Partly allowed

Sri. Sohel Pasha v. Sri. Wajid Khan

Karnataka HC1 Jun 2021MFA/9256/2013

Case brief

AI extract

What is this about?

The Division Bench held that while the appeal regarding pain and suffering was not misplaced, the compensation quantum required reformulation. The court enhanced awards for medical expenses, conveyed-interests, future medical expenses, loss of amenities, and recalculated future and laid-up income loss, ordering total compensation of Rs. 3,49,900.

What did the court decide?

Impugned judgment modified; compensation enhanced to Rs.3,49,900/- from Rs.1,99,340/- with 6% interest per annum.

Sri. Sohel Pasha Vs Sri. Wajid Khan — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.9256/2013 (MV)

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BETWEEN:

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SRI SOHEL PASHA, S/O ABDUL JABBAR, AGE: 27 YEARS, OCC:NIL, R/O NO.1040, VIJINAPURA MASJID ROAD, 1^ST CROSS, BENGALURU-560016. … APPELLANT

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(BY SRI SURESH M. LATUR, ADVOCATE)

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AND:

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SRI WAJID KHAN, S/O SRI DASTHAGIR KHAN, R/O HADIGIRI VILLAGE, ANOOR POST, CHINTHAMANI TALUK, CHIKKABALLAPUR DISTRICT-563125.

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THE MANAGER, CHOLAMANDALAM GENERAL INSURANCE CO. LTD., NO.135/5, 15^TH CROSS, J.P. NAGAR, III PHASE, BENGALURU-560078. ... RESPONDENTS

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(BY SRI H.S. LINGARAJ, ADVOCATE FOR R-2; NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER DATED 23.09.2015)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.07.2013 PASSED IN MVC.NO.3453/2011 ON THE FILE OF THE VI ADDITIONAL SMALL

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CAUSES JUDGE AND XXXI ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCE THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this matter is listed for admission today, with the consent of both the learned counsel it is taken up for final disposal.

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This appeal is filed by the claimant challenging the judgment and award dated 05.07.2013 passed in M.V.C.No.3453/2011 on the file of the VI Additional Judge and MACT, Bengaluru-SCCH-2 (‘the Tribunal’ for short), questioning the quantum of compensation.

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The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.

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The factual matrix of the case is that the petitioner had sustained grievous injuries in a road traffic accident that took place on 27.03.2011 at about 10.30 a.m. on Katamachanahalli gate, Chinthamani on account of rash and

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negligent driving of Tata Ace bearing registration No.KA-406553. The claimant in the claim petition has contended that on account of the accident he has suffered the fracture of right femur and sustained permanent disability and he was subjected to open reduction internal fixation to his right leg and he was earning Rs.7,500/- per month. The Insurance Company denied the averments made in the claim petition and also disputed the accident and liability and denied the income and nature of injuries. The claimant in support of his claim examined himself as P.W.1 and also examined the doctor as P.W.2 and one more witness as P.W.3 and got marked the documents at Exs.P.1 to 16. The respondents have not led any evidence. The Tribunal after considering both oral and documentary evidence placed on record, awarded compensation of Rs.1,99,340/- under different heads. Hence the present appeal is filed before this Court.

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The main contention of the learned counsel for the

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appellant in the appeal is that the Tribunal has committed an error in taking the income as Rs.4,500/- per month and it was the accident of the year 2011. In the absence of any documentary proof, the Tribunal ought to have considered the notional income. The Tribunal also committed an error in taking

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the disability of 8% as the fracture was not united and he has suffered fracture of right femur middle 1/3^rd and other grievous injuries. The Tribunal committed an error in awarding only Rs.5,000/- under the head loss of amenities and failed to award just and reasonable compensation with regard to the loss of income during the laid up period. The Tribunal has awarded only an amount of Rs.10,000/- under the head future medical expenses. The learned counsel would contend that only an amount of Rs.40,000/- was awarded under the head pain and suffering and hence it requires interference of this Court to award just and reasonable compensation.

