Partly allowed

Rafiq @ Mahamad Rafiq S/O Vallisab v. Shivakumar S/O Muddavva

Karnataka HC2 Nov 2023MFA/103163/2019

Case brief

AI extract

What is this about?

In Misc. First Appeals against MACT awards, the High Court enhanced compensation for two injured claimants. The Court corrected the disability percentage and increased awards for pain and suffering and loss of amenities, raising total compensation for both claimants.

What did the court decide?

Both appeals allowed in part; compensation enhanced to Rs. 8,37,840/- and Rs. 4,77,080/- carrying 6% interest.

Rafiq @ Mahamad Rafiq S/O Vallisab Vs Shivakumar S/O… — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC-D:12759-DB MFA No. 103163 of 2019 C/W MFA No. 103164 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 2^ND DAY OF NOVEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL

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MISCELLANEOUS FIRST APPEAL NO. 103163/2019 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 103164 OF 2019

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IN MFA NO. 103163/2019

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BETWEEN:

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RAFIQ @ MAHAMAD RAFIQ S/O. VALLISAB MEERABAI,

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AGE: 29 YEARS, OCC: GOUNDI WORK, NOW NIL, R/O. MYAGERI,TAL: BAGALKOT, DIST: BAGALKOT.

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…APPELLANT

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(BY SRI. S. C. HIREMATH, ADVOCATE)

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Digitally
signed by
SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH Date:
2023.11.10
10:42:56
+0530

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AND:

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SHIVAKUMAR S/O. MUDDAVVA AGE: 37 YEARS, OCC: BUSINESS, R/O:AMBEDKAR NAGAR, KUSHTAGI, TAL: KUSHTAGI, DIST: KOPPAL.

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THE BRANCH MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD, OPP:BUS-STAND, BAGALKOT 587101, (POLICY ISSUED BY RIICO INDUSTRIAL AREA SITAPUR, JAIPUR, RAJASTHAN) (POLICY NO 10003/31/11/296297 VALIDITY FROM 15.11.2010 TO 14.11.2013)

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NC: 2023:KHC-D:12759-DB MFA No. 103163 of 2019 C/W MFA No. 103164 of 2019

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POLICE ISSUED BY BAGALKOT BRANCH.

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…RESPONDENTS

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(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R2, NOTICE TO R1 DISPENSED WITH)

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THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 03.04.2018 PASSED IN MVC NO.200/2012 ON THE FILE OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-II, BAGALKOT, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 103164/2019

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BETWEEN:

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SALEEM @ MAHAMAD SALEEM S/O. VALLISAB MEERABAI, AGE: 27 YEARS, OCC: GOUNDI WORK, NOW NIL, R/O. MYAGERI,TAL: BAGALKOT, DIST: BAGALKOT.

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…APPELLANT

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(BY SRI. S. C. HIREMATH, ADVOCATE)

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AND:

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SHIVAKUMAR S/O. MUDDAVVA AGE: 37 YEARS, OCC: BUSINESS, R/O:AMBEDKAR NAGAR, KUSHTAGI, TAL: KUSHTAGI, DIST: KOPPAL.

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THE BRANCH MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LTD, OPP:BUS-STAND, BAGALKOT 587101, (POLICY ISSUED BY RIICO INDUSTRIAL AREA SITAPUR, JAIPUR, RAJASTHAN) (POLICY NO 10003/31/11/296297 VALIDITY FROM 15.11.2010 TO 14.11.2013) POLICE ISSUED BY BAGALKOT BRANCH.

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…RESPONDENTS

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(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR R2, NOTICE TO R1 DISPENSED WITH)

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, VIJAYKUMAR A.PATIL, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Both the appeals are filed by the injured/claimants challenging judgment and award dated 03.04.2018 passed by the Member, MACT-II, Bagalkote (hereinafter referred to as ‘the Tribunal’) in MVC Nos.200/2012 and MVC No.201/2012 seeking for enhancement of the

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compensation.

