Partly allowed

Prabhudev S/O. Sanna Basappa Bisanalli v. Virupaxappa S/O. Huchappa Hulagi

Karnataka HC11 Aug 2017MFA/22429/2010

Case brief

AI extract

What is this about?

In an appeal by a claimant against the Motor Accident Claims Tribunal, the High Court enhanced the compensation amount. The Court found the quantum under 'pain and sufferings' to be insufficient due to severe fractures and adjusted the disability percentage from the Tribunal's assessment. It also recalculated future loss of income based on notional agricultural worker income and increased miscella

What did the court decide?

The compensation awarded by the Tribunal is modified and enhanced from Rs. 2,05,800 to Rs. 3,00,150.

Prabhudev S/O. Sanna Basappa Bisanalli Vs… — Motor Accident Claims | Karnataka HC (2017)

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M.F.A.No.22429/2010

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF AUGUST, 2017

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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MFA NO.22429 OF 2010 (MV)

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BETWEEN:

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PRABHUDEV S/O. SANNA BASAPPA BISANALLI, AGED ABOUT 36 YEARS, OCC: AGRICULTURE, R/O. AGALAKERA, DIST. KOPPAL.

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... APPELLANT

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(BY SRI. SANTOSH NARAGUND, ADV. FOR SRI A.S.PATIL, ADV. FOR APPELLANT)

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AND:

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1 VIRUPAXAPPA S/O. HUCHCHAPPA HULAGI, AGED ABOUT 31 YEARS, OCC: DRIVER, R/O. AGALAKERA, TQ AND DIST. KOPPAL.

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2 MAHADEVAPPA S/O. NAGAPPA HULAGI,

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AGE 31 YEARS,

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OWNER OF MOTOR CYCLE NO.KA-37/K2771, R/O. 2^ND WARD AGALAKERA,

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TQ AND DIST. KOPPAL.

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3 THE MANAGER, RELIANCE GENERAL INSURANCE CO, LTD., NO.40, 1^ST FLOOR, SLV TOWER, PARVATHI NAGAR MAIN ROAD, BELLARY. (POLICY NO.331692/200702097308 W.E.F. 18.01.2008 TO 17.01.2009)

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4 SANNA RAJESAB S/O. SHAIKSAB

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M.F.A.No.22429/2010

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W.NO.3, AGE 43 YEARS, OCC: DRIVER OF JEEP NO.KA34/M-2152, R/O. KORLAGUNDI, TQ. & DIST. BELLARY.

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5 THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, THE NEW INDIA ASS. CO, LTD., ARYA EDIGA BUILDING, OPP. OLD BUS STAND, BELLARY. (POLICY NO.671800/31/06/02/0000213 W.E.F. 21.04.2008 TO 21.04.2009)

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...RESPONDENTS

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(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R3 ; SRI P.H.PAWAR, ADV. FOR R5 ; R1, R2 AND R4 SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.04.2010, PASSED IN MVC NO.161/2009, ON THE FILE OF THE MEMBER, ADDL. MACT, AND PRESIDING OFFICER, FAST TRACK COURT – I, KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant herein is the claimant in MVC No.161/2009, on the file of the Member, Addl. Motor Accident Claims Tribunal and Presiding Officer, Fast

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M.F.A.No.22429/2010

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Track Court – I, Koppal (for brevity hereinafter referred to as “the Tribunal below”). He has preferred this appeal seeking enhancement of the compensation.

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Heard arguments from the learned counsels

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from both sides.

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Since it is a claimant’s appeal seeking

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enhancement of the compensation amount and as submitted by both the sides no other appeal challenging the present impugned Judgment and award has been preferred by anyone before any forum, the finding of the Tribunal below with respect to the occurrence of the accident on the date, time and place and in the manner as contended by the claimant in his claim petition stands undisturbed. As such, the said aspect of occurrence of the accident and the alleged negligence on the part of the driver of the offending vehicle and also the liability of the respondents to compensate the injured-claimant need not be re-analyzed in this appeal. The only question is

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M.F.A.No.22429/2010

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regarding the reasonableness of the quantum of

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compensation awarded by the Tribunal below.

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According to the appellant/claimant as well as

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his learned counsel, the compensation awarded by the Tribunal below, more particularly under the head of ‘pain and sufferings’ and the ‘loss of future income’ are very meager, as such, the compensation awarded by the Tribunal below deserves enhancement.

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According to the learned counsel for the respondent – Insurance Company, the Tribunal below after considering all the aspects, has awarded a reasonable compensation, which does not require any interference at the hands of this Court.

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The Tribunal below has awarded the

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compensation under the following heads and the sum shown against them:

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M.F.A.No.22429/2010

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1	Pain and sufferings	`50,000/-
2	Loss of amenities	`25,000/-
3	Loss of income duringrest period	`9,000/-
4	Loss of futureincome	`46,800/-
5	Medicalexpenses	`70,000/-
6	Misc. Expenses	`5,000/-
	Total	`2,05,800/-

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As has come out in the claim petition as well

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as in the evidence of PW-1 - claimant, after the accident,

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the injured was examined by the doctors at General Hospital, Munirabad. As such, the wound certificate issued by the said Hospital which is marked at Ex.P-6 is the primary document which speaks about the injuries said to have been suffered by the claimant. The said document, apart from observing that on clinical examination, the injured was found to have sustained two lacerated wounds, an abrasion, one swelling and tenderness, also referred to the X-ray film results taken

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M.F.A.No.22429/2010

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upon those injured parts. It has observed that a radiological test taken by Vijayanagara Institute of Medical Science, Ballari, (VIMS) reveals that the injured had sustained Segmental fracture of right femur and Segmental fracture of both bones of right leg. It has opined that those fracture injuries were grievous in nature. For these injuries put together, towards pain and sufferings, the Tribunal below has awarded a sum of 50,000/-. Considering the nature of the injuries which has resulted in fracture of all the important bones of the right leg of the injured person, I am of the view that the compensation awarded by the Tribunal below under the head ‘pain and sufferings’ deserves to be enhanced by a sum of ** 10,000** /- to bring it to a reasonable quantum.

