Allowed

Mrs.Gajal Amin Tamboli, v. Shri.Mohsin Bashirahmed

Karnataka HC3 Nov 2023MFA/103532/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, enhancing compensation from Rs.1,38,620 to Rs.2,04,620. The court added amounts for pain, suffering, future amenities, and loss of income during recovery, while maintaining other awarded heads.

What did the court decide?

Total compensation awarded to the claimant is Rs.2,04,620/- against the Tribunal's award of Rs.1,38,620/- with 6% interest on the enhanced amount.

Mrs.Gajal Amin Tamboli, Vs Shri.Mohsin Bashirahmed — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 3^RD DAY OF NOVEMBER, 2023 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 MISCELLANEOUS FIRST APPEAL NO. 103532 OF 2016 (MV-I)

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BETWEEN:

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MRS. GAJAL AMIN TAMBOLI, AGE: 26 YEARS, OCC: MEDICAL PRACTITIONER, NOW NIL, R/O: GHATAPRABHA, TQ: GOKAK, DIST: BELAGAVI-591218.

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…APPELLANT

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(BY SRI. HARISH S. MAIGUR, ADVOCATE)

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AND:

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SHRI. MOHSIN BASHIRAHMED @ BASHIR MOMIN, AGE: MAJOR, OCC: SERVICE, R/O: C/O LECTURER IN SHELYA DEPARTMENT, S.G.V. AYURVEDIC MEDICAL COLLEGE, BAILHONGAL-591102, DIST: BELAGAVI.

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VINAYAKA B V

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Digitally signed by VINAYAKA B V

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Date: 2023.11.08 10:58:47 +0530

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., THROUGH ITS DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI-590002.

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(BY SMT. SHARMILA M. PATIL, ADVOCATE FOR R2, NOTICE TO R1 DISPENSED WITH)

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…RESPONDENTS

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THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 29.07.2016 PASSED IN MVC NO.2007/2014 ON THE FILE OF THE VIII-ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, VIJAYKUMAR A.PATIL J., DELIVERED THE FOLLOWING:

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2 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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JUDGMENT

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This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 by the appellant/injured seeking enhancement of compensation being aggrieved by the judgment and award dated 29.07.2016 passed in MVC No.2007/2014 on the file of learned VIII Addl. District and Sessions Judge, Bealgavi (for short, ‘Tribunal’).

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Brief facts giving rise to filing of this appeal are that the claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental injuries sustained by her in a road traffic accident that occurred on 2.6.2014 at 3.30 p.m., near Yaraganavi village, Yaragatti-Gokak Road, due to rash and negligent driving of Maruti Swift Car bearing Regn.No.MH-13/9382. As a result of which, the appellant/claimant sustained grievous injuries, suffered permanent total physical disability and lost her earning capacity. It is averred that the appellant/injured was hale and healthy, aged about 24 years and she was a BAMS doctor by profession, earning Rs.25,000/- per month.

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3 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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The respondent No.1/owner of the offending vehicle did not appear before the Tribunal. Respondent No.2/Insurance Company filed written statement contending that the averments made in the claim petition are all false and baseless, it has denied the occupation, income of the claimant/injured and also amount spent towards medical expenses. It was averred that the driver of the offending car was not at all responsible for the alleged accident. Therefore, prayed for dismissal of the claim petition.

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The Tribunal has recorded the evidence of the parties. The appellant-claimant has examined herself as P.W.1, examined Dr. S.R. Angadi as P.W.3 and got marked Exhibits on her behalf. The respondents have not adduced any oral evidence nor marked any documents on their behalf. The Tribunal on appreciation of the material on record, awarded a total compensation of Rs.1,38,620/- with 9% interest per annum from the date of petition till the date of realization. Aggrieved by the same, the claimant is before this Court seeking enhancement of compensation.

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4 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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Learned counsel Sri. Harish S Maigur appearing for the appellant-claimant submits that the Tribunal has committed an error in not considering the disability of the appellant/injured assessed by the doctor PW3, who has opined that the appellant has suffered permanent physical disability to an extent of 40% to the left upper limb. Hence, the appellant is entitled compensation under the head loss of future income. It is submitted that the Tribunal has awarded meager compensation on the other heads, he seeks to allow the appeal by enhancing the compensation.

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Per contra, Smt. Sharmila M Patil, learned counsel for respondent No.2-Insurance Company supporting the impugned judgment and award submits that there is no evidence on record to establish the fact that the appellant has lost her earning capacity after the accident. It is submitted that the doctor PW3 is not a treated doctor, who has assessed the disability of the appellant. It is further submitted that award of compensation by the Tribunal on other heads are on the higher side. He seeks to dismiss the appeal.

