Partly allowed

Siddalingayya S/O Shambulingayya Hiremath v. Divisional Controller

Karnataka HC28 Jan 2019MFA/201428/2017

Case brief

AI extract

What is this about?

High Court rejected the bus corporation's appeal on disability percentage but reduced quantum of compensation. It reshaped future income calculation, excluded loss of prospects, added missed wages, and lowered total award to Rs.2,43,400.

What did the court decide?

Total compensation awarded is Rs.2,43,400 with 6% interest, replacing the Tribunal's award of Rs.4,48,000.

Siddalingayya S/O Shambulingayya Hiremath Vs… — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 28^TH DAY OF JANUARY 2019

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BEFORE

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THE HON’BLE MR. JUSTICE S.G.PANDIT

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MFA NO.201428 OF 2017 C/W MFA NO.201244/2017 (MV)

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IN MFA NO.201428/2017

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BETWEEN:

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SIDDALINGAYYA S/O SHAMBULINGAYYA HIREMATH AGE: 28 YEARS, OCC: TEACHER NOW NIL, R/O BHUNYAAR TQ. & DIST. KALABURAGI – 585 102

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... APPELLANT

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(BY SRI SANJEEV PATIL, ADVOCATE)

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AND:

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DIVISIONAL CONTROLLER DIVISIONAL OFFICE, NEKRTC MAIN ROAD, KALABURAGI – 585 103

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... RESPONDENT

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(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND MACT,

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KALABURAGI ON 02.05.2017 IN MVC NO.358/2015 AND ALLOW THE CLAIM PETITION BY ENHANCING THE AWARD TO THE AMOUNT OF RS.11,72,000/- AS CLAIMED FOR IN THE CLAIM PETITION.

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IN MFA NO.201244/2017

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BETWEEN:

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THE DIVISIONAL CONTROLLER DIVISIONAL OFFICE, NEKRTC MAIN ROAD, KALABURAGI – 585 103 NOW THROUGH ITS MD, NEKRTC CENTRAL OFFICE, SARIGE SADANA MAIN ROAD, KALABURAGI THROUGH ITS AUTHORISED SIGNATORY

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... APPELLANT

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(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE) AND: SIDDALINGAYYA S/O SHAMBHULINGAYYA HIREMATH AGE: 28 YEARS, OCC: TEACHER NOW NIL, R/O BHUNYAAR TQ. & DIST. GULBARGA– 585 324

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... RESPONDENT

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(BY SRI SANJEEV PATIL, ADVOCATE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE ORDER OF THE TRIBUNAL, HEAR THE PARTIES AND SET ASIDE THE JUDGMENT DATED 02.05.2017 AND AWARD DATED 08.05.2017 IN MVC NO.358/2015 IN THE COURT OF I

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ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT AT KALABURAGI.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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Even though the appeals are listed for admission, with the consent of learned counsel for the parties, they are taken up for final disposal.

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MFA No.201244/2017 is by the NEKRTC, assailing the quantum of compensation awarded under judgment and award dated 02.05.2017 passed in MVC No.358/2015 on the file of I Additional Senior Civil Judge and MACT, Kalaburagi, whereas MFA No.201428/2017 is by the claimant, seeking enhancement of compensation claiming that the Tribunal has taken the income of the injured claimant at Rs.6,000/- per month instead of Rs.7,500/- per month. As both the appeals arise out of the common

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judgment and award, both are heard together and disposed of by this common judgment.

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The claimant/injured filed claim petition

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stating that on 17.05.2014 when he was proceeding on Hero Honda Splendor Motorcycle No.KA-32/Y-615, one NEKRTC bus bearing registration No.KA-38/F-629 came from opposite direction with high speed in rash and negligent manner and dashed to the motorcycle of the claimant, in which the claimant sustained grievous injuries to his left forearm and fracture of digital 1/3^rd of ulna and radius and right leg knee. He took treatment as inpatient from 17.05.2014 to 24.05.2014. It is also claimed that he had undergone operation and he had also taken further treatment at Gangamai Hospital at Solapur. The claimant stated that he is a teacher earning salary of Rs.10,000/- per month and due to the accident he is unable to do his work as he use to do earlier, which affects his future prospects.

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4. The respondent/corporation appeared and

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filed its objection denying the petition averments.

