Partly allowed

Sri. Muneer Ahmed Khan v. Sri. Mudasir @ Mudasir Khan

Karnataka HC4 Nov 2022MFA/4321/2018

Case brief

AI extract

What is this about?

The High Court allowed this appeal filed under Section 173(1) of the Motor Vehicles Act against an award of Rs. 10,89,900. The Court enhanced compensation by increasing disability percentage from 40% to 79%, adding provisions for future prospects, and awarding higher amounts for pain, amenities, and lost marriage prospects.

What did the court decide?

Enhanced compensation of Rs. 14,44,716/- awarded over the Tribunal's award, with interest at 6% p.a., modifying the original judgment and award.

Sri. Muneer Ahmed Khan Vs Sri. Mudasir @ Mudasir Khan — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.No.4321/2018 (MV-I)

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BETWEEN:

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SRI. MUNEER AHMED KHAN S/O. SRI. DAWOOD KHAN, AGED ABOUT 29 YEARS, R/O. NO. 329, 5TH CROSS, KABIR TEMPLE ROAD, MANDI MOHALLA, MYSORE-570 001. … APPELLANT

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(BY SMT.SUMA KEDILAYA, ADVOCATE FOR SRI PADMANABHA KEDILAYA V, ADVOCATE)

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AND:

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SRI. MUDASIR @ MUDASIR KHAN S/O. SRI. RASOOL KHAN, AGED ABOUT 43 YEARS, R/O NO. 473/1, 1ST CROSS, MUNESHWARANAGAR, UDAYAGIRI, MYSORE-570 019.

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SRI. RASOOL KHAN S/O. LATE HUSSAIN KHAN, MAJOR, R/O. NO.473/1, 1ST CROSS, MUNESHWARANAGAR, UDAYAGIRI, MYSORE-570 019.

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SRI. ABDUL WAHAB S/O. SRI. M. USMAN, MAJOR, NO.147, 1ST MAIN, 5TH CROSS, SHANTHINAGAR, MYSORE-570 023.

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UNITED INDIA INSURANCE CO. LTD., PADMALAYA, II FLOOR, NO.1259, VINOBHA ROAD, SHIVARAMPET, MYSURU-570 001, DIVISIONAL OFFICE.

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(BY SRI L SREEKANTA RAO, ADV. FOR R4; NOTICE TO R1 AND R2 IS DISPENSED WITH V/O. DT.16.03.22, NOTICE TO R3 IS DISPENSED WITH V/O. DT.06.11.19)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05/09/2017, PASSED IN MVC NO.45/2015, ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES AND MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL 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 under Section

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173(1) of Motor Vehicles Act, 1988 (hereinafter referred

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to as 'MV Act' for short), challenging the judgment and

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award passed in MVC No.45/2015 dated 05.09.2017 by

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the MACT and Principal Judge, Small Causes and Senior Civil Judge, Mysuru seeking enhancement of the compensation.

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The undisputed facts are that the claimant

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has sustained injuries in a road traffic accident that occurred on 22.06.2014 at about 2.00 p.m., at the place of Mysuru-T.Narasipura Road opposite to Annapoorneshwari layout, Chikkahalli between the car bearing No.KA-01-N-3292 (offending vehicle) and motorcycle bearing No.KA-55-R-1874 in which the claimant was a pillion rider. Therefore, the claimant has filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation.

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The Tribunal after considering the facts and

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circumstances and evidence on record, has granted a compensation of Rs.10,89,900/- with interest at the rate of 9% p.a. from the date of petition till the date of realisation.

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Being aggrieved by the lesser quantum of

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compensation, the present appeal is filed.

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Learned counsel for the appellant/claimant submitted that the quantum of compensation awarded by the Tribunal is meager one and prays for enhancement of compensation.

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On the other hand, learned counsel for the

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respondent No.4-Insurance Company submitted that the compensation awarded by the Tribunal is just and proper

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and therefore, prays for dismissal of the appeal.

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The Tribunal has granted the compensation

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under various heads as follows:

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Sl.No.	Particulars	Amount (in.Rs.)
1.	Towards injury, pain and sufferings	25,000.00
2.	Towards medical expenses	2,65,000.00
3.	Towards loss of income during laid up period and rest	40,500.00
4.	Towards loss of future income	7,34,400.00
5.	Towards loss of amenities of life	25,000.00
	Total	10,89,900.00

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The wound certificates at Exs.P17 to 19,

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discharge summaries at Exs.P22 & 23 and evidence of Doctor-PW.3 proved that the claimant had suffered acute sub-arachnoids hemorrhage, diffuse axonal injury and fracture of C6 vertebra and thereby suffered physically and mentally.

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The above said injuries are grievous in nature. The injuries caused to the claimant affecting both physically and mentally. The claimant suffered traumatic

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injury to the brain, fracture of cervical vertebra C6. Therefore, the compensation of Rs.25,000/- awarded under the head 'pain and suffering' is on the lesser side. Therefore, a sum of Rs.75,000/- is awarded under the said head.

