Karnataka High Court

Ashok Pomanna Patil vs Prashant S Koujalagi on 25 March, 2025

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                                                            NC: 2025:KHC-D:5431
                                                          MFA No. 23901 of 2012




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                           DATED THIS THE 25TH DAY OF MARCH, 2025

                                              BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA

                    MISCELLANEOUS FIRST APPEAL NO. 23901 OF 2012 (MV-I)
                   BETWEEN:

                   SHRI. ASHOK POMANNA PATIL,
                   AGE 38 YEARS, OCC: COOLIE,
                   R/O. KOUNDAL, TAL: KHANAPUR,
                   DIST: BELGAUM.
                                                                 -    APPELLANT
                   (BY SRI. HARISH S. MAIGUR, ADVOCATE)

                   AND:

                   1.   SHRI. PRASHANT S. KOUJALAGI,
                        AGE MAJOR, OCC: OWNER, R/O.297,
                        CHANNAMMA NAGAR, BELGAUM.

                   2.   THE DIVISIONAL MANAGER,
                        NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE,
                        RAMDEV GALLI, BELGAUM.
                                                             -    RESPONDENTS
Digitally signed
                   (BY SRI. G. N. RAICHUR, ADVOCATE FOR R2;
by VISHAL
NINGAPPA
                   NOTICE TO R1 IS DISPENSED WITH)
PATTIHAL
Location: High
Court of                  THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF
Karnataka,
Dharwad Bench
                   MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED
                   IN M.V.C NO.744/2008, ON THE FILE OF THE PRESIDING OFFICER,
                   FAST TRACT-III COURT AND MACT BELGAUM, AT: BELGUAM, DATED
                   03.07.2012, BY ALLOWING APPEAL WITH COSTS IN THE INTEREST
                   OF JUSTICE AND EQUITY & ETC.


                          THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
                   JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                         NC: 2025:KHC-D:5431
                                      MFA No. 23901 of 2012




                     ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

This appeal is by the claimants against the judgment

and award dated 03.07.2012 passed in M.V.C. No.

744/2008 by the learned Presiding Officer, Fast Track III

Court & MACT, Belgaum [for short, 'the Tribunal'].

Parties are referred to as per their ranking before the

Tribunal.

2. It is the case of the claimant that he met with

accident on 08.03.2008 by a lorry bearing Reg. No. KA-22-

A-4816 due to rash and negligent driving of the said

vehicle by its driver and in the said accident he sustained

grievous injuries. As a consequence of the injury, he lost

vision of his right eye. He further contended that he was

aged about 34 years, serving as a Turner and earning

Rs.3,000/- per month. Due to the injuries sustained in the

accident, he has been suffering from permanent disability

and lost his earning capacity. With these reasons prayed

to award compensation of Rs.3,50,000/-.

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3. Respondent No.2-insurer filed written statement

denying the contention of the claim petitioner. It is

further contended that claimant was a gratuitous

passenger in a goods vehicle. Therefore his liability is not

covered under the policy of insurance. Hence it is not

liable to pay compensation. It is further contended that

liability of the insurer is restricted to terms and conditions

of the policy of insurance and holding of valid and effective

driving licence by the driver of the offending vehicle. With

these reasons he prayed to dismiss the claim petition.

4. The Tribunal on consideration of rival claims has

framed necessary issues. The petitioner to prove his case

examined two witnesses as PW1 and 2 and got marked six

documents as per Exs.P.1 to P.6. Respondent No.2

examined one witness as RW1 and got marked two

documents, i.e., policy of insurance and the letter of

authorization given to the RW1 to lead evidence, as Ex.R.1

and Ex.R.2.

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5. After hearing both the parties and appreciating the

pleadings and evidence on record the Tribunal held that

accident took place due to negligence of the driver of the

lorry by its driver. The claimant was not a gratuitous

passenger in the said lorry and Tribunal also assessed age

of the claimant as 34 years, his income as Rs.3,000/- per

month, assessed permanent disability at 20%, applied

multiplier at 16 and awarded the following amount of

compensation under different heads:

1. Injury, pain and agony, i.e., loss of one eye 50,000.00 resulting loss of vision permanently as per compendium of Medico Legal Information for easy settlement of Motor Accident Cases in Lok Adalat by Justice K. Shridhar Rao

2. Medical expenses Nil

3. Nursing, attendant charge, extra 5,000.00 nourishment & conveyance

4. Loss of earning during treatment 3,000.00

5. Loss of future earning 1,15,000.00

6. Loss of amenities and future unhappiness 15,000.00 Total 1,88,000.00

6. I have heard arguments of the learned counsel for

the appellant as well as learned counsel for the respondent

No.2.

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7. Learned counsel for the appellant submits that the

Tribunal has taken the disability as 20% which is not in

accordance with the evidence of PW2, who is an

ophthalmologist. He has given disability to the whole body

at 40%. Even if it is considered under the Workmen's

Compensation Act, 1953, for loss of vision of one eye, the

disability ranges from 30 to 40% depending upon the

other complications.

8. In the present case, as per the evidence of PW2

there is disfigurement of face due to the injuries sustained

by the claimant. In all the probabilities, the Tribunal

ought to have taken the disability as 40% but it

erroneously taken it as 20%. He further submits that

amount of compensation awarded under other heads are

also on the lower side which needs to be enhanced.