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Brief facts giving rise to filing of these appeals are that the appellants filed claim petitions under Section 166 of Motor Vehicle Act claiming compensation for the injuries sustained in the accident which occurred on 29.12.2010 at about 7.45 p.m. It is averred that the claimant in MVC No.200/2012 was proceeding along with

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his brother i.e., the claimant in MVC No.201/2012 on a motorcycle bearing No.KA-36/J-9326 from Sindhanur towards Myageri village, Bagalkote Taluk. When they reached near Megur village on Mudenur Dotihal Road, the driver of Tempo Trax bearing No.KA-37/6331 came from the opposite direction in high speed, in a rash and negligent manner, dashed to the motorcycle of the claimants and caused the accident. Both the claimants fell down and sustained grievous injuries, they were shifted to District Government Hospital, Kushtagi and thereafter shifted to KLE Hospital, Belagavi wherein they were inpatient for about 6 months and spent huge amount for the treatment. It is also averred that prior to the accident the claimants were hale and healthy, doing goundi work and were earning Rs.500/- per day. It is further averred that both the claimants are the only earning members of their family and due to the injuries sustained in the accident, they have suffered disability and were not in a position to do goundi work. It is further averred that due to rash and negligent driving of the driver of the offending

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vehicle, the accident had occurred and respondents No.1 and 2 are jointly and severally liable to pay the compensation.

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The respondents No.1 and 2 filed written statement denying the averments made in the claim petitions. Respondent No.1 in his written statement denied that, the driver of the offending vehicle was driving the vehicle in a negligent manner. It was averred that the rider of the motorcycle was driving in rash and negligent manner and caused the accident. Respondent No.2 who is the insurer of the offending vehicle, contended that the accident had occurred due to contributory negligence of the rider of the motorcycle as well as the driver of the Tempo Trax. It is also contended that the rider of the motorcycle was not possessing effective and valid driving licence at the time of accident. It further denied the averment made in the claim petition regarding treatment taken by both the claimants in Kustagi Hospital as well as in KLE Hospital, denied the income, avocation and

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disability. Hence, they prayed for dismissal of both the petitions.

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The Tribunal framed the common issues and

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recorded the evidence of the parties. The claimant in MVC No.200/2012 examined himself as PW-1, the claimant in MVC No.201/2012 examined himself as PW-2, a witness was examined as PW-3 and three doctors were examined as PW-4, PW-5 and PW-6 and got marked Exs.P-1 to P51 and the respondent No.2 got examined its Law Officer as RW-1 and marked Exs.R-1 to R-3. The tribunal on appreciation of the material evidence available on record has awarded a sum of Rs.6,83,600/- to the claimant in MVC No.200/2012 and a sum of Rs.3,57,960/- to the claimant in MVC No.201/2012 along with 6% interest. Being aggrieved by the same, both the claimants have filed these appeals seeking enhancement of compensation.

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Sri S.C.Hiremath, learned counsel for the

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claimants in MVC No.200/2012 submits that, the tribunal has committed an error in assessing the disability of the

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appellant-injured at 15% contrary to the evidence on record. It is submitted that, the appellant-claimant has suffered 40% disability of right lower limb and 10% disability to upper lower limb. It is submitted that, the appellant-claimant was working as a goundi and was earning more than Rs.15,000/- per month, however, the tribunal has assessed his income notionally at Rs.4,000/which is required to be modified. It is submitted that, the appellant was inpatient and taken treatment on different occasions and he was inpatient for a period of 366 days, i.e. more than one year, hence, award of compensation

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under the head of pain and suffering is on lower side, similarly, the award of compensation under the heads of conveyance charges, towards loss of earning during laid up period and towards the loss of amenities are on lower side, which are required to be enhanced. It is also submitted that, similarly in MVC No.201/2012 the tribunal has committed an error in assessing the disability of 14% contrary to the disability certificate on record and the evidence of the Doctor. It is submitted that, the tribunal

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has committed a grave error in awarding meager compensation of Rs.40,000/- towards pain and suffering, as the appellant was inpatient for a period of three months and suffered grievous injuries. It is submitted that, the award of compensation under the head of conveyance charges, under the head of loss of earning during laid up period, and towards the amenities is on lower side, which is required to be enhanced.

