Partly allowed

Mr Badrudin Saheb v. Mr Pradeep Kumar M T

Karnataka HC3 Nov 2022MFA/9306/2018

Case brief

AI extract

What is this about?

In an appeal against a District Judge & MACT award, the High Court enhanced compensation awarded to a motor accident victim for pain and suffering, loss of amenities, attendant charges, and loss of earning capacity due to disability, totaling Rs. 2,95,100/-.

What did the court decide?

The appellant was granted enhanced compensation of Rs. 2,95,100/- along with interest at 6% per annum from the date of the petition.

Mr Badrudin Saheb Vs Mr Pradeep Kumar M T — Civil Procedure and Limitation | Karnataka HC (2022)

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M.F.A.9306/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 03^RD 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.9306/2018 (MV-I)

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BETWEEN :

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MR. BADRUDIN SAHEB S/O MR. DASTAGIRSAHEB AGED ABOUT 52 YEARS 5 CENTS COLONY PILICHAMUNDIKALLU KUVETTU VILLAGE GURUVAYANAKERE-574 214 BELTHANGADY TALUK

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...APPELLANT

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(BY SRI K.SHASHIKANTH PRASAD, ADVOCATE)

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AND:

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1 . MR. PRADEEP KUMAR M T S/O MR. SUKUMARAN PROPRIETOR DEEPTHI GAS AGENCIES J T ROAD VATAKARA KOZHIKODE-673 101 KERALA STATE

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2 . THE ORIENTAL INSURANCE CO. LTD. REP. BY DIVISIONAL MANAGER

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M.F.A.9306/2018

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2^ND FLOOR, RAJARAM BUILDING OPP. BUS STAND BADAGARA, CALICUT DIST. KERALA STATE

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RESPONDENTS

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(BY SRI C.SHANKARA REDDY, ADVOCATE FOR R2, R1-SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.06.2018 PASSED IN MVC NO.950/2017 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE, MEMBER, MACT, MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present appeal is filed by the

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appellant/claimant challenging the judgment and award dated 27.06.2018 in MVC.No.950/2017 passed by IV Addl. District Judge & Member, MACT, Dakshina Kannada, Mangalore, for seeking enhancement of compensation.

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M.F.A.9306/2018

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Brief facts of the case are that, on 01.10.2016 at 3.30 pm., when the claimant was standing near Nullipady Bazar, NH Road, Kasaba Village, Kasargod, at that time, the driver of the lorry bearing No.KL-18-D-6505 came at high speed and in a rash and negligent manner and dashed against the claimant. Thus, the claimant sustained injuries.

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The liability is not disputed by the Insurance Company as there was existence of insurance policy as on the date of the accident.

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The claimant filed a claim petition under Section 166 of M.V.Act., claiming compensation before the Tribunal. The Tribunal has partly allowed the claim petition and awarded compensation of Rs.5,05,250/with interest at 6% p.a., from the date of petition till the date of its realization. Being aggrieved by the same, the present appeal is filed before this Court.

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M.F.A.9306/2018

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5. The Tribunal has awarded the

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compensation under various heads as follows:

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Pain and sufferings	Rs. 60,000/-
Loss of income on the basis of disability	NIL
Loss of income during laid up period	Rs. 40,000/-
Loss of amenities in life	Rs. 25,000/-
Medical expenses	Rs.3,65,250/-
Attendant & food & nutrition charges	Rs. 10,000/-
Miscellaneous expenses	Rs. 5,000/-
Total	Rs.5,05,250/-

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As per Ex.P.4-wound certificate and other medical records coupled with evidence of doctor– P.W.2, it is proved that the claimant had suffered the following injuries:

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1. Fracture of left frontal bone, left orbit, left zygomatic arch, walls of left maxillary sinus,

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2. Fracture of L4-5 vertebra.

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3. Fracture of superaobital rim, frontal bone, 4. Comminuted fracture of let illium, public diastases,

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5. Fracture of sacrum,

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6. Rapture of urinary bladder, haemosinus involving ethamoid and sphenoid sinus,

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7. Rupture of urethra,

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8. Laceration just above the left eye brow and left sided black eye.

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M.F.A.9306/2018

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Therefore, the above said fractured injuries

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are grievous in nature. There are totally four fractured injuries. ORIF was done for left Maxilla fracture, left zmc fracture and left frontal bone fracture. The claimant was admitted in the hospital as inpatient for a period of 34 days. Therefore, the compensation of Rs.60,000/- awarded under the head injury, pain and suffering is found to be on the lesser side and the same is enhanced to Rs.80,000/- .

