Partly allowed

Hafizulla @ Hafiseulla @ M.S.Hafisulla @ Hafeezulla v. Sunil Kumar G M

Karnataka HC20 Oct 2022MFA/2505/2020

Case brief

AI extract

What is this about?

In a motor accident appeal, this court enhanced the compensation awarded to a KSRTC driver who claimed 100% functional disability. The court held that while physical disability was 60%, functional disability was assessed at 20% due to inability to drive, modifying the award to Rs.13.28 lakhs.

What did the court decide?

Enhancement of compensation by Rs.4,53,473/- plus interest at 8% p.a. to claimant.

Hafizulla @ Hafiseulla @ M.S.Hafisulla @ Hafeezulla… — Motor Accident Claims | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 20TH DAY OF OCTOBER, 2022

¶3

PRESENT

¶4

THE HON'BLE MR. JUSTICE K.SOMASHEKAR

¶5

AND

¶6

THE HON’BLE MR. JUSTICE C.M.JOSHI

¶7

M.F.A.No. 2505 OF 2020 (MV-D)

¶8

BETWEEN:

¶9

HAFIZULLA @ HAFISEULLA @M.S.HAFISULLA @ HAFEEZULLA S/O.ABDULA SATTAR @ SATTAR SAB AGED ABOUT 49 YEARS OCC;NIL R/AT NEAR JAMIYA MASJID BILICHODU TALUK - JAGALURU DAVANAGERE DISTRICT

¶10

...APPELLANT

¶11

(BY SMT.SARITHA KULKARNI,ADVOCATE)

¶12

AND

¶13

SUNIL KUMAR G.M S/O MANJAPPA AGED ABOUT 32 YEARS OCC; PRIVATE BUS DRIVER R/AT KONDAJJI TALUK - HARIHAR DISTRICT -DAVANAGERE

¶14

MANJUNATHA S

¶15

¶16

S/O.BASAPPA SRI BANASHANKARI MOTOR SERVICES AT POST KAMMANAHALLI TALUK - HARAPANAHALLI DAVANAGERE DISTRICT - 577 001

¶17

THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE SHIVA NARADAMUNI PLAZA DENTAL COLLEGE ROAD DAVANAGERE - 577 001

¶18

…RESPONDENTS

¶19

(BY SRI K.SRIDHARA, ADVOCATE FOR R-3; NOTICE TO R-1 & R-3 IS DISPENSED WITH V/O DATED 4-6-2021)

¶20

THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 10.01.2020 IN MVC NO.856/2016 ON THE FILE OF THE ITINIARY SENIOR CIVIL JUDGE, JAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSTION AND ETC.

¶21

THIS M.F.A. COMING ON FOR HEARING, THIS DAY C.M.JOSHI J ., DELIVERED THE FOLLOWING:

¶22

JUDGMENT

¶23

Being aggrieved by the judgment and award dated

¶24

10.01.2020 passed in MVC No.856/2016 by the learned Itinerary Senior Civil Judge and MACT, Jagalur, partly allowing the claim petition against respondent Nos. 2 and 3

¶25

¶26

granting compensation of Rs.8,75,029/- together with interest, the petitioner has approached this court in appeal seeking enhancement.

¶27

The parties are referred to as per their

¶28

nomenclature before the Tribunal for the sake of convenience.

¶29

The brief facts are as below:

¶30

The petitioner contending that on 14-2-2016 while he was riding motor cycle bearing No.KA.17.EP.1325 from Davanagere towards Bilichodu, near Basavanal village, at about 3.30 p.m.; the driver of bus bearing No.KA.17.B.5709, drove the said bus in a rash and negligent manner and dashed against the motor cycle of the petitioner; which resulted in extensive injuries to him; had approached the Tribunal for compensation. The petitioner also contended that after the accident, he was shifted to Chigateri hospital, Davanagere and later to Bapuji Hospital and thereafter, at SSIMS Hospital as inpatient and had to undergo surgeries by spending huge

¶31

¶32

amount and the injuries resulted in 100% disability; has claimed the compensation of Rs.96,00,000/-. In support of such contention, it was contended that the petitioner was aged about 45 years, working as driver- cumconductor in KSRTC earning monthly income of Rs.29,000/- and that he was forced to resign from the job and therefore, the compensation as claimed be allowed.

¶33

On issuance of notice, respondent No.1 who was the driver of private bus did not appear and as such, placed exparte. Respondent No.2, the owner and respondent No.3, the insurer appeared through their counsel and filed their objections.

¶34

Respondent No.2 contended that the petitioner be put to strict proof of the contentions taken up by him in the petition and there was no such negligent driving by the bus driver and therefore, awarding compensation do not arise. However, if at all, compensation is to be awarded, the vehicle was insured by respondent No.3 and as such, the liability has to be fastened upon respondent No.3.