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Per contra, Sri Nagaraj C. Kolloori, learned counsel for respondent No.2 supports the impugned Judgment and award and submits that, the Doctors who have been examined before the tribunal are not the treated Doctors and they have assessed the disability of both the claimants based on the information made available by the claimants. Hence, disability assessed in both the cases is proper and does not require any modification. It is submitted that, award of compensation under the other heads are also inconsonance with the evidence on record and the appellants are not entitled for

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enhancement of the compensation. It is further submitted that, insofar as income of the appellants, they have not produced any evidence to substantiate their claim of income and in the absence of any evidence, the tribunal has justified in assessing the income of the appellantinjured at Rs.4,000/- which does not call for any interference in these appeals. He seeks to dismiss both the appeals.

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Having heard the learned counsel for the

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parties, perused the memorandum of appeals and the tribunal records. The point that arises for consideration in these appeals is:

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Whether the appellants-claimants are entitled

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for higher compensation?

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The answer to the above point is in the

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affirmative for the following reasons:

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(a) The parties to the proceeding does not dispute that, both the appellants were proceeding on the motorcycle and the offending vehicle has dashed their

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motorcycle resulted in causing of grievous injuries. It is also not in dispute that, both the appellants have suffered different injuries and taken treatment. To substantiate the claim petition, the appellants themselves have entered the witness box and also examined the Doctors to establish the factum of disability, injury. Both the appellants were doing goundi work. The tribunal has notionally assessed the income of the injured at Rs.4,000/- per month. It is not in dispute that, the appellants have failed to produce any evidence before the tribunal to substantiate the income. Normally this Court and the Lok Adalaths while assessing the notional income in the road accident cases, places its reliance on the chart prepared by the Karnataka State Legal Service Authority and assess the income. In the instance case, the accident is of the year 2010 and as per the aforesaid chart, this Court is inclined to assess the notional income of both the appellants at Rs.5,500/- as against Rs.4,000/-.

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(b) Insofar as assessing the disability, the tribunal

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in MVC No.200/2012 has assessed the disability at 15%.

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This Court on close scrutiny of oral testimony of P.W.4 to P.W.6 and Ex.P.6, Ex.P.43, Ex.P.12 to Ex.P.19 and Ex.P.29 is of the opinion that, the appellant has suffered fracture of right femur and suffered a fractured wound on right knee joint and right thigh femur. The Doctors have assessed disability at 40% to the right lower limb and 10% to the upper lower limb. Taking note of the evidence on record, this Court is of the considered view that the tribunal has committed an error in assessing the disability

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of the injured appellant. This Court is of the opinion that, aforesaid evidence of the expert is considered, it would be appropriate to assess the disability 18% as against 15%. In MVC No.201/2012 the tribunal has assessed disability at 14%. On close scrutiny of the oral testimony of the Doctors and the medical records at Ex.P.23, P.38 to P.42 and Ex.P.25 to 27 and disability certificate at Ex.P.44 indicates that, the appellant has suffered permanent physical disability to the extent of 40% as per evidence on

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record, the Doctors who have reasoned for assessing the disability and taking note of Ex.P.44 this Court is of the considered opinion that the appellant has suffered permanent physical disability to the extent of 16% as against the 14% assessed by the tribunal.

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(c) It is not in dispute that, the appellant in MVC No.200/2012 was inpatient for a period of more than a year and suffered various fractures and injuries. Similarly in MVC No.201/2012 the appellant was inpatient for a period of more than three months and suffered fractures and injuries. Taking note of the medical evidence on record this Court is of the considered opinion that, the appellant in MVC No.200/2012 is entitled to additional Rs.40,000/- under the head of pain and suffering and in MVC No.201/2012 the appellant is entitled for additional sum of Rs.20,000/- under the head of pain and suffering.

