs.61,500/-
during laid up
period
7 Future medical Rs.25,000/- Rs.1,00,000/-
expenses
Total Rs.13,48,737/- Rs.25,84,877/-
Rounded to Rs.13,50,000/-
Less: Award by the Tribunal Rs.13,50,000/-
Total enhancement Rs.12,34,877/-
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18. For the aforesaid reasons, the appeal deserves
to be allowed in part. 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.12,34,877/- with interest at the rate of 6%
per annum (excluding Rs.1,00,000/-) from the
date of petition till realization, in addition to what
has been awarded by the Tribunal.
(iv) The respondent No.2 - 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.
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(v) The deposit and release of the
enhanced compensation amount is as per the
order passed by the Tribunal.
Sd/-
(C.M. JOSHI)
JUDGE
SBS
CT: AK