¶35

¶36

Respondent No.3- Insurance Company filed objections contending that the compensation claimed by the petitioner is highly exhorbitant, imaginary and untenable and denied the age, income and occupation of the petitioner. The contentions of the petitions are meticulosuly and specifically denied by respondent No.3. It is further denied that the petitioner had sustained total disability and due to his incapacity to work on account of the injuries, but contended that he had applied for voluntary retirement and therefore, he is not entitled for the compensation as claimed in the petition.

¶37

On the basis of the above pleadings, the Tribunal

¶38

framed the issues and answered them in the affirmative and partly affirmative as below and proceeded to pass the

¶39

impugned judgment.

¶40

Issues	Answer
1. Whether the petitioner proves that on	In the
14.2.2016 he came to Davanagere at 3.30 p.m., in his motor cycle bearing No.KA.-17/EP- 1325 for purchasing of household commodities and after purchasing the same the petitioner in order to go to Bilichodu was riding his Bike near Basavanalu village, Jagalur Taluk, at that	affirmative.

¶41

¶42

time the respondent No.1 that is rider of Banashankari bus bearing Reg.No.KA.17.B5701 drove it in a very rash and negligent manner endangering the human life and while over taking the another bus drove the said bus to the extreme right side of the road and dashed to the petitioner's vehicle and caused the accident, thereby the petitioner fell down and sustained grievous injuries?

¶43

Whether petitioner is entitled for compensation? If so, what quantum and from Partly in the whom? affirmative. 3. What order or award? As per the final order.

¶44

In coming to the above conclusions, the Tribunal has considered the evidence of the petitioner as PW1 and the other witnesses as PWs 2 to 5 and documents at Exs.P1 to P46. It has also considered the evidence of RW1 to RW4

¶45

and Exs.R1 to R6 and awarded compensation of Rs.8,75,029/- under different heads as below:

¶46

Pain and sufferings Rs.	40,000/-
Medical bills Es.	2,31,301/-
Loss of income during laid up period Rs.	62,964/-
Loss of future earning due to disability Rs.	5,10,274/-
Loss of amenities, conveyance and nourishment and attendant charges Rs.	30,000/-
Total Rs.	8,75,029/-

¶47

¶48

Now aggrieved by the quantum of the

¶49

compensation awarded by the Tribunal which is to the tune of Rs.8,75,029/-, the petitioner has approached this Court in appeal seeking enhancement.

¶50

The appellant contends that he was working in KSRTC as a drivercumconductor and earning Rs.29,000/- per month and he had put in a service of 16 years and due to accidental injuries, he is unable to walk, stand and there is a gaping wound on his right leg and as such, he is completely disabled. It is contended that he was forced to resign from the job and therefore, there is functional disability of 100% though the permanent physical disability is 60%. It is contended that the Tribunal erred in assessing the functional disability at 12% and therefore, the assessment of the compensation is totally erroneous. Apart from this, the medical expenses and the compensation awarded under other heads are also termed to be abysmally low.

¶51

¶52

We have heard the learned counsel Smt. Sarita Kulkarni appearing for the appellant and the learned counsel Sri K. Sridhara, appearing for respondent No.3Insurance Company. Notice to respondent Nos. 1 and 2 is dispensed with at the request of the counsel for the appellant at his risk. The Tribunal records have been secured and perused.

¶53

The fact that the accident occurred due to actionable negligence on the part of the driver of the bus insured by respondent No.3 is not in dispute. The police papers produced by the petitioner before the Tribunal show that the chargesheet was laid against the bus driver and therefore, there cannot be any doubt that actionable negligence has been proved by the petitioner. The fact that the bus was insured by respondent No.3 is also not in dispute and Ex.R1, the copy of the policy establishes the same.

¶54

The evidence on record shows that prior to the accident, the petitioner was working as driver- cum-

¶55

¶56

conductor in KSRTC and the pay slip produced by the petitioner at Exs.P21 to 24 establish the same. Therefore, there is no dispute that the monthly salary of the petitioner was Rs.20,987-95 paise as held by the Tribunal. Though it is contended that he was earning Rs.29,000/per month, no believable document was produced by the petitioner.

¶57

The calculation made by the Tribunal in respect of the multiplicand to consider the loss of income and future loss of income as may be found in para 32 cannot be found fault with. Moreover, there is no dispute in respect of the same also.

¶58

The main dispute appears to be the disability of the petitioner and whether such disability has resulted in 100% total functional disability?

¶59

To find an answer to this, we have perused the evidence placed on record. It is to be noted that, it has come in the evidence that since the petitioner was unable

¶60

¶61

to work as driver- cum- conductor, he took voluntary retirement. There is no evidence on record to show that he was terminated from services of KSRTC as he was incapacitated from working as a driver- cum- conductor. Ex.P25 shows that the petitioner voluntarily applied to the RTO to cancel his driving licence as he has become disabled. This document also shows that with his application to surrender the driving licence, he had submitted a medical certificate also. The Service Register produced at Ex.P37 also do not show that he has been terminated on account of his disability to work as drivercum- conductor, but, on the contrary, it says that he has applied for the voluntary retirement and as per the circular of KSRTC it has been accepted. Therefore, in the absence of any documentary evidence to show that the petitioner has to resign or opt for voluntary retirement on account of his disability, it cannot be concluded that loss of job was on account of the disability and as such, the injuries have resulted in 100% functional disability. It is to be noted that in case of any bodily injury incapacitating the employee to

¶62

¶63

do a particular job, the employer was bound to provide alternate job in any other section of his office. No such evidence is led by the petitioner. The official of the KSRTC has said in his cross examination that he has no knowledge about the same.

