Partly allowed

Mr Mohammad B v. Mr Abdul Faruq

Karnataka HC18 Jul 2023MFA/1050/2018

Case brief

AI extract

What is this about?

The High Court allowed this motor accident first appeal in part. The Court enhanced the compensation from Rs.5,00,200 to Rs.5,94,480 by increasing amounts for pain and suffering, loss of amenities, and loss of future income based on Karnataka State Legal Services Authority guidelines, directing insurance companies to deposit the difference with interest.

What did the court decide?

Compensation enhanced by Rs.94,480 with interest at 6% p.a.; total compensation fixed at Rs.5,94,480.

Mr Mohammad B Vs Mr Abdul Faruq — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 1050 OF 2018 (MV-I)

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BETWEEN:

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MR. MOHAMMAD B., S/O LATE IBRAHIM, AGED ABOUT 56 YEARS, R/AT BEDRADI HOUSE, KARNNURU POST, PUTTUR TALUK, MANGALORE, D.K - 575 001.

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…APPELLANT

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(BY SMT. KRITHIKA BHAT, ADVOCATE FOR SRI. KRISHNA MOORTHY D, ADVOCATE)

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AND:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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MR. ABDUL FARUQ, AGED ABOUT 29 YEARS, RES/AT MUTTIKALLU HOUSE, ALIYAR PADAVU, AMBLAMOGARU POST & VILLAGE, MANGALORE - 575 001.

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THE NEW INDIA INSURANCE CO. LTD., CENTURY BUILDING, GHS ROAD, MANGALURU - 575 001.

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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SMT. GRETTA CORNELIO, W/O. LEO CORNELIO, AGED ABOUT 42 YEARS, R/AT AKSHAYA HOUSE, KUKKUNJE VILLAGE, SANTHEKATTE, UDUPI TALUK AND DISTRICT - 576 101.

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THE UNITED INDIA INSURANCE CO. LTD., UDAYAVANI BUILDING, TILE FACTORY ROAD, UDUPI. DIV.OFFICE AT MANGALURU, RAMBHAVAN COMPLEX, KODIALBAIL, MANGALURU - 575 001.

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…RESPONDENTS

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(BY SMT. PADMA S. UTTUR, ADVOCATE FOR R2; SRI. HARISH GANAPATHY, ADVOCATE FOR R3; SRI. JANARDHAN REDDY, ADVOCATE FOR R4; R1 - SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.08.2016 PASSED IN MVC NO.121/2014 ON THE FILE OF MEMBER, MACT & II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

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THE COURT DELIVERED THE FOLLOWING:

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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JUDGMENT

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Heard learned counsel appearing for the appellant and respondents. Though the matter is listed for admission, the same is taken up for final disposal with the consent of both counsels.

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This appeal is directed against judgment and award in MVC.No.121/2014 dated 17.8.2016, passed by Learned II Additional Senior Civil Judge, Mangaluru D.K., whereby the appellant/petitioner was awarded a sum of Rs.5,00,200/- as compensation.

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The petitioner contended that on 18.10.2013 at about 2.00 p.m. when he was proceeding on a motor cycle bearing Reg.No.KL-14-G-1227 as rider near Kinnigoli, a pick van bearing Reg.No.KA-19-D-2330 came from side and hit against the motor cycle of the petitioner causing the accident. In fact, the petitioner was thrown out to the road and at the same time, another vehicle bearing No.KA-20-B-7570 came from Kinnigoli side in a rash and negligent manner and dashed to the motor cycle. In the accident, petitioner sustained grievous injuries and he was immediately admitted to Srinivasa

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4 - NC: 2023:KHC:24992 MFA No. 1050 of 2018

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Hospital and then to Tejaswini Hospital, Mangaluru. It is contended that the petitioner took treatment for 70 days initially and thereafter, he was also admitted to the hospital for further treatment and totally, he was in-patient for 108 days. Petitioner contended that he was working as labour contractor and he was earning 20,000/- per month but due to the accident injuries, he has suffered permanent disability and therefore just and reasonable compensation may be awarded to him.

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On issuance of notice, respondent Nos.1, 3 and 4 did not appear despite proper service of notice and therefore they were placed ex-parte.

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Respondent No.4 appeared through his counsel and filed objections statement to the petition. Later, respondent No.2 appeared through his counsel and filed objections to the petition.

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Respondent No.2 contended that the claim is highly exorbitant, unimaginary and baseless and that the accident was not due to the negligence on part of the lorry. Respondent Nos.1 and 2 are owner and insurer of motor cycle respectively, respondent Nos.3 and 4 are the owner and insurer of the lorry.

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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It was contended that the accident was due to

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negligence on the part of the Mahindra Pick up Van. It was contended that owner and insurer of the motor cycle was not arrayed as parties and therefore the petition is not maintainable, inter alia, the liability was also denied on the ground that there was violation of terms and conditions of the policy.

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Respondent No.4 also took up similar contentions and contended that negligence was on the part of the petitioner as well as the driver of the pick up van. He also denied the quantum of compensation and its liability and contended that the terms and conditions of the policy were violated.