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5 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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We have heard the learned counsel for the

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appellant as well as learned counsel for the respondent No.2 and perused the appeal papers along with original records.

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Having heard the learned counsel for the parties

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and on perusal of the material available on record, the only point that would arise for our consideration in the present appeal is:

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“Whether the appellant/claimant is entitled for enhanced compensation in the facts and circumstances of the case?”

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The answer to the above point would be in the affirmative for the following reasons:

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(a) The parties to the proceeding do not dispute the accident and the liability of the Insurance Company. It is also not in dispute that, the appellant was aged about 24 years as on the date of the accident and she was BAMS graduate and suffered injuries in the accident in question. To substantiate the injuries and disability, the appellant examined doctor PW3, who is not a treated doctor and he has deposed before the Court on 15.07.2016, however, the

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6 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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accident had occurred on 2.6.2014 i.e. after two years. When things stood thus, we do not find any error in the finding recorded by the Tribunal in not awarding any compensation under the head loss of future income. Moreover, the appellant/claimant has not placed on record any evidence to substantiate that the claimant has lost or reduced the income after the accident in question. In the absence of any such evidence, we do not find any reason to award compensation under the head loss of future income. (b) The Tribunal has awarded compensation of Rs.40,000/- towards pain and suffering. This Court on a close scrutiny of the evidence of PW3-doctor, disability certificate and other medical records, it is evident that the appellant has suffered grievous injuries, undergone surgery and she was inpatient for a period of six days. Therefore, she has taken rest to recover from the injuries, hence, it would be just and appropriate to award additional sum of Rs.10,000/- under the aforesaid head.

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7 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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Rs.20,000/- towards ugliness of left arm. The appellant is a doctor by profession and aged about 24 years. The photographs on record clearly indicate that there is permanent scar on the left arm and she has undergone surgery and screws are inserted. Taking into account the evidence on record, more particularly, oral testimony of PW3-doctor, who has deposed that there is mal-union of bone, it would be just and appropriate to award additional sum of Rs.25,000/- under the head loss of future amenities and discomfort (in all, sum of Rs.65,000/-).

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(d) The tribunal has awarded Rs.5,000/- towards diet, conveyance and attendant charges, which is on the lower side. It is not in dispute that the appellant has undergone surgery and was inpatient for a period of six days. Hence, it would be just and appropriate to award another sum of Rs.10,000/- under the aforesaid head.

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(e) The tribunal has committed an error in not awarding any compensation towards loss of income during the laid up period. The appellant was inpatient for six days and totally she could have taken three months to recover

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8 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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from the injuries. Therefore, it would be just and proper to award a sum of Rs.21,000/- (Rs.7,000 x 3 months) under the head loss of income during laid-up period. The compensation awarded by the Tribunal on the other heads are just and reasonable and same are unaltered.

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(f) The appellant is entitled for the following modified

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compensation with interest at the rate of 6%:

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1	Pain and suffering		Rs.50,000/-
2	Loss of future amenities discomfort	and	Rs.65,000/-
3	Towards diet, conveyance attendant charges	and	Rs.15,000/-
4	Medical expenses		Rs.53,620/-
5	Loss of income during laid up per	iod	Rs.21,000/-
	Total		Rs.2,04,620/-
	Compensation awarded by tribunal	the	Rs.1,38,620/-
	Enhanced compensation		Rs.66,000/-

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Thus, the claimant would be entitled to total compensation of Rs.2,04,620/- as against Rs.1,38,620/awarded by the Tribunal.

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Hence, we proceed to pass the following order:

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9 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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ORDER

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i. The appeal is allowed in part.

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ii. The judgment & award dated 29.07.2016 passed in MVC No.2007/2014 by Tribunal, is modified to an extent that the claimant would be entitled to total compensation of Rs.2,04,620/- as against Rs.1,38,620/awarded by Tribunal.

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iii. The enhanced compensation amount of Rs.66,000/- shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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iv. 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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10 - NC: 2023:KHC-D:12842-DB MFA No. 103532 of 2016

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v. On such deposit, the said amount shall be released in favour of the appellant on proper identification.

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

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vii. Draw modified award accordingly.

Sd/JUDGE

Sd/JUDGE

JTR

LIST NO.: 1 SL NO.: 24

Mrs.Gajal Amin Tamboli, v. Shri.Mohsin Bashirahmed

Case brief

What is this about?

What did the court decide?

Mrs.Gajal Amin Tamboli, v. Shri.Mohsin Bashirahmed

Case brief

What is this about?

What did the court decide?

What the court decided

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