Partly allowed

Gulam Masoodh v. the Manager

Karnataka HC25 Nov 2022MFA/356/2017

Case brief

AI extract

What is this about?

The High Court allowed two appeals filed by an insurance company and a claimant against an award in a motor vehicle accident compensation case. The Court enhanced compensation to Rs.10,53,389/- by recalculating disability, adding new heads like loss of amenities and future income loss, and reduced the interest rate from 9% to 6% per annum.

What did the court decide?

Compensation enhanced to Rs.10,53,389/- with interest reduced to 6% per annum from the date of petition till deposit.

Gulam Masoodh Vs the Manager — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2022

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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.6994/2016 (MV-I)

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C/W

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M.F.A.NO.356/2017 (MV-I)

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IN M.F.A.NO.6994/2016:

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BETWEEN:

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RELIANCE GENERAL INSURANCE COMPANY LIMITED, I FLOOR, KRUTHIKA ORCADE, NEAR N.R.CIRCLE, H.N.PURA ROAD, HASSAN. HEREIN REPRESENTED BY THE REGIONAL OFFICE, NO.28, EAST WING, 5^TH MAIN, CENTENARY BUILDING, M.G.ROAD, BENGALURU-560 001. BY ITS ZONAL MANAGER (LEGAL). ...APPELLANT

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(BY SRI LINGARAJ H.S., ADVOCATE)

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AND:

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GULAM MASOODH, NOW AGED ABOUT 36 YEARS, S/O LATE GULAM MOHAMMED, R.P.O.ROAD, HALALINE ROAD, HASSAN-573 201.

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FAZIO AHAMMED, MAJOR,S/O JAHEER AHAMMED, NO.2690, OLD TALUK OFFICE ROAD, HASSAN-573201. ...RESPONDENTS

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(BY SRI GIRISH B. BALADARE, ADVOCATE FOR R1, VIDE ORDER DATED 13.03.2019, NOTICE TO R2 IS DISPENSED WITH)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.07.2016 PASSED IN MVC NO.894/2015 ON THE FILE OF THE 5^TH ADDITIONAL DISTRICT & SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF Rs.7,34,981/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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IN M.F.A.NO.356/2017:

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BETWEEN:

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GULAM MASOODH, S/O LATE GULAM MOHAMMED, AGED ABOUT 36 YEARS, R/AT: R.P.L.ROAD, HOLALINE ROAD, HASSAN-573201. ...APPELLANT

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(BY SRI GIRISH B. BALADARE, ADVOCATE)

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AND:

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THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD, 1^ST FLOOR, KRUTHIKA ARCADE, NEAR N.R.CIRCLE, H.N.PURA ROAD, HASSAN-573201.

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FAZLO AHAMEED, S/O JAHEER AHAMMED, AGED ABOUT 40 YEARS, R/AT NO.2690, OLD TALUK OFFICE ROAD, HASSAN-573201. ...RESPONDENTS

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(BY SRI H.S. LINGARAJU, ADVOCATE FOR R1, VIDE ORDER DATED 19.02.2017, NOTICE TO R2 IS DISPENSED WITH )

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.07.2016 PASSED IN MVC NO.894/2015 ON THE FILE OF V ADDITIONAL DISTRICT

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AND SESSIONS JUDGE, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.As. COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the respective parties.

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These appeals are filed by the Insurance Company

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and the claimant, respectively challenging the judgment and award dated 08.07.2016, passed in M.V.C.No.894/2015, on the file of the V Additional District and Sessions Judge, Additional MACT, Hassan (‘the Tribunal’ for short).

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The factual matrix of the case of the claimant before

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the Tribunal is that he met with an accident on 24.04.2015. While he was proceeding in a car, the offending vehicle came and dashed against him, as a result he sustained injuries. It is his claim that on account of the accident, he had suffered fracture of upper end of tibia left, dislocation of right ankle, dislocation of right foot and other injuries and immediately he was taken to Janapriya Hospital on 24.04.2015 and discharged on 12.05.2015 and he was an inpatient for a period of 19 days.

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The claimant in support of his contention examined himself as

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P.W.1 and examined the doctor as P.W.2, who assessed the disability of 34% to the left lower limb and 30% to the right lower limb and he was aged about 33 years. The Tribunal considering the material available on record, considered the disability of 32% and awarded compensation of Rs.7,34,981/- by taking the income of Rs.5,000/- per month.

