Partly allowed

Liyakath Alias Liyakath Ali Khan v. Parandhamaiah

Karnataka HC4 Aug 2022MFA/6746/2017

Case brief

AI extract

What is this about?

The High Court Bench enhanced the compensation awarded to an appellant for serious multiple leg fractures sustained in a motor accident. Considering severe disability, notional income, and medical evidence, the court recalculated loss of earning capacity and increased total compensation from Rs. 3.57 lakh to Rs. 7.74 lakh with adjusted interest.

What did the court decide?

Modification of Tribunal award to grant additional compensation of Rs. 4,16,600/- bringing total to Rs. 7,74,148/- with 6% interest.

Liyakath Alias Liyakath Ali Khan Vs Parandhamaiah — Medical Negligence | Karnataka HC (2022)

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1 MFA NO.6746/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF AUGUST, 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.6746/2017 (MV-I)

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BETWEEN:

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LIYAKHATH ALIAS LIYAKATH ALI KHAN, S/O AMIR KHAN, AGED ABOUT 41 YEARS, R/AT NO.01, KRISHNAPPA LAYOUT, NEAR MASIJID, PILLAANAHALLI, GOTTIGERE POST, BANNERGHATTA ROAD, BENGALURU-560083.

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… APPELLANT

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(BY SRI. VISHWANATHA K., ADVOCATE) AND:

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PARANDHAMAIAH, S/O RAMACHANDRA, NO.14/15, 4^TH MAIN, BOB COLONY, 5^TH PHASE, J.P.NAGAR, BENGALURU-560078. (R.C.OWNER OF TRACTOR & TRAILER BEARING REG.NO.AP-03-W-4031/32)

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THE REGIONAL MANAGER, THE UNITED INDIA INSURANCE COMPANY LTD., NO.36/4, OPP.THIRTHA ASHRAMA, KOTHANUR MAIN ROAD, BENGALURU-560078. (POLICY NO.0704813116P10034381, VALID FROM 10/04/2016 TO 09/04/2017)

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... RESPONDENTS (BY SRI. S.V.HEGDE, MULKHAND, ADVOCATE FOR R2, R1-NOTICE DISPENSED WITH V/O DATED 10.03.2022)

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2 MFA NO.6746/2017

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.05.2017 PASSED IN MVC NO.5925/2016N ON THE FILE OF THE XXI ACMM & 23^RD ADDITIONAL SMALL CAUSE JUDGE, BENGALURU, PARLTY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THIS M.F.A. 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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This appeal is filed under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as ‘MV Act’ for brevity) by the appellant-claimant challenging the judgment and award dated 29.05.2017, passed in MVC No.5925/2016, on the file of Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru, (hereinafter referred to as ‘the Tribunal’ for brevity) seeking enhancement of compensation.

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Brief facts:

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It is submitted that on 18.08.2016 at about 6.45 p.m., the appellant was walking on the mud road at Pillaganahali, Krishnappa Layout, Gottigere, Bannerughatta

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3 MFA NO.6746/2017

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Road, Bengaluru. At that time a Tractor with Trailer bearing registration No.AP-03-W-4031/2032, coming from opposite direction driving with a rash and negligent manner so as to endanger to human life suddenly moved the said tractor. As a result of which, the trailer was turtled and fallen on the appellant. It is further submitted that the people gathered at the spot and removed the mud and trailer which was fallen on the appellant and he was immediately shifted to Vijayashree Hospital, Gottiger, Bengaluru, wherein he was given first aid treatment and later he was taken to NIMHANS, Bengaluru. The appellant was thereafter shifted to Sanjay Gandhi Hospital, Bengaluru. Wherein he was admitted as an inpatient and undergone surgery and sustained proximal tibia fracture with medial malleolous of right leg and fracture shaft left femur, fracture promixmal disability. Due to which he is unable to sit, walk squat, climb stairs, use Indian type toilet. It is further case of the appellant that prior to the accident he was hale and healthy and working as a welder and was earning a sum of Rs.20,000/- per month. But due to the accident he is unable to do his normal routine.

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4 MFA NO.6746/2017

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Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.3,57,500/-, along with interest at 8% per annum from the date of petition till the date of deposit. The Tribunal held respondent No.2 insurer, liable to pay the compensation.

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Heard arguments of the learned counsel for the appellant and the learned counsel for respondent No.2 – insurance company and perused the materials on record.

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The learned counsel for the appellant

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submitted that the quantum of compensation awarded under various heads is on lesser side. Therefore, seeks for enhancement of the compensation.

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On the other hand, the learned counsel appearing for the second respondent – insurance company submits that the quantum of compensation awarded and

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5 MFA NO.6746/2017

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the rate of interest awarded by the Tribunal is on higher side. Therefore, submitted that there is no ground available for making enhancement. Hence, prays for dismissal of the appeal.

