Partly allowed

Ibrahim Ismil Peeragoal v. Savanth Bupal Kantti

Karnataka HC13 Jul 2022MFA/24079/2012

Case brief

AI extract

What is this about?

The High Court enhanced the compensation payable by an insurance company to a motor vehicle accident claimant who suffered amputation of the right thumb. The court recomputed loss of earnings and awarded total damages of Rs. 3,36,460/-, dismissing the insurer's appeal while partly allowing the claimant's appeal.

What did the court decide?

Compensation enhanced to Rs. 3,36,460/-; appeal by insurer dismissed; appeal by claimant allowed in part.

Ibrahim Ismil Peeragoal Vs Savanth Bupal Kantti — Insurance | Karnataka HC (2022)

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE P.KRISHNA BHAT

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MISCELLANEOUS FIRST APPEAL NO. 21658 OF 2010 (MV-)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 24079 OF 2012

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IN MISCELLANEOUS FIRST APPEAL NO.21658/2010

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BETWEEN:

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THE NEW INDIA ASSURANCE COMPANY LIMITED 87.M.G.FORT, MUMBAI, THROUGH THE BRANCH OFFICE AT BELGAUM BY ITS REGIONAL OFFICE, 2-8, UNITY BUILDING ANNEXE, MISSION ROAD BANGALORE-560 027 REP BY ITS REGIONAL MANAGER

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…APPELLANT

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(BY SRI. RAVI G SABHAHIT, ADVOCATE)

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AND:

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IBRAHIM ISMAIL PEERAGOAL

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AGE 30 YEARS, OCC:CENTERING WORK R/O MASARGUPPI, TQ:HUKKERI

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Digitally signed by JAGADISH T R

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Location: HIGH COURT OF KARNATAKA, DHARWAD Date: 2022.07.14 10:17:50 +0530

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SAVANTH BUPAL KANTHI AGE/ MAJOR, OCC:BUSINESS R/O MASASRGUPPI, TQ:HUKKERI

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…RESPONDENTS

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(BY SRI. T M NADAF ADV., FOR R1; R2- NOTICE SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.10.2009

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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PASSED IN MVC NO.207/2004 BY THE PRESIDING OFFICER, FAST TRACK COURT AND MEMBER M.A.C.T., HUKKERI, AWARDING THE COMPENSATION OF RS.2,08,600/- WITH INTEREST AT THE RATE OF 6% PER ANNUM FROM THE DATE OF PETITION TILL REALIZATION.

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IN MISCELLANEOUS FIRST APPEAL NO. 24079 OF 2012

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BETWEEN:

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IBRAHIM ISMIL PEERAGOAL AGE: 32 YEARS, OCC: CENTRING WORK, R/O: MASARAGUPPI, TQ: HUKKERI, DIST: BELGAUM.

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…APPELLANT

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(BY SRI. T M NADAF, ADVOCATE)

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AND:

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SAVANTH BUPAL KANTTI AGE: MAJOR, OCC: BUSINESS (OWNER OF VEHICLE), R/O: MASARAGUPPI, TQ: HUKKERI, DIST: BELGAUM.

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THE NEW INDIA ASSURANCE CO. LTD., REGD. AND HEAD OFFICE-87, M G ROAD, FORT MUMBAI. THROUGH THE BRANCH OFFICE AT BELGAUM GALLI, BELGAUM.

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…RESPONDENTS

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(BY SRI. RAVI G. SABHAHIT, ADV., FOR R2; R1-NOTICE DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 28.10.2009 PASSED IN MVC NO.207/2004 BY THE PRESIDING OFFICER, FAST

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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TRACK COURT AND MEMBER M.A.C.T., HUKKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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These appeals are at the instance of the Insurance Company and the claimant calling in question the correctness of the judgment and award dated 28.10.2009 in MVC No.207/2004 by the learned Presiding Officer, Fast Track Court and M.A.C.T., Hukkeri (for short “the Tribunal”)

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The brief facts which are necessary for deciding this appeal are that while the claimant was traveling in autorickshaw bearing registration No.KA-23/6472 on 26.09.2003 at about 6.30 a.m., in order to go to Sankeshwar Cattle Market, on account of rash and negligent driving of the driver of the said auto-rickshaw, the claimant was thrown out of the vehicle and suffered crush injuries on the right thumb resulting in the amputation of the same.

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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The owner of the vehicle and the insurer have

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both resisted the claim petition by filing their respective statement of objections denying the material averments in the claim petition.

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During trial, claimant examined himself as PW1 and he examined an Orthopedic Surgeon as PW2. Exs.P1 to P15 were marked. Respondents did not examine any witnesses however, policy of insurance was marked as Ex.R1.

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Learned Tribunal, after hearing the learned counsel on both sides and perusing the records, has allowed the claim petition in part by awarding a compensation of Rs.2,08,600/- with interest thereon at 6% per annum from the date of petition till the date of payment.