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The Tribunal based on the material available on record both oral and documentary by its judgment dated 02.05.2017 granted total compensation Rs.4,48,000/- and held that the claimant suffers 20% disability of whole body. The respondent/corporation is before this Court assailing the said judgment and award dated 02.05.2017 on the ground that the total disability of the body taken at 20% by the Tribunal is wholly erroneous, since the injuries suffered by the claimant would not come in the way of discharging the duties of the claimant as teacher.

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Further, the learned counsel for the respondent/corporation submits that the Tribunal committed an error in granting loss of future prospects in the case of injury. Since the loss of future prospects could be granted by the Tribunal while dealing with the

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case of death of a person if he has fixed income. Therefore, he prays for setting aside the judgment and award passed by the Tribunal.

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Per contra, the learned counsel for the claimant/appellant in the connected appeal submits that the income of the injured/claimant taken by the Tribunal for determining the compensation is on the lower side and he submits that minimum notional income of Rs.7,500/- per month ought to have taken instead of Rs.6,000/- per month taken by the Tribunal.

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He further submits that the disability assessed by the Tribunal is proper and would not require modification. The learned counsel for the claimant also submits that the Tribunal has rightly granted 50% towards future prospects.

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I have considered the submission of both counsel. There is no dispute with regard to the accident

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which had taken placed on 17.05.2014 between the Hero Honda Splendor motorcycle and NEKRTC bus. It is also not in dispute that the claimant/appellant had suffered injuries of left forearm, fracture of digital 1/3^rd of ulna and radius and right leg knee.

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The claimant/appellant has examined doctor as PW.2 in support of his contention that he has suffered disability due to the accidental injuries. The doctor has opined that the claimant has suffered 50% disability of whole body, whereas the Tribunal has taken 20% whole body disability for calculation of compensation. The injuries suffered by the claimant are not of such a nature, which could be of 50% whole body disability. The doctor evidence to say that the injured/claimant had suffered 50% whole body disability cannot be believed looking into the nature of injuries suffered by the claimant. Further, the claimant states that he is working as a teacher and in his

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evidence he has not made it clear as to how the injuries suffered by him would come in way of discharging his duties as teacher that too when he has suffered injuries to left forearm and fracture of digital 1/3^rd of ulna and right knee. Therefore, I am of the view that the whole body disability of the claimant/injured can be taken only at 10% and accordingly, the disability of the whole body of the claimant is taken at 10%.

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Further, the Tribunal committed grave error in granting compensation on the head of loss of future prospects. Granting of compensation on the head of future prospects would not arise in the present case since it is a case of the injury. The Tribunal could not have added 50% of income towards loss of future prospects. The claimant/appellant would be entitled for loss of future income as he has suffered 10% whole body disability. Hence, adding 50% loss of future prospects by the Tribunal is set aside.

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The claimant in his appeal submits that

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income taken by the Tribunal for determination of the compensation is on the lower side and he submits that the notional income of the injured ought to have been taken at Rs.7,500/- per month. It is his submission that the claimant/appellant was working as a teacher and he was earning more than Rs.7,500/- per month, but he has not produced any document to indicate the exact income of the injured. The Courts will have to fall back to determine the notional income in the absence of documents to indicate exact income. This Court and the Lok Adalath while settling the claims arising out of the Motor Accident cases, would take notional income for the accident of the year 2014 at Rs.7,500/- per month. As the accident in the case on hand is also of the year 2014, I deem it proper to take notional income of the claimant at Rs.7,500/- per month for the purpose of calculation of compensation. Thus, the claimant

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would be entitled for modified compensation on the

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head of loss of future income as follows;

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LOSS OF FUTURE INCOME:-

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Rs.7,500/- x 12 x 18 x 10% = Rs.1,62,000/-

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The compensation granted on the head of pain and suffering, medial expenses, attendant and conveyance charges are not disturbed. The Tribunal has not granted any compensation on the head of loss of income during laid up period, which is about three months. The claimant would be entitled for a sum of Rs.22,500/- on the said head. Thus, the claimant would be entitled for total compensation of Rs.2,43,400/- with interest at the rate of 6% per annum instead of Rs.4,48,000/-.

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Accordingly, both the appeals are disposed of.

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The amount in deposit before this Court shall be

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transmitted to the concerned Tribunal.

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Sd/JUDGE

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LG/RSP

Siddalingayya S/O Shambulingayya Hiremath v. Divisional Controller

Case brief

What is this about?

What did the court decide?

Siddalingayya S/O Shambulingayya Hiremath v. Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

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