Partly allowed

M C Udaya Kumar v. Mahaboob Basha

Karnataka HC20 Aug 2024MFA/6142/2019

Case brief

AI extract

What is this about?

Claimant appealed for enhancement of motor accident compensation awarded by MACT Bengaluru for grievous leg injuries caused by a rashly driven autorickshaw. The court increased monthly income to Rs.15,000, functional disability to 16%, and various heads, awarding total compensation of Rs.9,52,590 with interest.

What did the court decide?

Enhanced compensation of Rs.2,78,000 (total Rs.9,52,590) with 6% p.a. interest; insurer directed to deposit within six weeks for release to claimant.

M C Udaya Kumar Vs Mahaboob Basha — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:33315 MFA No. 6142 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF AUGUST, 2024 BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI

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MISCELLANEOUS FIRST APPEAL NO. 6142 / 2019 (MV-I)

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BETWEEN:

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M.C. UDAYA KUMAR, S/O CHANDRASHEKAR, AGED ABOUT 39 YEARS, R/AT NO.23, PRAKASH REDDY SUPREME LAYOUT, KOGILU CIRCLE, YALAHANKA, BENGALURU-560 064.

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…APPELLANT

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(BY SRI R. SHASHIDHARA, ADVOCATE)

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AND:

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MAHABOOB BASHA, S/O RAHMATHULLA, AGE MAJOR, R/O OLD POLICE QUARTERS, PAVAGADA TOWN PAVAGADA, TUMKUR DISTRICT -572 103.

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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BHARATHI AXA GEN INSURANCE CO. LTD., BRANCH OFFICE I FLOOR, FORMS ICON, SURVEY NO.28, DODDANAKKUNDI, BENGALURU-560 037.

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…RESPONDENTS

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(BY SRI B.PRADEEP, ADVOCATE FOR R2; NOTICE TO R1 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.08.2018 PASSED IN MVC NO. 3851/2017 ON THE FILE OF THE III ADDITIONAL JUDGE & MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU [SCCH-18], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING ON I.A., THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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2 - NC: 2024:KHC:33315 MFA No. 6142 of 2019

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 23.08.2018 passed by III Addl. Judge, Court of Small Causes & MACT (SCCH-18), Bengaluru, in MVC no.3851/2017, this appeal is filed.

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Sri R Shashidhara, learned counsel for appellant submitted, appeal was by claimant for enhancement of compensation. It was submitted, on 08.05.2017 at 8:00 PM while petitioner and his friend were proceeding on motorcycle bearing no.KA-06-EC-3379 to go to Kallooruppan village, Madakashira Taluk, near Polerakka temple cross, Gundralahalli, an autorikshaw bearing registration no.KA-64-1829 came from opposite direction driven by its driver in rash and negligent manner and dashed against motorcycle. Due to accident, claimant sustained grievous injuries and was initially admitted to Government hospital, Pavagada, and thereafter he took treatment at Victoria hospital and Sparsh Hospital, Bengaluru. Despite treatment, he sustained permanent disability and consequently suffered loss of earning capacity. It was

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3 - NC: 2024:KHC:33315 MFA No. 6142 of 2019

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submitted, prior to accident claimant was working as driver of heavy goods vehicle and earning Rs.40,000/- per month. Claiming compensation of Rs.50,00,000/-, he filed claim petition under Section 166 of Motor Vehicles Act (for short 'M.V.Act' ) .

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It was submitted, though due to accidental disability, claimant was unable to pursue his avocation as earlier, tribunal awarded inadequate compensation by assessesing meager monthly income at Rs.10,000/-. It was submitted, claimant sustained fracture of left femur and tibia with partial tear of left TA tendon. However, tribunal awarded meager amount of Rs.40,000/- towards 'pain and suffering. It was submitted, Rs.10,000/awarded towards 'loss of amenities' and Rs.15,000/- towards 'future medical expenses' were also on lower side and sought enhancement.