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Per contra, the learned counsel for respondent No.2 Insurance Company would contend that the Tribunal has rightly awarded an amount of Rs.40,000/- under the head pain and suffering. The learned counsel would contend that the Tribunal has committed an error in awarding higher compensation under the head conveyance taking the income as Rs.1,200/- per day. The learned counsel would contend that the Tribunal has taken the income of Rs.4,500/- per month and rightly awarded compensation for the laid up period and also future loss of income. However, the learned counsel concedes with regard to

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awarding of Rs.5,000/- under the head loss of amenities and it requires enhancement.

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Having heard the arguments of the learned counsel

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for the appellant and the learned counsel for respondent No.2,

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the point that arise for the consideration of this Court is:

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(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

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Having heard the arguments of the respective

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learned counsel and also on perusal of the records, the dispute is only with regard to the quantum of compensation. Having perused the records, it is not in dispute that the claimant has suffered fracture of right femur middle 1/3^rd and he was subjected to open reduction internal fixation to his right leg. On perusal of the records, it is clear that the fracture of right femur is not united. In support of his claim, the claimant also examined the doctor P.W.2 who has deposed disability to the extent of 42.8% to the right lower limb and 21% to the whole body. Having considered the material available on record and the nature of injuries, I do not find any reason to interfere with

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regard to awarding of compensation under the head pain and suffering which has been awarded as Rs.40,000/-.

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The Tribunal awarded an amount of Rs.57,400/under the head medical expenses, attendant, food, diet, nourishment, conveyance and the other incidental expenses. The same may be considered individually and considering the medical bills to the tune of Rs.24,940/-, an amount of Rs.25,000/- is awarded under the head medical expenses.

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However, the Tribunal has committed an error in taking the amount of Rs.1,200/- per day towards conveyance and other incidental expenses for a period of 27 days. The injured was an inpatient for a period of 5 days and he also took physiotherapy treatment. Having taken note of the same, the claimant is entitled for Rs.10,000/- under the head conveyance, attendant charges and other incidental expenses.

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The Tribunal has committed an error in awarding Rs.10,000/- under the head future medical expenses and the fact is that the fracture is not united and it requires correction by conducting future surgery. When such being the case, it is

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appropriate to award an amount of Rs.25,000/- under the head future medical expenses.

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The Tribunal while assessing loss of income during laid up period, took the income as Rs.4,500/- per month and it is an accident of the year 2011 and in 2011, the notional income would be Rs.6,500/- per month and the Tribunal committed an error in taking the income of Rs.4,500/- per month. Considering the nature of fracture, it requires four months for uniting of fracture and for rest. Hence, four months is considered as laid up period. Taking the income of Rs.6,500/- per month and laid up period as four months, an amount of Rs.26,000/- (Rs.6,500/x 4) is awarded under the head loss of income for laid up period.

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The Tribunal while awarding compensation under the head future loss of income on account of permanent disability, took disability of 8% and the fact is that the fracture was not united as is evident from the evidence of doctor P.W.2. When such being the case, the Tribunal ought to have taken disability of 15%, since the fracture is not united. Taking the income of Rs.6,500/- per month and taking the relevant multiplier of ‘17’,

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the loss of future income comes to Rs.1,98,900/- (Rs.6,500/- x 12 x 17 x 15%).

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The Tribunal awarded an amount of Rs.5,000/-

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under the head loss of amenities. The claimant is aged about 26 years and he has to lead rest of his life with disability of 15%, hence it is appropriate to enhance the same to Rs.25,000/-.

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In all, the claimant is entitled for a compensation of Rs.3,49,900/- as against Rs.1,99,340/-.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 05.07.2013 passed in M.V.C.No.3453/2011 is modified granting compensation of Rs.3,49,900/- as against Rs.1,99,340/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Sri. Sohel Pasha v. Sri. Wajid Khan

Case brief

What is this about?

What did the court decide?

Sri. Sohel Pasha v. Sri. Wajid Khan

Case brief

What is this about?

What did the court decide?

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