Partly allowed

Bharamappa Halappa Mekkalaki, v. Smt. Sunita a. W/O Srinivas Rao

Karnataka HC14 Oct 2019MFA/24214/2010

Case brief

AI extract

What is this about?

This High Court allowed a Motor Accident Cases Appeal filed by an injured claimant seeking enhancement of compensation. The Court held the Tribunal erred in assessing global disability at 5% instead of 10% based on doctor's testimony regarding 35% upper limb disability. Income was re-assessed based on notional standards, and compensation for loss of amenity and pain and suffering was enhanced. Tot

What did the court decide?

Modifying the impugned award, the Court directed the payment of reassessed compensation of Rs.1,33,400/- with interest at 6% per annum, excluding 240 days of delay.

Bharamappa Halappa Mekkalaki, Vs Smt. Sunita a. W/O… — Specific Performance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF OCTOBER 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MISCELLANEOUS FIRST APPEAL No.24214 of 2010 (MV)

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BETWEEN:

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BHARAMAPPA HALAPPA MEKKALAKI, AGE: 35 YEARS, OCC: NIL, R/O KESTI, TQ. HUKKERI 591 309, DIST. BELGAUM.

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... APPELLANT

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(By Sri. R.S.KADIBAGIL, ADVOCATE)

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AND:

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SMT. SUNITA A. W/O SRINIVAS RAO, AGE: MAJOR, OCC: BUSINESS, R/O NAGARJUN COMPLEX, NEAR BABBUR ROAD, N.H.4 BYE-PASS, AT PO HIRIYUR 572143, DIST. CHITRADURGA.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., MARUTI GALLI, BELGAUM 590 001.

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... RESPONDENTS

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(By Sri. R.R. MANE, ADVOCATE FOR R2.

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APPEAL AGAINST R1 IS DISMISED V.O. DATED 21.7.2015)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED 28.10.2009 PASSED IN MVC NO.1425 OF 2005 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT AT

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HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is filed by the claimant challenging the judgment and award dated 28.10.2009 passed by the Fast Track and Motor Accident Claims Tribunal, Hukkeri, in MVC No.1425 of 2005 whereby the Tribunal has granted compensation of Rs.57,600/- with 6% interest.

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Brief facts of the case are that on 28.3.2005 at about 8.30 pm, the claimant was coming from Sankeshwar to Hukkeri in a Maxi cab bearing registration No.KA.23/7999. The driver of the maxi cab drove the same in a moderate speed by following the traffic rules. At that time, the driver of the tipper bearing registration No.KA.16/D-6 drove the same in high speed and in a rash negligent manner and dashed against the motorcycle. Due to the accident, the claimant has sustained grievous injuries. He was shifted to

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Government Hospital, Hukkeri, and took first aid treatment and then he was shifted to Sukh Shanti Polyclinic, Gokak. After recovering from the injuries, the claimant has filed a claim petition in MVC No.1425 of 2005 seeking compensation.

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To establish his claim, he has examined himself as PW-1 and also examined Dr. R.B. Patagundi as PW-2 and marked 9 documents. On the other hand, insurance company has neither examined any witness nor produced any documents.

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On appreciation of the oral and documentary evidence on record, the Tribunal has awarded compensation of Rs.57,600/- with 6% interest.

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Being aggrieved by the same, the claimant

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has filed this appeal for enhancement of compensation.

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Sri. R.S. Kadibagil, learned counsel appearing

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for the appellant/claimant contended that due to the accident, the claimant has suffered grievous injuries. He

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has examined Dr. R.B. Patagundi as PW-2. In his deposition, he has specifically stated that there is permanent disaiblty of 35% in respect of upper limb. But the Tribunal has taken the whole body disability at 5%, which is on the lower side. Secondly, it is contended, the claimant, at the time of accident, was earning Rs.7,000/- per month but the Tribunal has taken the income of the claimant at Rs.3,000/- per month and the same is on the lower side. He further contended that due to the accident, the claimant is unable to do his day to day work and there is disability of 35% in respect of upper limb which he has to suffer through out his life. The Tribunal has not awarded any compensation under the category of loss of amenities. Hence, he sought for enhancement of compensation.