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The Tribunal has not awarded

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compensation under the head loss of income on the basis of disability on the ground that the claimant is able to walk without clutches as observed in the judgment at page No.12. This observation made by the Tribunal is not correct for the reason that, just because, the claimant is able to walk without clutches that does not mean that the claimant has not suffered functional disability affecting the earning capacity.

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M.F.A.9306/2018

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P.W.2-doctor has stated that the claimant has suffered disability at 19% on hip joint. As above discussed, the claimant had suffered fractured injuries and other grievous injuries affecting his urinary function. Therefore, certainly, the claimant had suffered physical disability affecting the earning capacity. Therefore, on the basis of the evidence available on record, it is just and proper to take functional disability at 15% affecting the earning capacity of the claimant as the claimant being a sales man, certainly, these fractures affects the earning capacity of the claimant working as a sales man. Hence, as per the principle of law laid down by the Hon’ble Apex Court in the case of Raj Kumar Vs.

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Ajay Kumar and Another¹ , functional disability to be taken at 15% as above discussed. The accident was caused in the year 2016. Therefore, the notional

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1 (2011) 1 SCC 343

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M.F.A.9306/2018

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income is taken at Rs.9,500/- per month in the absence of proof of income. The claimant was aged 51 years. Therefore, the appropriate multiplayer applicable is “11”. Hence, the loss of earning capacity due to disability is re-assessed and quantified as follows:

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Rs.9,500/- x 15% x 11 x 12=Rs.1,88,100/-

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Accordingly, Rs.1,88,100/- is awarded under the head loss of earning capacity due to disability.

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The compensation of Rs.40,000/- awarded by the Tribunal under the head loss of income during laid up period is modified by taking the income at Rs.9,500/- for a period of six months. Hence, Rs.57,000/- is awarded under the head loss of income during laid up period.

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The compensation of Rs.25,000/- awarded under the head loss of amenities in life is on the lesser

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M.F.A.9306/2018

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side and the same is enhanced to Rs.50,000/- considering the nature of injuries sustained by the claimant.

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The compensation of Rs.3,65,250/-

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awarded under the head medical expenses is as per the actual bills produced, which needs no interference. Hence, it is kept in tact.

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The compensation of Rs.10,000/- awarded under the head attendant, food & nutrition charges and Rs.5,000/under the head miscellaneous expenses are on the lesser side and the same is enhanced to Rs.30,000/-.

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The doctor has opened that the internal fixation was done to the claimant and the same is to be removed in future. Therefore, compensation of Rs.30,000/- is awarded under the head future

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M.F.A.9306/2018

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medical expenses including removal of internal fixation.

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Thus, in all, the appellant/claimant is

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entitled to the compensation as follows:

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Pain and sufferings	Rs. 80,000/-
Loss of income on the basis of disability	Rs.1,88,100/
Loss of income during laid up period	Rs. 57,000/-
Loss of amenities in life	Rs. 50,000/-
Medical expenses	Rs.3,65,250/-	Kept in tact
Attendant & food & nutrition charges & Miscellaneous expenses	Rs. 30,000/-
Future medical expenses	Rs. 30,000/-
Total	Rs.8,00,350/-

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The Tribunal has awarded compensation of Rs.5,05,250/-, but the appellant/claimant is entitled to total compensation of Rs.8,00,350/- . Hence, the appellant/claimant is entitled to enhanced compensation of Rs.2,95,100/- (Rs.8,00,350/- - Rs.5,05,250/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.2,95,100/-

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M.F.A.9306/2018

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along with interest at the rate of 6% per annum from the date of petition till the date of realization in addition to what has been awarded by the Tribunal. Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed-in-part .

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The impugned judgment and award dated 27.06.2018 in MVC.No.950/2017 passed by IV Addl. District Judge & Member, MACT, Dakshina Kannada, Mangalore, is modified to the extent that the appellant/claimant is entitled to enhanced compensation of Rs.2,95,100/- along with the rate of interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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Draw award accordingly.

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No order as to costs.

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M.F.A.9306/2018

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The appellant/claimant is not entitled for interest

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for the delay period of 9 days in filing the appeal.

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Registry is directed to transmit the TCR along with a copy of this order.

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Sd/JUDGE

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Mr Badrudin Saheb v. Mr Pradeep Kumar M T

Case brief

What is this about?

What did the court decide?

Mr Badrudin Saheb v. Mr Pradeep Kumar M T

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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