Partly allowed

Shamsuddin P.P. S/O Mohammad v. Allabax S/O Gulmohammad Agawan

Karnataka HC23 Oct 2024MFA/102095/2019

Case brief

AI extract

What is this about?

In this first appellate appeal under the Motor Vehicles Act, the High Court enhanced the total compensation awarded to a pedestrian injured in a road accident. The court recalculated loss of future earnings based on notional income and reassessed whole body disability from 8% to 12%, increasing the total award to Rs. 4,23,528/-.

What did the court decide?

A total compensation of Rs. 4,23,528/- ordered, including enhanced amounts for loss of future earnings, pain and sufferings, and incidental expenses; interest at 6% p.a. directed.

Shamsuddin P.P. S/O Mohammad Vs Allabax S/O… — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF OCTOBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

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AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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MISCELLANEOUS FIRST APPEAL NO.102095 OF 2019 (MV-I)

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BETWEEN:

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SHAMSUDDIN P.P. S/O. MOHAMMAD AGE: 52 YEARS, OCC: BUSINESS, R/O: SRI. RAM DHABA, SUTAGATTI CROSS, A/P: SUTAGATTI, TQ AND DIST: BELAGAVI-591248.

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…APPELLANT

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

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AND:

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Digitally signed by MANJANNA E Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2024.10.25 14:31:38 +0530

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ALLABAX S/O. GULMOHAMMAD AGAWAN (SINCE DECEASED BY HIS LR),

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MOHD. SHAFI S/O. ALLABAKSH AGAWAN AGE: MAJOR, OCC: BUISNESS, R/O: H.NO.159/2, GATE NO.2, A/P: SIRSI, TQ: UMRED, DIST: NAGPUR, MAHARASHTRA STATE-441214.

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ARUN M.C. S/O. CHANDRASEKARAN M., AGE: MAJOR, OCC: BUSINESS, R/O: 26 K, KALAIVANI NAGAR, MOHANUR ROAD, NAMAKKAL-637001, TAMIL NADU STATE.

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2 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE AT CLUB ROAD, BELAGAVI.

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THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE AT RAMDEV GALLI, BELAGAVI.

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…RESPONDENTS

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(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R3; SRI. M.A.DESHPANDE, ADVOCATE FOR R4; NOTICE TO R1 AND R2 ARE DISPENSED WITH)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 17.10.2018 PASSED IN MVC NO.576/2016 ON THE FILE OF THE IX ADDITONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD

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AND

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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3 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD)

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This appeal under Section 173(1) of the Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant challenging the judgment and award dated 17.10.2018 passed by the IX Addl. District and Sessions Judge and Addl. MACT, Belagavi in M.V.C. No.576/2016.

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Facts giving rise to the filing of the appeal briefly stated are that on 24.09.2015 at about 05:00 p.m., goods carrier vehicle bearing registration No.TN-28/AF-2310 being driven by its driver rashly and negligently without giving space to the car to over take, stopped the said vehicle suddenly and when the inmates of the car stopped the said vehicle and started quarrelling with the said driver, observing the same the claimant went there for enquiry, at that time, another truck bearing registration No.MH-40/Y-9563 being driven by its driver rashly and negligently dashed the goods carrier vehicle bearing

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4 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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registration No.TN-28/AF-2310 from behind. On account of which the claimant who was standing by the side of the road in front of the goods carrier vehicle has sustained injuries. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the offending vehicle by its driver.

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Upon service of notice, the respondent Nos.3 and 4 – insurance companies appeared through their counsel and filed written statement denying the averments made in the claim petition. The respondent Nos.1(a) and 2 despite service of notice, did not appear before the Tribunal and were placed ex-parte.

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5 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The Tribunal, by impugned judgment and award has partly allowed the claim petition and held that the claimant is entitled to a compensation of Rs.3,06,128/along with interest at the rate of 6% p.a. and directed the respondent Nos.3 and 4 to deposit the compensation amount along with interest. Being aggrieved, the present appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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a) Firstly, due to the accident, the claimant has suffered grievous injuries and he was inpatient for a period of 18 days. He has examined the Doctor as PW3. In his evidence, he has deposed that the claimant has suffered disability at 35% to the right lower limb. The Tribunal undervalued the claimant's whole-body disability at 8%, contradicting the evidence of the doctor that the claimant suffered 35% disability to particular limb.

