Partly allowed

Vijay S/O Yallappa Gomanache v. Dastagir S/Oo Gous @ Goussabeh Pathan

Karnataka HC3 Nov 2023MFA/104587/2019

Case brief

AI extract

What is this about?

This High Court miscellaneous first appeal modified the Tribunal's award of compensation in a motor vehicle accident case. The Court increased the disability percentage from 15% to 17%, adjusted the notional income to Rs. 10,250/, and enhanced various heads of compensation, resulting in a total award of Rs. 7,86,468/-.

What did the court decide?

Total compensation enhanced to Rs. 7,86,468/- with 6% interest; retired appeal allowed in part.

Vijay S/O Yallappa Gomanache Vs Dastagir S/Oo Gous @… — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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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. 104587 OF 2019 (MV-I)

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BETWEEN:

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VIJAY S/O. YALLAPPA GOMANACHE, AGE: 36 YEARS, OCC: MASON AND CENTERING WORK (NOW NIL), R/O: HONAGA VILLAGE, TQ AND DIST: BELAGAVI-591156.

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APPELLANT

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(BY SRI. YASH NADAKARNI, FOR SRI. VITTHAL S. TELI, ADVOCATES)

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AND:

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DASTAGIR S/O. GOUS @ GOUSSABEH PATHAN, AGE: 51 YEARS, OCC: BUSINESS, R/O: A/P ULLAGADDI, KHANAPUR, TQ: HUKKERI, 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 10:58:56 +0530

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THE DIVISIONAL MANAGER, UNTIED INDIA INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE NO. 1568, SITA SMRUTHI, MARUTI GALLI, BELAGAVI.

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RESPONDENTS

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(BY SRI. M. K. SOUDAGAR, ADVOCATE FOR R2, NOTICE TO R1 IS SERVED)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED IN MVC NO.683/2018 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V, BELAGAVI & ETC.

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

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2 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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JUDGMENT

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Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.

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This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 by the appellant/claimant seeking enhancement of compensation awarded under judgment and award dated 08.01.2019 passed in MVC No. 683/2018 on the file of learned IV Addl. District Judge & Sessions Judge and MACT-V, Belagavi (for short, ‘Tribunal’).

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Brief facts raising to filing of this appeal are that on 14.06.2017 at about 11.30 A.M, when the claimantinjured along with others was traveling as a passenger in a passenger maxi cab bearing registration No.KA-22-4399 on Sankeshwar-Belagavi NH-4 road, when they reached near Bennali village, the driver of the said maxi cab drove the same with high speed in a rash and negligent manner and dashed to one Mahindra Bolero vehicle to its rear side and caused the accident. As a result of which, he sustained head and spinal injuries. He was taken to Vijaya Ortho and

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3 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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Trauma Center, Belagavi and then shifted to KLE Hospital, Belagavi, later he was shifted to WIINS Hospital, Kolhapur. It is further averred that, prior to the accident, he was hale and healthy, was working as a mason and centering labour and earning Rs.10,000/- per month. Due to the accident he suffered financially, physically and mentally and sought for compensation.

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The respondent No.1/owner of the maxi cab is placed exparte.

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Respondent No.2/Insurance Company filed objections denying the petition averments made in the claim petition, it has denied the occupation and income of the injured. It was averred that due to negligence of the driver of the Bolero vehicle who had no valid driving licence, accident had occurred. Therefore, prayed for dismissal of the claim petition.

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The Tribunal has framed the issue and recorded the evidence of the injured and the Doctor as PW.1 and PW.2 respectively and got marked Exs.P.1 to Ex.P.14. The

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4 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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respondent No.2 got marked copy of the Insurance Policy as Ex.R1. The Tribunal on appreciation of the entire material on record, awarded a total compensation of Rs.6,63,818/- with 6% 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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Learned counsel Sri. Yash Nadakarni, appearing for the appellant-claimant submits that the Tribunal has committed an error in assessing monthly income of the injured at Rs.8,000/- per month, inasmuch as the injured was a mason and earning a sum of Rs.10,000/- per month. It is submitted that the Tribunal has committed an error in assessing physical disability at 15% as against 30% assessed by the Doctor. He further submits that the award of compensation by the Tribunal on other heads is also on lower side, he seeks to allow the appeal by enhancing the compensation.

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Per contra, Sri. M.K. Soudagar, learned counsel

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for the respondent No.2-Insurance Company vehemently contends that the Tribunal has rightly assessed monthly

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income of the injured at Rs.8,000/- per month, since the claimant has failed to substantiate his actual income. It is further submitted that the Tribunal has awarded just and reasonable compensation on various heads, which do not warrant interference at the hands of this Court. Hence, he seeks to dismiss the appeal.

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We have heard the learned counsel for the appellant as well as learned counsel for the respondent No.2 and perused the appeal papers.

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Having heard the learned counsel for the parties and on perusal of the material available on record, the following points would arise for our consideration in the present appeal:

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1. Whether the Tribunal is justified in assessing the income of the injured at Rs.8,000/- per month?

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1. Whether the appellant/injured would be entitled for higher compensation?