9. In support of his arguments he relied on the

judgment of the Hon'ble Apex Court in the case of

Jayanandan Vs. Varkey & Ors [SLP [C] No.

22423/2024], wherein it is held that for loss of vision

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the disability could be computed at 100% and the same

ratio could be applied to the facts of the present case.

10. Learned counsel for respondent No.2 vehemently

contends that as per the Workmen's Compensation Act the

disability for loss of one eye vision is 30% and in this case

the claimant is a Coolie. Therefore, this Court cannot

consider the disability either at 40% or 100% as held in

the case of Jayanandan stated supra. The facts and

circumstances of the case before the Apex Court was

totally different from the facts of the present case. Hence,

it is not applicable to the facts of the present case. He

further contends that the Tribunal after assessment of the

facts and circumstances, awarded just amount of

compensation which does not call for interference by this

Court.

11. The only question which arises for determination is

whether the claimant is entitled for enhanced

compensation?

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12. The said question is answered partly in the

affirmative for the following reasons.

13. The claimant has stated that he has lost complete

vision of right eye, he was thoroughly cross examined but

nothing was brought out to disbelieve it. On the contrary,

the demeanor of the witness was recorded in the

deposition by the learned Presiding Officer during the cross

examination of PW1 that the claimant was not in a position

to see any object from his right eye.

14. The claimant examined PW2, who is an

Ophthalmologist. He assessed disability and also opined

that claimant lost eye ball of right eye and loss of vision as

well as facial disfigurement. He assessed disability at 40%

to the whole body. In his cross examination the said facts

were denied but nothing was brought out to disbelieve it.

15. The Tribunal has assessed disability at 20% without

any basis. According to Schedule I Part II Sl. Nos. 25 and

26 of the Workmen's Compensation Act, 1923 loss of one

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eye without complications and other being normal,

percentage of loss of earning capacity is 40%; Loss of

vision of one eye, without complications or disfigurement

of eye ball, the other being normal percentage of loss of

earning capacity is 30%. In this case as per the evidence

of PW2 there is loss of eye ball of the right eye and facial

disfigurement. The claimant has to suffer throughout his

life. Loss of eye ball will certainly leads to disfigurement

of the face. In view of the said facts, the permanent

disability has to be assessed as 40% to the whole body

and hence evidence of PW2 is to be accepted.

16. The claimant has contended that he was earning

Rs.3,000/- per month and same was accepted by the

Tribunal, does not call for interference. The multiplier

applicable to the case is '16' which is also accepted by the

tribunal and basing on the said figures, the amount of

compensation towards loss of future earning capacity due

to permanent disability could be assessed.

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17. As rightly contended by the learned counsel for

respondent No.2, the facts of the case in Jayanandan

(stated supra) is different from the facts of the present

case. In the said case, the occupation of the claimant was

'diamond cutter'. But in the present case the claimant is a

coolie and stated to be working as a turner. In view of the

said fact it would suffice to hold that permanent disability

assessed above is just and sufficient and in accordance

with the Workmen's Compensation Act.

18. As rightly contended by the learned counsel for the

appellant, the amount of compensation under other heads

are on the lower side and it needs to be enhanced.

Accordingly, the amount of compensation is recalculated

and following amount of compensation is awarded:

1. Pain and suffering 75,000.00

2. Nursing, attendant charge, extra 25,000.00 nourishment & conveyance

3. Loss of amenities 50,000.00

4. Loss of earning during treatment 20,000.00

5. Loss of future earning due to permanent 2,30,000.00 disability Total 4,00,000.00 Award of Tribunal 1,88,000.00 Enhancement 2,12,000.00

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19. The claimant has not furnished any records to prove

that he has spent any amount towards medical expenses

as he has taken treatment in a Government Hospital which

is free of cost. Hence, no amount of compensation is

awarded or enhanced in respect of medical expenses.

20. The claimant has prayed to award compensation of

Rs.3,50,000/-. It is settled principle of law that even if the

amount of compensation claimed is less or more but the

Tribunal has to award just and reasonable amount of

compensation. Therefore there is no need to restrict the

award of compensation to Rs.3,50,000/- as prayed in the

claim petition.

21. It is not in dispute that accident had taken place due

to rash and negligent driving of the lorry by its driver and

the respondent No.2 is liable to pay the said amount of

compensation. The respondent is also liable to pay

interest at the rate of 6% p.a. on the enhanced

compensation amount from the date of petition till

realization. Accordingly, the above said question is

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answered partly in the affirmative and I proceed to pass

the following order:

ORDER

[1] Appeal is allowed in part;

[2] the judgment and award dated

03.07.2012 passed in M.V.C. No. 744/2008 by the

learned Presiding Officer, Fast Track III Court &

MACT, Belgaum, is modified by enhancing

compensation amount of Rs.2,12,000/- in addition to

the amount awarded by the Tribunal;

[3] The insurer shall deposit the enhanced

compensation amount before the Tribunal within six

weeks from the date of award;

[4] Out of the enhanced amount of

compensation, the Tribunal is directed to release

75% of the amount in view of prayer of the

appellant-claimant and balance amount shall be

invested in fixed deposit as per the award of the

Tribunal.

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The trial Court records shall be sent back along with