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6 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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b) Secondly, he has contended that at the time of the accident, the claimant was earning Rs.25,000/- per month. However, the Tribunal has erred in taking the income as merely as Rs.7,000/- per month.

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c) Lastly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for

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a period of 18 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the overall compensation awarded by the Tribunal is on the lower side. With the above contentions, the learned counsel sought to allow the appeal.

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Per contra , the learned counsel for the respondent Nos.3 and 4 – Insurance Companies have raised the following counter-contentions:

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a) Firstly that even though the Doctor has deposed that

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the claimant has suffered 35% disability to right lower limb, the Tribunal after considering the evidence of PW3

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7 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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and considering the medical records and injury suffered by

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the claimant has rightly assessed the whole body disability at 8%.

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b) Secondly, the claimant has claimed that he was

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earning Rs.25,000/- per month, but he has not produced

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any document to establish the same. Therefore, the

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Tribunal has rightly assessed notional income of the claimant as Rs.7,000/- per month.

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c) Lastly, considering the evidence of the Doctor and injury suffered by the claimant and considering the medical records, the compensation awarded by the

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Tribunal for pain and sufferings, loss of amenities and other incidental expenses is just and reasonable. Hence, sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident that occurred on

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8 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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24.09.2015 due to rash and negligent driving of the offending vehicle by its driver bearing registration No.MH40/Y-9563. Due to that accident, the claimant has suffered crush injury to right foot, dislocated first metatarso phalyngeal joint, crush / degloving injury to right toe.

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The claimant claims that he was earning Rs.25,000/per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2015, notional income shall be taken at Rs.8,000/- per month.

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The claimant has examined the Doctor as PW3. In his evidence, he has deposed that the claimant has suffered physical disability to an extent of 35% in respect of right lower limb. Taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, we are of the opinion that the whole body disability has to be

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9 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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assessed at 12%. The claimant was aged about 49 years at the time of the accident and multiplier applicable to that age group is ‘13’. Accordingly, the loss of future earning due to disability has been reassessed as follows:

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Rs.8,000 X 12 X 13 X 12% = Rs.1,49,760/-

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Due the accident, the claimant has suffered the above injuries and he was under rest and treatment for a period of 18 days. He has suffered lot of pain during the treatment and he has to suffer disability and unhappiness throughout his life. Considering the evidence of the Doctor – PW3 and the medical records, we are inclined to enhance the compensation awarded by the Tribunal under the heads ‘pain and sufferings’ from Rs.40,000/- to Rs.50,000/- , ‘towards food, transport and attendant charges and loss of income during the treatment’ from Rs.20,000/- to Rs.40,000/- and ‘loss of amenities’ from Rs.5,000/- to Rs.30,000/- . The compensation awarded by the Tribunal under other heads is just and reasonable.

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10 - NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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13. Thus, the claimant is entitled to the following

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compensation:

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Loss of future earnings	Rs.1,49,760/-
Pain and sufferings	Rs.50,000/-
Towards food, transport and attendant charges including loss of income during treatment	Rs.40,000/-
Loss of amenities	Rs.30,000/-
Medical expenses	Rs.1,53,768/-
Total	Rs.4,23,528/-

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In the result, the following order is passed:

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ORDER

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a) The appeal is allowed in part .

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b) The judgment of the Claims Tribunal is modified.

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c) The claimant is entitled to a total compensation of Rs.4,23,528/-.

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d) The respondent Nos.3 and 4 – Insurance Companies are directed to deposit 50% each of the compensation amount i.e., Rs.4,23,528/- along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a

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11 -

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NC: 2024:KHC-D:15334-DB MFA No. 102095 of 2019

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period of six weeks from the date of receipt of copy

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of this judgment.

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Sd/-

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(H.T.NARENDRA PRASAD) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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RSH / Ct:VH List No.: 1 Sl No.: 9

Shamsuddin P.P. S/O Mohammad v. Allabax S/O Gulmohammad Agawan

Case brief

What is this about?

What did the court decide?

Shamsuddin P.P. S/O Mohammad v. Allabax S/O Gulmohammad Agawan

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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Case details

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