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Answer to the above points would be in the affirmative for the following reasons:

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6 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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The parties to the proceedings do not dispute the accident and the liability of the Insurance Company so also the injuries suffered by the appellant in the accident on 14.06.2017. The appellant/injured to substantiate the nature of injuries and disability has entered the witness box and also examined Dr. S.D. Patil as PW2 and got marked Exs.P.1 to P.14.

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On perusal of the medical records more particularly the wound certificate and disability certificate on record, it is evident that the Doctor has opined that the appellant-injured has suffered permanent disability of 30% to the whole body. On close scrutiny of the oral testimony of PW2 coupled with discharge summary and disability certificate at Exs.P.8 and P.9 and other medical records, it is evident that the appellant has initially taken treatment at Vijaya Ortho and Trauma Center, Belagavi, then shifted to KLE Hospital, Belagavi and then took treatment in WIINS Hospital, Kolhapur. He was an inpatient for a period of 21 days in all these hospitals. He has undergone operation for fracture of C1 to C3 and C1 to C3 wiring was done to

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7 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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stabilize reduction, bone graft put on decorticated C2-C3 surface to produce bony fusion, standard layer closer done. Thereafter he has taken follow up treatment in WIINS Hospital, Kolhapur.

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On considering the disability certificate, discharge summary and the oral testimony of PW2 and nature of injuries, this court is of the opinion that the tribunal has committed an error in assessing the disability at 15%. On taking note of the aforesaid evidence it will be appropriate to assess permanent disability of the appellant-injured at 17% as against 15% assessed by the Tribunal.

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The tribunal has assessed notional income of the appellant-injured at Rs.8,000/-. It is not in dispute that the appellant has not placed any evidence before the tribunal to substantiate his claim for the income and based on the pleadings the tribunal has assessed notional income of the injured at Rs.8,000/- per month. The claim of the appellant that he was working as mason, however no material was placed before the Tribunal and in the absence of any evidence on record this court normally places reliance on the

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8 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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chart prepared by the Karnataka State Legal Services Authority for assessing the notional income in the motor vehicle accident cases. No doubt the appellant has pleaded that he was earning Rs.10,000/- in the claim petition. However in the interest of justice and to maintain uniformity in assessing the income of the appellant-injured, this court is of the considered view that the appellant’s income shall be assessed at Rs.10,250/- per month placing the reliance on the chart referred to supra, as the accident is of the year 2017.

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The tribunal has awarded Rs.50,000/- under the head of pain and suffering. This court is of the considered view that the appellant has suffered fracture, undergone surgery and has taken treatment in three hospitals and was inpatient for 21 days. Taking into account the medical evidence on record it would be appropriate to grant additional sum of Rs.10,000/- under the head pain and suffering.

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Similarly, under the head of food and nourishment and traveling expenses, the appellant is entitled

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9 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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for additional sum of Rs.5,000/- on each heads, i.e., totally Rs.10,000/-, as the appellant was required to travel from one place to another place and required to take rest after discharge from the hospital for a considerable duration.

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The tribunal has awarded Rs.50,000/- under the head loss of earning during laid up period. The appellant has not placed any evidence to substantiate the said claim. However, taking into account nature of injuries and treatment taken by the appellant, the appellant ought to have taken at least six months rest from the date of accident. By taking note of the same, it would be appropriate to award additional sum of Rs.5,000/- towards loss of earning during laid up period.

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Insofar as compensation awarded by the Tribunal on the other heads is concerned, the same is just and proper and is unaltered.

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Thus, the appellant/claimant is entitled for compensation under the head loss of dependency as under: Rs.10,250 x 12 X 15 x 17/100 = Rs.3,13,650/-

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10 - NC: 2023:KHC-D:12818-DB MFA No. 104587 of 2019

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The appellants are entitled for the following

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modified compensation with interest at the rate of 6%:

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1	Loss of future income due to permanent disability	3,13,650.00
2	Pain and suffering	60,000.00
3	Medical expenses	2,67,818.00
4	Food and nourishment	15,000.00
5.	Traveling expenses	15,000.00
6.	Attendant charges	10,000.00
7.	Loss of earning during laid up period	55,000.00
8.	Loss of amenities in life	50,000.00
	Total	7,86,468.00
	Award of the tribunal	6,63,818.00
	Enhancement	1,22,650.00

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Thus, the claimant would be entitled to total

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compensation of Rs.7,86,468/- as against Rs.6,63,818/awarded by the Tribunal.

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Hence, we proceed to pass the following order: ORDER

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i. The appeal is allowed in part.

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ii. The judgment and award dated 08.01.2019 passed in MVC No.683/2018 by the Tribunal, is modified to an extent that the claimant would be entitled to total compensation of Rs.7,86,468/- as against Rs.6,63,818/- awarded by the Tribunal.

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iii. The enhanced compensation amount of Rs.1,22,650/- 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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v. The apportionment & disbursement of enhanced compensation shall be made in terms of the award of the Tribunal.

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vi. Draw modified award accordingly.

Sd/JUDGE

Sd/JUDGE

bvv

LIST NO.: 1 SL NO.: 3

Vijay S/O Yallappa Gomanache v. Dastagir S/Oo Gous @ Goussabeh Pathan

Case brief

What is this about?

What did the court decide?

Vijay S/O Yallappa Gomanache v. Dastagir S/Oo Gous @ Goussabeh Pathan

Case brief

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What the court decided

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