Disposed

Sri Shivaray S/O Bhimappa Nyamagoud v. Sri Salim S/O Shabbir Alagundi

Karnataka HC7 Aug 2024MFA/103222/2022

Case brief

AI extract

What is this about?

Claimant injured in a motorcycle-car collision sought enhancement of compensation while the insurer challenged the award as excessive. The High Court raised functional disability to 20%, enhanced compensation under several heads, and awarded an additional Rs.3,11,000 with interest at 6%.

What did the court decide?

Award modified; claimant granted enhanced compensation of Rs.3,11,000 with 6% interest (excluding future medical expenses); entire enhanced amount released to claimant; deposit transmitted to Tribunal

Sri Shivaray S/O Bhimappa Nyamagoud Vs Sri Salim S/O Shabbir… — Insurance | Karnataka HC (2024)

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NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF AUGUST 2024

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BEFORE

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THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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MISCELLANEOUS FIRST APPEAL NO. 103222 OF 2022 C/W MISCELLANEOUS FIRST APPEAL NO. 104311 OF 2022

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IN MFA NO.103222/2022 BETWEEN:

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SRI. SHIVARAY S/O. BHIMAPPA NYAMAGOUD, AGE: 33 YEARS, OCC: MOBILE REPAIR AND AGRICULTURE, NOW NIL, R/O: KULAHALLI VILLAGE, TQ: BANAHATTI, DIST: BAGALKOT - 587311.

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…APPELLANT

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(BY SRI. HARISH S. MAIGUR, ADVOCATE)

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AND:

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SRI. SALIM S/O. SHABBIR ALAGUNDI, AGE: 31 YEARS, OCC: BUSINESS, R/O: BHARPET GALLI, JAMKHANDI, DIST: BAGALKOT - 587301.

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Location: YASHAVANT HIGH NARAYANKAR COURT OF KARNATAKA

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THE MANAGER (LEGAL),

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THE SBI GENERAL INSURANCE COMPANY LTD., 1^ST FLOOR, NO.3/1, RUKMINI TOWERS, FLATFORM ROAD, SHESHADRIPURAM, BENGALURU - .560020.

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…RESPONDENTS

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(BY SRI. SUBHASH J. BADDI, ADVOCATE FOR R2; R1-SERVED)

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THIS MFA FILED U/S.173 (1) OF MOTOR VEHICLES ACT, PRAYS THAT, THIS HON’BLE COURT MAY BE PLEASED TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD PASSED IN M.V.C. NO.153/2021, ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & MEMBER MACT, JAMKHANDI, DATED 05.07.2022, BY

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NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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ALLOWING THIS APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO.104311/2022 BETWEEN:

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THE MANAGER (LEGAL), THE SBI GENERAL INSURANCE COMPANY LTD. 1^ST FLOOR, NO.3/1 RUKMINI TOWERS FLATFORM ROAD, SHESHADRIPURAM, BENGALURU - 560020, NOW REPRESENTED BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI. SUBHASH J.BADDI, ADVOCATE)

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AND:

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SRI. SHIVARAY S/O. BHIMAPPA NYAMAGOUD, AGE: 33 YEARS, OCC: MOBILE REPAIR AND AGRICULTURE WORK, R/AT: KULAHALLI VILLAGE, TQ: BANAHATTI RABAKAVI, DIST: BAGALKOT – 587311.

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SRI. SALIM S/O. SHABBIR ALAGUNDI, AGE: 33 YEARS, OCC: BUSINESS, R/O: BHARPETH GALLI, JAMAKHANDI – 587301.

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…RESPONDENTS (BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1; R2-SERVED)

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THIS MFA FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYED THAT THIS HON’BLE COURT IS PLEASED TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 05.07.2022 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND MEMBER MACT, JAMAKHANDI IN MVC NO.153/2021, WITH COST IN THE INTEREST AND EQUITY.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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3 - NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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Miscellaneous First Appeal No.103222/2022 is filed by the claimant seeking enhancement of compensation and Miscellaneous First Appeal No.104311/2022 is filed by the insurance company aggrieved by the award of compensation on the ground that it is on the higher side.

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Facts in brief are that on 15.09.2020, the appellant/claimant was riding the motorcycle bearing registration No.KA-31/S-2325 along with Sri.Ramjan @ Ramjansab Kalikhan as a pillion rider and were returning to Kulahalli about 7:30pm and while they were near Kadarkhandi village, at that time a car bearing registration No.KA.04.MT.6533 being driven by its driver in a rash and negligent manner, came from opposite side and hit the motorcycle causing accident and the petitioner sustained grievous hurt all over the body and immediately he was shifted to Dr. Kusabi Orthopedic Trauma Centre, Jamkhandi,

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4 - NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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wherein he took treatment as an inpatient for 25 days and undergone operation and steel rods are inserted to the left and the right leg and to the right hand and spent more than Rs.3,00,000/- towards medical treatment and he is under follow up treatment and he has to get the rods removed in future and he requires Rs.1,00,000/- towards future medical expenses. The Tribunal after recording the evidence has awarded compensation under different

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heads as under:

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01	Loss of future income	Rs.3,96,000-00
02	Pain and sufferings	Rs. 50,000-00
03	Loss of income during treatment	Rs. 41,250-00
04	Medical, conveyance, Nutrition and Attendant charges	Rs.2,35,000-00
05	Loss of future happiness and amenities and marriage prospectives	Rs. 30,000-00
	Total	Rs.7,52,250-00

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The Tribunal has awarded the said compensation with interest at 6% per annum directing the insurance company to pay the compensation.

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5 - NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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Aggrieved by the said award of

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compensation, the insurance company as well as the claimant are before this Court.

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Heard the learned counsel for the

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insurance company and the learned counsel for the claimant.