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Per contra, Sri. R.R. Mane, learned counsel

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appearing for the insurance company, submitted that even though Doctor-PW-2 has stated that there is permanent disability of 35% in respect of upper limb, the

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fractures are reunited. Therefore, the Tribunal has rightly taken the disability as 5% to the whole body. Secondly, it is contended that even though the claimant has claimed that he was earning a sum of Rs.7,000/- per month, he has not produced any document to establish the same. He further contended that the Tribunal has rightly granted compensation under all other heads. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the records.

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It is not in dispute that the claimant has suffered injuries due to the accident occurred on 28.03.2005 due to the rash and negligent driving by the driver of the tipper bearing registration No.KA.16/D-6. Due to the accident, the claimant has suffered Acromio clavicular chislocation type II(R), subluxation of shoulder joint (R), contusion to right shoulder, abrasions lateral part of Arm and shoulder right and other simple injuries all over the body. The claimant has examined Dr. R.B.

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Patagundi as PW-2. In his deposition he has specifically deposed that there is disability of 35% in respect of upper limb. While calculating future loss of income, the Tribunal has considered the whole body disability at 5% which is on the lower side. Taking into consideration the age of the claimant and the permanent disability at 35% in respect of the upper limb, as per the deposition of the doctor, the whole body disability has to be taken at 10%.

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Though the claimant has claimed that at the time of the accident, he was earning Rs.7,000/- per month, he has not produced any document to establish the same. Under these circumstances, the Tribunal is left with no option but to assess the income of the claimant notionally. While assessing the notional income, the Tribunal has taken the monthly income of the claimant as Rs.3,000/- which is on the lower side. This Court in catena of decision, while considering the notional income, has taken into consideration the chart prepared by the Lok Adalat and as per the chart, for the accident

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of the year 2005, Rs.3,500/- is fixed as income. Accordingly, the income of the claimant is taken at Rs.3,500/- per month and loss of future income is reassessed as follows:

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3500x12x17x10/100=Rs.71,400/- is the loss of future income.

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Due to the accident, the claimant has suffered grievous injuries. He has examined the doctor as PW-2. PW-2, in his deposition, has deposed that permanent disability is to an extent of 35% in respect of upper limb. He has deposed that the claimant has to suffer this disability through out his life. The Tribunal has not awarded any compensation towards loss of amenities. Hence, a sum of Rs.25,000/- is awarded towards loss of amenities. The claimant has suffered the following injuries:

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(i) Acromio clavicular chislocation type II(R), (ii) Subluxation of shoulder joint (R), contusion to right shoulder,

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(iii) abrasions lateral part of Arm and shoulder right

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The Tribunal has granted only a sum of Rs.15,000/towards pain and suffering and the same is enhanced to Rs.25,000/- from Rs.15,000/-. Compensation awarded towards medical expenses is as per the bills and the same is retained. Compensation awarded towards attendant charges is sufficient and the same is retained.

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Accordingly, the appeal is allowed in part. The judgment and award dated 28.10.2009 passed by the Fast Track and Motor Accident Claims Tribunal, Hukkeri, in MVC No.1425 of 2005 is modified as follows:

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		Rs.
1	Pain and suffering	25,000/-
2	Medical expenses	10,000/-
3	Loss of futureincome	71,400/-
4	Loss of amenities	25,000/-
5	Attendant charges	2,000/-
	Total	1,33,400/-

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The claimant is entitled to re-assessed compensation of Rs.1,33,400/- with interest at 6% per annum. Insurance company shall pay the re-assessed compensation within six weeks from the date of receipt of a copy of this order.

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This Court while condoning the delay of 240 days by order dated 27.7.2015, it was ordered that the claimant would not be entitled for interest for the delayed period. Accordingly, the claimant is not entitled for interest for a period 240 days.

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Sd/JUDGE

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Kmv

Bharamappa Halappa Mekkalaki, v. Smt. Sunita a. W/O Srinivas Rao

Case brief

What is this about?

What did the court decide?

Bharamappa Halappa Mekkalaki, v. Smt. Sunita a. W/O Srinivas Rao

Case brief

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What did the court decide?

What the court decided

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