¶64

Having said so, whether the functional disability as held by the Tribunal at 12% is to be considered by this Court.

¶65

It is relevant to note that the petitioner had suffered fracture of upper 1/3rd of tibia and abrasion over the right knee measuring 4 x 3 cms. as per the wound certificate Ex.P6. The case sheet, discharge summary and other medical records produced show that the injuries have resulted in non heeling wound over the right leg and several operations were conducted and it has resulted in large non heeling ulcer. The discharge summary at Exs.P10,11, 12 show that the injury has resulted in non heeling wound. The photographs at Exs.P26, 27 and 28 also show the same.

¶66

¶67

On a careful perusal of these documents, we find that the assessment of the disability by the Tribunal at 12% appears to be without any basis. The disability certificate produced as Ex.P20 coupled with the deposition of PW3-Dr. Nitin shows that, there is a disability of 60% of the right lower limb. It is pertinent to note that the Doctor who assessed the disability may only opine about the physical disability, but he cannot opine about the functional disability. The functional disability has to be assessed by the Tribunal or the Court on the basis of the avocation of the disabled person vis a vis the disability suffered by him. Therefore, the evidence of PW3 so far as it relates to physical disability has to be considered, but not the functional disability.

¶68

On perusal of the above evidence on record, we come to the conclusion that the functional disability has to be assessed at 20% though the physical disability of right lower limb is assessed by PW3 at 60%. Anyhow, it has to be noted that the petitioner cannot work as a driver

¶69

¶70

henceforth. By considering these aspects, the

¶71

compensation has to be re-assessed by this Court.

¶72

It would be proper to award a sum of Rs.60,000/- under the head of pain and suffering instead of Rs.40,000/- awarded by the Tribunal. Sofar as the compensation awarded under the head of loss of income during laid dup period, it would be proper to award a sum of Rs.1,25,928/- instead of Rs.62,964/- by considering the laid up period as six months. Consequently, the compensation under the head of conveyance, nourishment and attendant charges are also to be enhanced from Rs.30,000/- to Rs.60,000/-. Sofar as, the compensation under the head of loss of future earnings due to disability is concerned, the same is calculated as: 27,284.40 x 12 x 13 x 20%= Rs.8,51,273/-, by adopting the multiplier of 13 for the age of 46 years and by taking future prospects at 30% as considered by the Tribunal. Thus, the petitioner is entitled to a total compensation of Rs.13,28,502/- under different heads as below:

¶73

¶74

Pain and sufferings	Rs. 60,000/-
Medical bills	Es. 2,31,301/-
Loss of income during laid up period	Rs. 1,25,928/-
Loss of future earning due to disability	Rs. 8,51,273/-
Loss of amenities, conveyance and nourishment and attendant charges	Rs. 60,000/-
Total	Rs.13,28,489/-
Less: Awarded by Tribunal	Rs. 8,75,029/-
Enhancement	Rs. 4,53,473/-

¶75

Thus, the petitioner is entitled to enhanced compensation of Rs.4,53,473/- in addition to what has been granted by the Tribunal together with interest at 8%

¶76

p.a. from the date of petition till its realisation.

¶77

Hence, we pass the following:

¶78

ORDER

¶79

(i) The appeal is allowed in part.

¶80

(ii) The impugned judgment and award dated 10-01-2020 passed in MVC No.856/2016 by the Tribunal is modified enhancing compensation by Rs.4,53,473/- together with interest at 8% p.a. from

¶81

the date of petition till its realization, in addition to the compensation awarded by the Tribunal.

¶82

¶83

(iii) The Insurance Company is directed to deposit the same together with interest within four weeks.

¶84

sd/JUDGE

¶85

Sd/JUDGE

¶86

tsn*

Hafizulla @ Hafiseulla @ M.S.Hafisulla @ Hafeezulla v. Sunil Kumar G M

Case brief

What is this about?

What did the court decide?

Hafizulla @ Hafiseulla @ M.S.Hafisulla @ Hafeezulla v. Sunil Kumar G M

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sri R Madhu Vs Sri M M Somanna

State by Cpi Vs Raju Poojary

Smt Srisaralamma Vs M/S Icici Lombard General Insurance Co. Ltd.

N.Jayalakshmi Vs Parameshwaraiah

Smt Mamatha K R Vs Sri K Shivamurthy

State of Karnataka Vs Narasimhamurthy @ Murthy