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The learned counsel for the insurance company would contend that the disability taken at 15% by the Tribunal is proper and correct and the compensation awarded under different heads are on the higher side.

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Learned counsel for the claimant would

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contend that the claimant has sustained two major and one minor fracture and his total disability is 40% (i.e., 23%, 15% and 2%) and the treated Doctor, who has been examined as PW.2, has issued wound certificate-Ex.P-4 and considering the same and also the X-rays and other medical documents which are at Exs.P-139 to 155, the disability

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6 - NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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assessed by the Tribunal at 15% is on the lower side. He contends that Ex.P-138 indicates that the claimant requires a sum of Rs.1,00,000/- for his future medical expenses and the same has not been considered by the Tribunal. The compensation awarded under the head pain and suffering is on the lower side. The Tribunal has not awarded any compensation towards attendant charges and nourishment and towards loss of amenities. On these grounds he prayed to allow his appeal and enhance the compensation.

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Having heard the learned counsel, the

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Court has perused the impugned judgment and award and the trial Court records.

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The claimant has sustained right femur distal 1/3^rd and lateral condyle fracture, left lower 1/3^rd tibia/fibula fracture and right neck fracture of 5^th metacarpal. The petitioner has undergone surgery and ORIF with plating, CRIF with nailing

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NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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done under SA, CRIF with K-wire done under SA and he was admitted to the hospital on 15.09.2020 and discharged on 03.10.2020. The treated Doctor has been examined as PW.2 and he has deposed that the claimant has sustained permanent physical disability to an extent of 23% to right lower limb, 15% to left lower limb and 2% to left hand. PW-2 has opined that the clamant has got disability of 30% to particular limb. PW.2 in his cross-examination has denied the suggestion that the petitioner has not sustained such a disability. Nothing has been elicited in the cross-examination of PW.2 by respondent No.2 with regard to disability and that the disability is on the higher end. The Tribunal has rightly considered that the claimant is an unskilled labour and therefore he cannot do his daily routine work due to deformities as noted supra. Considering the wound certificate-Ex.p-4 and other medical documents Exs.P-139-155, avocation of the petitioner and considering his age, the permanent

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8 - NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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functional disability as fixed by the Tribunal @ 15% is on the lower end. The Tribunal ought to have taken the permanent functional disability of the petitioner at 20%. The Tribunal has rightly considered the age of the petitioner as 32 years on the basis of the medical documents produced by him and appropriate multiplier is 16 as per Sarala Verma

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Vs. Delhi Transportation Corporation and Another¹ .

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On considering the avocation and age of the petitioner, the total loss of future income is calculated as Rs.5,28,000/(Rs.13,750x12x16x20/100). The Tribunal has awarded a sum of Rs.50,000/- under the head pain and suffering. The appellant has sustained two major and one minor fracture and the amount awarded under the head pain and suffering in a sum of Rs.50,000/- is on the lower side. The petitioner is entitled to a sum of Rs.70,000/- under the head

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1 (2009) 6 SCC 121

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NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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pain and suffering. The Tribunal has rightly awarded a sum of Rs.41,250/- towards loss of income during treatment. The Tribunal has rightly awarded a sum of Rs.2,35,000/- towards medical expenses. The Tribunal has not awarded any amount towards attendant charges and nutrition. The petitioner has been admitted as an inpatient for a period of 19 days and therefore, he is entitled for a sum of Rs.19,000/- i.e. Rs.1,000/- per day for 19 days under the head attendant charges and nourishment. The Tribunal has not awarded any amount under the head future medical expenses. Ex.P-138 issued by the treated Doctor indicates that the claimant requires a further sum of Rs.1,00,000/- for his future medical expenses. Taking into consideration the said document, the appellant is entitled to a sum of Rs.1,00,000/- towards future medical expenses. The Tribunal has not awarded compensation under

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the head loss of amenities. The clamant has sustained two major and one minor fracture and

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NC: 2024:KHC-D:11249 MFA No. 103222 of 2022 C/W MFA No. 104311 of 2022

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therefore, he is entitled to a sum of Rs.70,000/(i.e. Rs.25,000x2 + Rs.20,000) towards amenities.

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In view of the above, the appellant is entitled to re-assessed compensation under the following heads:

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Sl.	HEADS	AMOUNT
No.
1	Loss of future income	5,28,000/-
2	Pain and suffering	70,000/-
3	Loss of income during treatment period	41,250/-
4	Medical expenses	2,35,000/-
5	Nourishment, traveling and attendant charges	19,000/-
6	Future medical expenses	1,00,000/-
7	Loss of amenities	70,000/-
	TOTAL	10,63,250/-

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Accordingly, the appellant is entitled to compensation of Rs.10,63,250/as against Rs.7,52,250/awarded by the Tribunal. The

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enhanced compensation is Rs.3,11,000/-.

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In the result, the following

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ORDER

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Both the appeals are disposed of in the

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following terms:

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The judgment and award dated 05.07.2022 passed by the learned Principal Senior Civil Judge and MACT, Jamkhandi in MVC No.153/2021 stands modified. The appellant is entitled to enhanced compensation of Rs.3,11,000/- with interest at 6% per annum from the date of petition till the date of deposit except towards future medial expenses.

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The claimant is entitled for release of entire enhanced compensation.

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The amount in deposit before this Court is ordered to be transmitted to the Tribunal concerned.

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Registry is directed to draw the award accordingly.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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Kmv Ct:anb

Sri Shivaray S/O Bhimappa Nyamagoud v. Sri Salim S/O Shabbir Alagundi

Case brief

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What did the court decide?

Sri Shivaray S/O Bhimappa Nyamagoud v. Sri Salim S/O Shabbir Alagundi

Case brief

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