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The claimant was admitted in the hospital for a period of 44 days as inpatient and quantum of compensation awarded under the medical expenses and hospital charges at Rs.2,65,000/- is found to be correct

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as per the actual medical bills produced by the claimant. Therefore, the same is kept in tact.

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The Tribunal had considered the income of the claimant at Rs.9,000/- p.m. and held 40% disability, which is on the lesser side. PW.3-Doctor, neuro surgeon in Narayana Hrudayalaya Surgical Hospital, Mysuru, who has treated the claimant, has stated in his evidence regarding the disability occurred to the claimant that, on physical findings, the claimant had suffered disability of 20% towards speech, 25% towards ataxia, 50% towards motor system and 20% towards sensor system. Therefore, by using a formula, it is the assessment of the disability of the claimant as 78.9%. It is also opinion of PW.3-Doctor that even continuous physiotherapy cannot improve the condition of the claimant. The doctor is correct that the claimant had suffered motor system, ataxia and affecting his speech and also affecting sensor system then these ailments suffered in the accident by mere physiotherapy treatment cannot improve the

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condition of the claimant. Therefore, I do not see any exaggeration in the evidence of PW.3-Doctor, where PW.3-Doctor, who is an expert on the medical field being neuro surgeon, has assessed the permanent physical disability at 78.9%. Without there being any base holding 40% physical disability by the Tribunal, is not correct. What the doctor says and more so if the doctor is treating doctor, his evidence is more reliable regarding disability unless if any exaggeration is proved. Therefore,

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the Tribunal has committed an error in taking lesser percentage of physical disability. Therefore, as per PW.3doctor's assessment, the permanent physical disability is taken at 78.9%. The claimant is stated to be a worker in Silver Factory, Mysore. Due to this disability, the claimant is not able to do his work and he is constrained to remain in the house as his mental condition is affected at worst. The monthly notional income taken by Tribunal is found to be correct and there is no exaggeration on the notional income held by the Tribunal.

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Since the claimant has suffered 78.9%

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permanent physical disability both on physical and mental aspect and lost every prospects in future life, therefore, considering the age of the claimant is 26 years, 40% of income is to be added towards 'loss of future prospects of his life' as per the decision of Hon'ble Apex Court in the case of National Insurance Company Ltd., Vs. Pranay Sethi and others reported in (2017)16 SCC 680 and appropriate multiplier applicable is '17'.

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This Court in the case of New India Assurance Company Ltd., Vs. Abdul & Others¹ , has held that in the case of injury suffered like in the present case, additional income has to be added towards loss of future income due to disability as the claimant was working in a Silver Factory, Mysore who was aged 26 years as on the date of the accident. Accordingly, 40% is

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1 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018

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DD.27.05.2022

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to be added towards loss of future prospects of life where the claimant is suffered 78.9% of disability and this percentage of disability is rounded off to 79% for the purpose of calculation. . Therefore, the loss of future income due to disability is re-assessed and quantified as follows:

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Rs.9,000/- + Rs.3,600/- (40% of Rs.9000)=12,600/-. Rs.12,600/- x 79% x 17 x 12 = Rs.20,30,616/-.

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Accordingly, a sum of Rs.20,30,616/- is

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awarded under the head 'loss of future income due to disability including loss of future prospects in life'.

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The loss of income during medical treatment and laid up period can be taken at least for a period of 6 months as the claimant was admitted in the hospital as inpatient for a period of 45 days and also considering his mental and physical condition. Accordingly, a sum of Rs.54,000 is awarded under the head 'loss of income during laid up period'.

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Further, a sum of Rs.25,000/- under the

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head 'loss of amenities' awarded by the Tribunal is on

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the lesser side. The same is enhanced to Rs.50,000/-.

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Further, a sum of Rs.50,000/- is awarded

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under the head 'loss of marriage prospects in life' and a

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sum of Rs.10,000/- awarded under the head 'food, nourishment, etc.'

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Thus, in all, the claimant is entitled for the

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following sums:

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Sl.No.	Particulars	Compensation awarded (in Rs.)
1.	Pain and sufferings	75,000.00
2.	Medical expenses	2,65,000.00
3.	Loss of income during laid up period	54,000.00
4.	Loss of future income	20,30,616.00
5.	Loss of amenities	50,000.00
6.	Loss of marriage prospects in life	50,000.00
7.	Conveyance, food, nourishment, etc.	10,000.00
	TOTAL	25,34,616.00

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The Tribunal has awarded the compensation

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of Rs.10,89,900/-, but the appellant/claimant is entitled to total compensation of Rs.25,34,616/ -. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.14,44,716/- (Rs.25,34,616 - Rs.10,89,900) along with interest at the rate of 6% p.a., from the date of petition till its realization, in addition to what has been awarded by the Tribunal.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is allowed-in-part .

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ii. The judgment and award passed by the Tribunal in MVC No.45/2015 is hereby modified holding the claimant is entitled for enhanced compensation of

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Rs.14,44,716/- with interest @ 6% p.a., from the date of petition till its realization, in addition to what has been awarded by the Tribunal.

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iii. The claimant is not entitled for interest for the delayed period of 145 days in filing the appeal.

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