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(d) The tribunal has awarded Rs.20,000/- towards the conveyance charges to both the appellants. Taking into account, the duration of treatment and place of

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treatment this Court is of the considered view that, the both the appellants are entitle for additional Rs.10,000/under the head of conveyance charges.

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(e) The tribunal has awarded compensation under

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the head of loss of earning during the laid up period, food diet and nourishment and medical expenses which are unaltered.

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(f) The tribunal has awarded Rs.20,000/- to both the appellants under the head of loss of amenities. This Court taking into account the nature of injuries suffered by both the appellants, duration of treatment and the pain and suffering, is of the considered view that, both the appellants are entitle for additional Rs.20,000/- under the head of loss of amenities.

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(g) The appellants are entitle interest at the rate of 6% on the enhanced compensation.

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Thus, the appellant/claimant in MVC

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No.200/2012 would be entitled to modified compensation

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as under:

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Sl.No.	Particulars	Amount
1.	Towards pain and suffering	Rs.1,40,000/-
2.	Towards Medical expenses	Rs.2,70,000/-
3.	Towards food, diet and nourishment	Rs.60,000/-
4.	Towards conveyance charges	Rs.30,000/-
5.	Towards loss of earning during laid up period	Rs.84,000/-
6.	Towards loss of future earning capacity (Rs.5,500/- X 12 X 18 X 18/100=Rs.	Rs.2,13,840/-
7.	Towards loss of amenities	Rs.40,000/-
	Total	Rs.8,37,840/-
	Compensation awarded by the Tribunal	Rs.6,83,600/-
	Enhanced compensation	Rs.1,54,240/-

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Thus, the claimants would be entitled to total

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compensation of Rs.8,37,840/- as against Rs.6,83,600/awarded by the Tribunal.

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The appellant/claimant in MVC No.201/2012

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would be entitled to modified compensation as under:

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Sl.No.	Particulars	Amount
1.	Towards pain and suffering	Rs.60,000/-
2.	Towards Medical expenses	Rs.1,00,000/-
3.	Towards food, diet and nourishment	Rs.25,000/-
4.	Towards conveyance charges	Rs.30,000/-
5.	Towards loss of earning during laid up period	Rs.32,000/-

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Towards loss of future earning Rs.1,90,080/-
capacity (Rs.5,500/- X 12 X 18 X
16/100)
7. Towards loss of amenities Rs.40,000/-
Total Rs.4,77,080/-
Compensation awarded Rs.3,57,960/-
by the Tribunal
Enhanced compensation Rs.1,19,120/-

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Thus, the claimant would be entitled to total compensation of Rs.4,77,080/- as against Rs.3,57,960/awarded by the Tribunal.

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Hence, we pass the following order.

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ORDER

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a. Both appeals are allowed in part.

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b. The common judgment and award dated 03.04.2018 passed in MVC No.200/2012 and MVC No.201/2012 by the MACT - II, Bagalkot, is modified to the extent that the claimants in MVC No.200/2012 would be entitled to total compensation of Rs.8,37,840/- as against Rs.6,83,600/- and the claimants in MVC No.201/2012 would be entitled to total compensation of Rs.4,77,080/as against Rs.3,57,960/awarded by the Tribunal.

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c. The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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d. Respondent/Insurance company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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e. Registry to transmit the records to the Tribunal forthwith.

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f. Draw modified award accordingly.

Sd/JUDGE

Sd/JUDGE

Svh/-

List No.: 1 Sl No.: 18

Rafiq @ Mahamad Rafiq S/O Vallisab v. Shivakumar S/O Muddavva

Case brief

What is this about?

What did the court decide?

Rafiq @ Mahamad Rafiq S/O Vallisab v. Shivakumar S/O Muddavva

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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