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On the basis of above pleadings the Tribunal has framed appropriate issues and the petitioner was examined as PW1 and two witnesses were examined as PW2 and 3. Ex.P1 to 52 were marked. On behalf of the respondents, Ex.R1 and R2 were marked in evidence. After hearing on both the sides the Tribunal came to conclusion that there was negligence in equal proportions by the Mahindra pick up van as well as lorry driver and therefore fastened the liability to the extent of 50% on

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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each of them. Having found that the insurance policy was in force, the insurance companies were directed to pay the compensation. The Tribunal awarded compensation under different heads as below:

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Sl.No.	Heads	Amount in (Rs.)
1	Pain and Suffering	30,000-00
2	Medical Expenses	2,69,000-00
3	Attendant charges, food and extra nourishing & conveyance etc	53,200-00
4	Loss of future income due to disability	1,03,000-00
5	Loss of income during treatmentperiod	30,000-00
6	Future medical expenses	15,000-00
	Total	5,00,200-00

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Being aggrieved by the said judgment and award the petitioner is before this Court in this appeal contending that the quantum of compensation amount is low and meager and Tribunal has not considered the nature of injuries and disabilities suffered by him and also the Tribunal has erred in assessing the income of the petitioner.

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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On issuance of notice respondent Nos.2, 3 and 4 have appeared through their counsel and respondent No.1 did not appear in spite of service of notice.

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The learned counsel appearing for the appellant/claimant submits that the compensation awarded by the Tribunal is on the lower side and the notional income of the petitioner has to be considered at a higher rate. He also submits that the compensation awarded on the other heads are also on the lower side.

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Per contra learned counsel appearing for respondent Nos.2 and 4 contend that adequate compensation has been awarded by the Tribunal.

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The fact that there was an accident involving the petitioner and Mahindra pickup vehicle as well as the lorry is not in dispute. Both the Insurance Companies have not disputed the factum of accident. The Tribunal has considered the nature of accident and has arrived at a conclusion that the negligence has been equally contributed by both the vehicles. It has also noticed that Police after investigation, have filed the charge sheet against the drivers of both the vehicles.

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8 - NC: 2023:KHC:24992 MFA No. 1050 of 2018

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Therefore, when the said aspect is not challenged before this Court, it is not necessary for this Court to consider the same.

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Coming to the quantum of the compensation, the

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records reveal that the petitioner had sustained fracture of right tibia and it had resulted in disability of 40%. The petitioner had sustained crush injury over the right ankle and there was a shortening of right limb by 2 inches and cosmetic disfigurement of the right leg was found. PW.2-the Doctor who assessed the disability stated that the disability of the limb was 40% and Tribunal assessed the functional disability at 13%. The petitioner contended that he was a Labour Contractor and therefore, the disability is going to affect his functionality resulting in reduction of the income. However, no documentary proof was available in order to prove the income of the deceased. Therefore, the Tribunal adopted the notional income of Rs.6,000/- in assessing the compensation.

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The impugned judgment shows that though accident had taken place in the year 2013, notional income of the petitioner was taken at Rs.6,000/- per month. The guidelines issued by the Karnataka State Legal Services

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9 - NC: 2023:KHC:24992 MFA No. 1050 of 2018

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Authority for the purpose of settlement of the disputes prescribed a notional income of Rs.8,000/- for the year 2013. In umpteen number of decisions, this Court has held that the guidelines of Karnataka State Legal Services Authority are in general conformity with the wages fixed under the Minimum Wages Act. Therefore, the notional of the petitioner has to be considered at Rs.8,000/-.

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Finding of the Tribunal that there is a 13% disability cannot be disputed since functional disability had been considered by the Tribunal and therefore, the 'loss of future income' is calculated as Rs.8,000/- X 12 X 11 X 13% = Rs.1,37,280/-. As a consequence, 'loss of income during laid up period' is calculated as Rs.8,000/- X 5 = Rs.40,000/-.

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The compensation awarded by the Tribunal under the head of 'medical expenses', 'attendant charges, food and conveyance etc', 'future medical expenses' do not require any enhancement.

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The Tribunal has awarded a sum of Rs.30,000/under the head of 'pain and suffering' and considering the

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10 - NC: 2023:KHC:24992 MFA No. 1050 of 2018

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gravity of the injuries suffered by the petitioner, it is just and proper to award a sum of Rs.40,000/- under this head.

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20. The Tribunal has awarded any compensation under

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the head of 'loss of amenities in life'. The petitioner has to bear the brunt of injury for the rest of his life and therefore, a sum of Rs.40,000/- is awarded to the petitioner under this head.

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Thus, the petitioner is entitled for the modified

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compensation under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
pain and suffering	40,000/-
Medical expenses	2,69,000/-
Attendant charges, food and conveyance etc.	53,200/-
Loss of future income	1,37,280/-
loss of income during laid up period	40,000/-
Future medical expenses	15,000/-
Loss of amenities in life	40,000/-
TOTAL	5,94,480/-
Less awarded by Tribunal	5,00,200/-
Enhancement	94,280/-

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Thus, the petitioner is entitled for enhanced

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compensation of Rs.94,480/- with interest and therefore, the appeal deserves to be allowed in part. Hence, the following:

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11 -

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NC: 2023:KHC:24992 MFA No. 1050 of 2018

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed by the

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Tribunal is modified by awarding a sum of Rs.94,480/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit.

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(iii) The respondent Nos.2 and 4 - Insurance companies

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are directed to deposit the compensation amount within a period of six weeks from the date of this order.

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(iv) Rest of the order of the Tribunal regarding Fixed

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Deposit and etc. remain unaltered.

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Sd/JUDGE

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PK/NR List No.: 1 Sl No.: 78 CT: THK

Mr Mohammad B v. Mr Abdul Faruq

Case brief

What is this about?

What did the court decide?

Mr Mohammad B v. Mr Abdul Faruq

Case brief

What is this about?

What did the court decide?

What the court decided

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