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The compensation awarded by the Tribunal is

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as follows:

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Loss of Future Income	: Rs.	1,58,400/-
Pain and Suffering	: Rs.	50,000/-
Loss of Amenities	: Rs.	15,000/-
Medical bills	: Rs.	89,048/-
Conveyance and Nourishment	: Rs.	20,000/-
Future Medical Expenses	: Rs.	25,000/-
	: Rs.	3,57,488/-

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Exhibit-P2 is the Wound Certificate. Exhibit-P8

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is the Discharge Summary. Exhibit-P16 are the X-ray films. Exhibit-P15 is the case sheet and Exhibit-P17 are photographs of the claimant which proves, that the claimant had suffered the following injuries:

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“proximal tibia fracture with medial malleolous of (R) leg, fracture shaft (L) femur, fracture proximal Tibia (L) leg.”

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6 MFA NO.6746/2017

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PW-3, Doctor has stated that the claimant has suffered fracture injuries. The Tribunal awarded compensation of Rs.50,000/- towards injuries pain and suffering which is found to be on lesser side, considering the nature of injuries above stated. Therefore, the compensation under the head ‘Pain And Suffering’ is enhanced to Rs.70,000/- .

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Further, the compensation awarded under the head ‘ Loss Of Amenities’ awarded by the Tribunal at Rs.15,000/- is on a lesser side and the same is enhanced to Rs.40,000/- .

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The compensation awarded under the head ‘Medical Bills’, Conveyance and Nourishment and Future Medical Expenses, at Rs.89,048/-, Rs.20,000/- and Rs.25,000/- respectively, are found to be correct and appropriate. Therefore, these do not need interference.

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7 MFA NO.6746/2017

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The Tribunal awarded compensation of Rs.53,400/- towards Loss Of Future Income which is on lower side. The Tribunal has considered notional income at Rs.8,000/- per month and taken only 11% as functional disability, which is on lower side. The accident was occurred in the year 2016. Therefore, as per the chart of Karnataka State Legal Services Authorities the notional income at 9,000/- per month is to be taken for consideration. PW-3 – Doctor who has treated the claimant has assessed the permanent physical disability of lower limb as Mobility component as 90%, stability component as 90% and additional points as 10%. Further he has stated that Mobility Component : (a) Active range of movement 90% (Hip 30%, nee 30%, Ankle 30%), (b) Muscle power 90%, (Hip 30%, Knee 30%, Ankle 30%) and finally given finding that the total permanent physical disability to the whole body from (both) lower limb is 31%, towards the whole body. The claimant has suffered

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8 MFA NO.6746/2017

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four fractures injuries which are grievous in nature and causing fracture of both left and right legs of tibia and femur. It is revealed from the evidence of PW-3, Doctor that the claimant is depending upon wheel chair and it is stated by the Doctor that about 8090% of the work to be performed through wheel chair only. Therefore, considering the evidence of the PW-3 and also considering other documentary evidence i.e., wound certificate, discharge summary and case sheet, since the claimant was doing coolie work and now is constrained to confine to the wheel chair only. Therefore, he cannot perform work as coolie. Therefore, I do not find any exaggeration in the evidence of PW-3, Doctor. Taking into consideration the functional disability considering the avocation of the claimant who is coolie and the nature of injuries sustained as above discussed and the criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj

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9 MFA NO.6746/2017

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Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343, at para Nos.12, 13 and 19, the total functional disability of the claimant due to the injuries is taken at 31% to the whole body. The age of the claimant at the time of the accident was 40, therefore the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla

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Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘15’. Therefore, the Loss Of Earning Capacity Due To Disability is recalculated and re-quantified as follows:

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Rs.9,500 x 31/100 x 15 x 12 = Rs.1,38,600/-

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Hence, the appellant is entitled for a total enhanced compensation, under various heads as follows:

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10 MFA NO.6746/2017

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Loss of Future Income	: Rs.	5,30,100/-
(9,500 x 31% x 15 x 12) Pain and Suffering	: Rs.	70,000/-
Loss of Amenities	: Rs.	40,000/-
Medical bills	: Rs.	89,048/-
Conveyance and Nourishment	: Rs.	20,000/-
Future Medical Expenses	: Rs.	25,000/-
	: Rs.	7,74,148/-

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Therefore, the appellant is awarded a total compensation of Rs.7,74,148/- as against the compensation awarded by the Tribunal at Rs.3,57,488/-. Hence, the appellant is entitled for an additional compensation of Rs.4,16,600/- (Rs.7,74,148 – Rs.3,57,488), along with interest at 6% per annum from the date of filing of the petition till deposit.

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Accordingly, I 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 dated 29.05.2017, passed in MVC No.5925/2016,

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11 MFA NO.6746/2017

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on the file of Motor Accident Claims Tribunal, Court of Small Causes, at Bengaluru, is modified to an extent that the appellant – claimant is entitled for an additional compensation of Rs.4,16,600/(Rupees Four Lakh Sixteen Thousand Six Hundred Only), along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.

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iii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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iv. Draw award accordingly.

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Sd/JUDGE

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Liyakath Alias Liyakath Ali Khan v. Parandhamaiah

Case brief

What is this about?

What did the court decide?

Liyakath Alias Liyakath Ali Khan v. Parandhamaiah

Case brief

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