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The compensation awarded towards ‘loss of amenities’ and towards ‘medical expenses’ being reasonable amount and more particularly the medical expenses are based upon the medical bills and

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M.F.A.No.22429/2010

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prescriptions marked as Ex.P-10, P-11 & P-12, I do not want to modify the quantum under those two heads.

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The claimant in his claim petition, as well as in

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his evidence as PW-1 has stated that, at the time of accident he was working as an agricultural worker and earning a sum of `6,000/- per month. However, due to the injuries suffered by him in the accident, he is left with permanent disability which has disabled him from pursuing his avocation. In his support, he has also got examined one Dr. P. Balasubramanyam, who is stated to be a doctor from the treating Hospital, who has deposed to the effect that he has clinically and radiologically examined the injured one year after the accident to assess the alleged disability. From the said examination he noticed that the injured was suffering with a disability of 32-35% orthopaedically to the whole body. No doubt the said assessment of the doctor has been seriously disputed and denied in his cross-examination from the

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respondent’s side. The Tribunal has taken the percentage of disability of the injured-claimant at 10% without showing any reason for reduction of the alleged disability by 1/3^rd . However, after perusing Ex.P-8, it appears that the doctor has considered the alleged pain which the injured is said to have complained before him and also has observed that the patient has physiologically upset after the accident. However, there are no reasoning in the disability certificate as to the diagnosis done by the doctor

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to confirm those complaints stated by the injured. As such, the percentage of disability as assessed by the doctor cannot be accepted in toto. At the same time, the percentage of disability considered by the Tribunal below also appears to be marginally on the lower side. As such, considering the nature of the avocation which the claimant claims that he was pursuing prior to the accident, the nature of the injury and the alleged malunion of the fractured bones and shortening of the right leg by 1 & ½ cms, I am of the view that the appropriate

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M.F.A.No.22429/2010

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percentage of the disability to be considered in the instant case is at 15% when compared to the whole body.

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The claimant has claimed that he was earning a sum of 6,000/- per month by his agricultural work prior to the accident and that he has lost the said income. To substantiate his income he has not produced any document, as such, the Tribunal below has considered income at 100/- per day, amounting to 3000/- per month. However, for the year of accident which is the year 2008, the Co-ordinate Benches of this Court since taking the notional income of agricultural worker at 4,250/- per month, I am of the view that the income of the claimant in the instant case is also required to be taken at the same figure. It is not in dispute that the claimant was aged 35 years as at the time of accident, as such, the appropriate multiplier applicable would be ‘16’. Thus, the entitlement of the claimant towards compensation under the head of ‘loss of future income’ would be 4,250X12X16X15/100 = 1,22,400/-. The

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M.F.A.No.22429/2010

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Tribunal below has awarded a sum of 46,800/- under the said head. After deducting the same, the claimant is entitled for enhancement of a sum of ** 75,600/-** under the said head.

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10. After observing that the claimant was required

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to take bed rest for 3 months, the Tribunal below has awarded a compensation of 9,000/- towards ‘loss of income during laid up period’. Since, it is observed above that monthly income of the injured is to be taken at 4,250/-, the differential amount would be at 4,250/- X 3 = 12,750/- minus 9000/- = 3,750/-. Thus, under the head of ‘loss of income during the laid up period’, the claimant is entitled for an enhancement of ` 3,750/-

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Towards ‘miscellaneous expenses’, the

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Tribunal below has awarded a sum of `5,000/-. However, considering the nature of injuries and his laid up period of 3 months and the immobility of the injured for the said duration, I am of the view that the miscellaneous expenses

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incurred by him would have reached `10,000/-.

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Accordingly under the said head an enhancement of ` 5,000/- is appropriate to be awarded.

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Barring the above, the claimant is not entitled for enhancement under any heads.

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Thus, in total the claimant/appellant is entitled for a enhancement of a sum of ` 94,350/-.

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Accordingly, I proceed to pass the following

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order:

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ORDER

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The appeal is allowed in part.

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The judgment and award passed by the Addl. MACT & Fast Track Court-I, at Koppal, in MVC No.161/2009, dated 01.04.2010, is modified to the extent that the compensation awarded at 2,05,800/- is enhanced and fixed at ** 3,00,150/-** (Rupees Three lakhs one hundred and fifty only)

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M.F.A.No.22429/2010

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The rest of the order of the Tribunal with respect to

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fixing the liability upon the respondent No.3 and directing the respondent No.3 to deposit the awarded amount, awarding the interest, its rate, terms regarding release of

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the amount awarded, shall remain unaltered.

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Sd/JUDGE

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*Svh/-

Prabhudev S/O. Sanna Basappa Bisanalli v. Virupaxappa S/O. Huchappa Hulagi

Case brief

What is this about?

What did the court decide?

Prabhudev S/O. Sanna Basappa Bisanalli v. Virupaxappa S/O. Huchappa Hulagi

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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Case details

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