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In support of its appeal, the Insurance Company

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has taken up a contention that the compensation awarded is on the higher side and the amputation of the right thumb has not been proved before the learned Tribunal. It has

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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taken a stand that the petitioner has suffered the injury on account of self-inflicted act of his own.

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Learned counsel for the claimant-appellant, per contra, has contended that the compensation awarded is on the lower side and it is required to be enhanced by allowing the appeal.

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I have bestowed my careful attention to the contentions advanced on both sides and I have carefully perused the records.

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The accident having been caused on account of rash and negligent driving of the driver of the offending vehicle is not in question. The said aspect has been properly established before the learned Tribunal by the evidence of PW1 and the charge-sheet which is at Ex.P6. The respondents have also not chosen to examine the driver of the offending vehicle. The records clearly show that on account of accident, claimant had suffered amputation of his right thumb. The accident occurred on 26.09.2003 at 6.30 a.m. and on the same day at 7.00 a.m., he was examined by

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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one Dr. S. V. Murgod in his hospital at Sankeshwar. He has noted the following injuries in Ex.P5-wound certificate:

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“Injuries: Circular cut lacerated wound to right thumb bone area cutting through and through exposing the underlying bone, bleeding wound is smelling of kerosene and studded with Rx given 1) …….. 2) Tab. Ampoxin, 3) under sedation the would stitched with No.4 Vicryl and explained to the patient about viability of the thumb as far as it’s survival. Patient refused to stay in the hospital & hence discharged against medical advise & instruction to attend some other higher centre.

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DOA 26/09/2003, DOD 26/09/2003

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Age of injury: Fresh and recent

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Gravity of Injury: Grievous.

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Cause of injury: of Vehicular accident.”

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Claimant has also spoken about the fact that the

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amputation of the right thumb was only on account of accident involving the offending auto-rickshaw bearing registration No.KA-23/6472. Subsequently, PW2 had examined him and he has issued the disability certificate as per Ex.P11. X-ray report is also produced as per Ex.P12 and Ex.P14 is the X-ray film.

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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11. Even though PW2 assessed the disability at 50%,

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the learned Tribunal has correctly assessed the whole body disability at 30% by placing reliance on Schedule-III of the Employee’s Compensation Act, 1923. Therefore, the said finding of the learned Tribunal is affirmed. The learned Tribunal has taken the age of the claimant as 30 years based on the evidence produced before it and therefore, the relevant multiplier applicable to the said age is ‘17’. Learned Tribunal has taken the income of the claimant at Rs.3,000/per month. Since the accident is of the year 2003, as per the chart prepared by the Karnataka State Legal Services Authority, the notional income ought to have been taken at Rs.3,250/- per month. Since the claimant has suffered amputation, the loss of future prospects will also have to be taken into account while computing loss in the earning capacity. Since he was aged 30 years, 40% of his established income will have to be taken towards loss of future prospects. Accordingly, loss in the earning capacity is recomputed, which is as follows:

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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Rs.3,250 + Rs.1,300 (40% future prospects) = Rs.4,550/-

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Rs.4,550 x 12 x 17 x 30% (disability)=2,78,460/-

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Since the claimant has suffered amputation to the right thumb, a sum of Rs.35,000/- is awarded under the head of pain and sufferings. In order to establish the medical expenses, the claimant has not produced any records. Since the claimant had suffered amputation of the right thumb, a sum of Rs.10,000/- is awarded towards medical expenses, conveyance charges, attendant charges and nourishing food.

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Since he had suffered amputation of the right thumb, he would not have been able to do any gainful work for a period of four months. Therefore, for loss of earnings during the laid up period, the claimant is entitled to a sum of Rs.13,000/- (Rs.3,250 x 4).

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Therefore, the total compensation awardable to the appellant-claimant is as under:

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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*HEAD*	*Amount*
	*(in Rs.)*
Towards pain and sufferings	35,000/-
Towards loss of earning capacity along with future prospects	2,78,460/-
Towards medical expenses, conveyance charges, attendant charges & nourishing food	10,000
Towards loss of income during the laid-up period	13,000
Total	3,36,460/-

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The learned Tribunal has awarded a compensation of Rs.2,08,600/-. Therefore the enhanced compensation is Rs. 1,27,860/-. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till the date of payment, which shall be deposited by the Insurance Company within a period of eight weeks from today. However, the claimant is not entitled to the interest for the period delay of 952 days which was caused in filing the appeal.

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Registry to transmit the amount in deposit, if any, made by the insurance company to the learned Jurisdictional Senior Civil Court for disbursement.

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10 -

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MFA No. 21658 of 2010 C/W MFA No. 24079 of 2012

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In view of the above, the appeal filed by the

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appellant-Insurance Company is dismissed and the appeal filed by the claimant is allowed in part.

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In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/JUDGE

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YAN

Ibrahim Ismil Peeragoal v. Savanth Bupal Kantti

Case brief

What is this about?

What did the court decide?

Ibrahim Ismil Peeragoal v. Savanth Bupal Kantti

Case brief

What is this about?

What did the court decide?

What the court decided

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