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It was submitted, claimant had examined PW.2doctor, who had assessed disability at 47% to limb, 16% to whole body and 4% disability due to scaring. Tribunal considered functional disability at only 13% and awarded inadequate compensation. It was submitted, even

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compensation awarded towards 'loss of income during laid up period' requires to be scaled up.

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On other hand, Sri B Pradeep, learned counsel for respondent no.2 sought to oppose appeal. It was submitted considering totality of circumstances and material on record, tribunal had assessed just compensation and there was no scope for enhancement. Even on ground that interest awarded at 9% per annum was on higher side and offset any scope for enhancement and sought for dismissal of appeal.

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Heard learned counsel and perused impugned judgment and award.

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From above and since claimant is in appeal for enhancement, point that would arise for consideration is:

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"Whether claimant is entitled for compensation as sought for?"

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Occurrence of accident involving insured vehicle due to rash and negligent driving by it's driver, claimant sustaining injuries and consequent permanent disability are not in dispute. Insofar as 'pain and suffering, tribunal had taken note of fact that claimant sustained fracture of compound type-III B

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fracture of condyle of left femur and tibia with partial tear of left TA tendon. However, tribunal awarded only Rs.40,000/towards 'pain and suffering'. Since claimant had sustained multiple grievous fractures, it would be appropriate to enhance it to Rs.80,000/-.

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Tribunal awarded Rs.3,45,590/- towards 'medical expenses' in complete reimbursement of amount for which bills were produced. Thus, there would be no scope for enhancement. Though, claimant stated that he was earning Rs.40,000/- per month, but same was not substantiated by any material except producing notarized copy of driving licence at Ex.P.7. Tribunal had noted that licence was in respect of LMV and also HGV, current as on date of accident. Under circumstances, tribunal was not justified in assessing his income notionally at Rs.10,000/-.

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Notional income for year 2017 in case of unskilled worker was Rs.11,000/-, therefore, it would be appropriate to consider monthly income of claimant at Rs.15,000/-. Tribunal awarded Rs.30,000/- towards 'loss of income during laid-up period', taking three months as period for recuperation. In view

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of assessment of monthly income at Rs.15,000/-, same would require enhancement to Rs.45,000/-. Tribunal awarded Rs.10,000/- towards 'attendant, nourishment and conveyance charges' at Rs.10,000/- as claimant was inpatient for 10 days, which appears to be just and proper and does not call for enhancement. Tribunal awarded Rs.15,000/- towards 'future medical expenses'. Since there are implants in situ, which require operation for removal, it would be appropriate to enhance it to Rs.30,000/-. Insofar as 'future loss of income', claimant had sustained injuries to his left leg. Tribunal had referred to admission by PW.2 that fractures were united. However, as P.W.2 assessed functional disability at 47% to affected limb and 16% to whole body, it would be appropriate to consider functional disability at 16%. Thus, future 'loss of income' would be Rs.4,32,000/-. Further tribunal had awarded Rs.10,000/- towards 'loss of amenities' which appears to be just and proper. Thus, claimant is entitled for total compensation of Rs.9,62,590/-. Point for consideration is answered partly in affirmative. Consequently, following:

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ORDER

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Appeal is allowed in part.

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Claimant would be entitled for enhanced compensation of Rs.9,52,590/- as against Rs.6,84,590/- awarded by tribunal. Enhanced compensation of Rs.2,78,000/- shall carry interest at 6% p.a. from date of petition till realisation.

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Insurer is directed to deposit enhanced compensation before Tribunal within six weeks. Upon deposit said amount shall be released to claimant.

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Sd/(RAVI V HOSMANI) JUDGE

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PSG

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List No.: 1 Sl No.: 10

M C Udaya Kumar v. Mahaboob Basha

Case brief

What is this about?

What did the court decide?

M C Udaya Kumar v. Mahaboob Basha

Case brief

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What did the court decide?

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