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The learned counsel for the appellant Insurance Company brought to the notice of this Court that though the doctor assessed the disability to different limbs to the extent of 64% in total, the Tribunal accepted the disability of 32% without assigning any reasons in paragraph No.10 and hence it is erroneous and higher disability was taken. The learned counsel submits that the interest awarded at 9% per annum is on the higher side and hence it requires interference of this Court.

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The learned counsel for the claimant submits that the Tribunal committed an error in taking the income of Rs.5,000/- per month. It was an accident of the year 2015 and the notional income would be Rs.9,000/- per month. The learned counsel submits that the compensation awarded are meagre and no compensation is awarded under the head loss of

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income during the laid up period. Hence, it requires interference of this Court.

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Having heard the respective learned counsel and also on perusal of the material available on record, this Court has to re-appreciate the material on record and there is no dispute with regard to the fractures sustained by the claimant i.e., fracture of upper end of tibia left, dislocation of right ankle, dislocation of right foot and other injuries. Having taken note of the nature of injuries and he was an inpatient for a period of 19 days and subjected to surgery, awarding an amount of Rs.50,000/- under the head pain is on the lesser side and hence the same is enhanced to Rs.60,000/-.

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The Tribunal awarded an amount of Rs.2,67,781/- under the head medical expenditure and the same is based on the documentary evidence and hence it does not require interference of this Court.

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The Tribunal awarded an amount of Rs.10,000/under the head attendant charges. The injured was in the hospital for a period of 19 days and it was an accident of the year 2015 and hence it is enhanced to Rs.19,000/-.

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The Tribunal awarded an amount of Rs.50,000/-

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under the head loss of future prospects and when the Tribunal considered the loss of income due to disability and awarded Rs.3,07,200/-, the question of granting compensation under the head future prospects does not arise. The Tribunal committed an error in awarding an amount of Rs.50,000/- separately.

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The Tribunal committed an error in taking the income of Rs.5,000/- per month and the notional income would be Rs.9,000/- per month. Having perused the evidence on record, the doctor assessed the disability of 30% and 34% to different limbs and if 1/3^rd is taken, it comes to 21.3% and there was malunion with regard to tibia. When the tibia was malunited, it requires one more surgery for correction of the same. In a case of malunion, the Court has to take additional 2% of disability which comes to 23.3% and the same is rounded off to 24%.

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Now coming to the aspect of disability of 24% is concerned, this Court in the Division Bench judgment in the case of NEW INDIA ASSURANCE COMPANY LIMITED v. ABDUL

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AND OTHERS passed in M.F.A.NO.103807/2016 decided on

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27.05.2022, added 40% of future prospects and if 40% of future prospects is added to Rs.9,000/-, it comes to 12,600/-. Now the loss of future income comes to Rs.5,80,608/- (Rs.12,600/- x 12 x 16 x 24%).

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The doctor in his evidence has stated that it costs about Rs.50,000/- for future medical treatment and the Tribunal considered the same and the evidence is also clear that there was a malunion and requires one more surgery. Hence, I do not find any error committed in awarding Rs.50,000/- under the head future surgery cost.

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The Tribunal has not awarded any amount under the

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head loss of income during the laid up period. When he was an inpatient for a period of 19 days and suffered fracture of upper end of tibia left, dislocation of right ankle, dislocation of right foot and other injuries, it requires minimum four months for uniting of fracture and for rest. Hence, considering the income of Rs.9,000/- and laid up period as four months, the loss of income during the laid up period comes to Rs.36,000/- (Rs.9,000/- x 4).

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The Tribunal has not awarded any amount under the

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head loss of amenities and when the injured has suffered disability of 24% and aged about 34 years, he has to lead rest of his life with disability of 24% and hence it is appropriate to award an amount of Rs.40,000/- under the head loss of amenities.

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In all, the claimant is entitled for an amount of Rs.10,53,389/- as against Rs.7,34,981/-.

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This is an accident of the year 2015 and the matter was disposed of in the year 2016 within a span of one year and the interest awarded at 9% per annum is on the higher side. The Tribunal ought to have taken the interest in the nationalized bank as on the date of the accident and hence the same is reduced to 6% per annum from 9% per annum.

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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) Both the appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal 08.07.2016, passed in

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M.V.C.No.894/2015, is modified granting compensation of Rs.10,53,389/- as against Rs.7,34,981/- 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 amount in deposit is ordered to be transmitted to the concerned Tribunal forthwith.

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

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Sd/JUDGE

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Gulam Masoodh v. the Manager

Case brief

What is this about?

What did the court decide?

Gulam Masoodh v. the Manager

Case brief

What is this about?

What did the court decide?

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