Shivakumar B B Vs Mohammed Nasarulla

SHIVAKUMAR B B S/O BASAVARAJ. B.P AGED ABOUT 26 YEARS, R/O MANJUNATHA NILAYA, NEAR THIPPENAGATTAMMA TEMPLE 5TH CROSS, JOGGIMATTI ROAD, CHITRADURGA 577501.

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…APPELLANT

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(BY SRI. B PRAMOD, ADVOCATE)

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Digitally signed by NIRMALA DEVI

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Location: HIGH COURT OF KARNATAKA

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AND:

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MOHAMMED NASARULLA S/O MOHAMMED ISMAIL, MAJOR, R/O. 952, NATIONAL SHAMIYANA, CHALLAKERE ROAD, JAGALUR TOWN-577528 DAVANAGERE

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THE BRANCH MANAGER THE NEW INDIAN ASSURANCE CO LTD, BRANCH OFFICE NEAR P.B. ROAD, CHITRADURGA 577501.

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…RESPONDENTS (BY SRI. C R RAVISHANKAR, ADVOCATE FOR SRI. K SURYANARAYANA RAO, ADVOCATE FOR R2

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NC: 2025:KHC:23983 MFA No. 3916 of 2017 C/W MFA No. 2791 of 2017

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2 -

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HC-KAR

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R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.01.2017 PASSED IN MVC NO.1254/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, AND IV MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 2791/2017

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BETWEEN:

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THE NEW INDIA ASSURANCE CO LTD BRANCH OFFICE CHITRADURGA TOWN THROUGH MOTOR THIRD PARTY CLAIMS HUB, M G ROAD BANGALORE-560 001 BY DULY CONSTITURED ATORNEY

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...APPELLANT

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(BY SRI. C R RAVISHANKAR, ADVOCATE FOR SRI. K SURYANARAYANA RAO, ADVOCATE)

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AND:

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B B SHIVAKUMAR S/O BASAVARAJ AGED ABOUT 26 YEARS R/A MANJUNATHA NILAYA NEAR THIPPENAGATTAMMA TEMPLE 5TH CORSS JOGGIMATTI ORAD CHITRADURGA-577 501

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MOHAMMED NASARULLA S/O MOHAMMED ISMAIL MAJOR R/OF #952 NATIONAL SHAMIYANA CHALLAKERE ROAD JAGALUR TOWN DAVANGERE-577 528

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...RESPONDENTS

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(BY SRI. B PRAMOD, ADVOCATE FOR R1

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HC-KAR

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R2 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.01.2017 PASSED IN MVC NO.1254/2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, AND IV MACT, CHITRADURGA, AWARDING COMPENSATION OF RS. 20,01,600/-WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The above appeals are filed calling in question the judgment and award dated 17.01.2017 passed in MVC No.1254/2015 by the I Additional Senior Civil Judge and IV MACT, Chitradurga¹ . Hence, both the appeals are taken up together for consideration.

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The Tribunal vide judgment and award dated 17.01.2017 has awarded a total compensation of `20,01,600/together with interest at 8% p.a., from the date of petition till date of payment. Being aggrieved, the claimant has preferred MFA No.3916/2017 seeking for enhancement of compensation

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1 Hereinafter referred to as ‘Tribunal’

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HC-KAR

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and the insurer has preferred MFA No.2791/2017 seeking for

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reduction of the quantum of compensation.

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The findings of the Tribunal on negligence and liability are not under challenge and have attained finality. Hence, the only aspect that is required to be considered in the present appeal is with regard to the quantum of the compensation awarded.

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Heard the submissions of learned counsel Sri B.Pramod for the claimant and learned counsel Sri C.R.Ravishankar for learned counsel Sri K.Suryanarayana Rao, for the insurer.

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The Tribunal has assessed the age of the claimant as 26 years by placing reliance on the SSLC Marks Card, which is just and proper and the appropriate multiplier is 17.

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The Tribunal has assessed the notional income at 8,000/- p.m. No documents have been produced to demonstrate the income. Hence, keeping in mind the date of the accident, the income is re-assessed as 8,500/- p.m.

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It is forthcoming from the wound certificate (Ex.P5)

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and the discharge summary (Ex.P9) that the claimant has sustained injury to his right lower limb and the right lower limb

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HC-KAR

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of the claimant is amputated above the knee. The claimant has taken treatment as an inpatient for a total period of 26 days.

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The doctor, PW.3 has assessed the disability of the claimant at 80% to the limb and the Tribunal, upon appreciation of the material on record has re-assessed the disability as 80%. It is the contention of the learned counsel for the insurer that the disability as has been assessed by the Tribunal is on the higher side having regard to Sl.No.18 of Part II of Schedule I of the Employees Compensation Act, 1923, wherein the percentage of disability for amputation below the hip and above the knee is stipulated as 70%. Hence, it is just and proper that the disability be re-assessed as 70%. Since the disability of the claimant is assessed at 70%, future prospects is required to be awarded having regard to the judgment of the Hon’ble Supreme Court in the case of Jitendra v. Sadiya² .

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In view of the aforementioned, the compensation is re-assessed as follows:

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9.1 Having regard to the nature of injuries sustained, it is just and proper that the compensation towards pain and

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2 2025 SCC OnLine SC 261

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HC-KAR

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suffering be re-assessed as 1,00,000/- as against 3,00,000/awarded by the Tribunal;

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9.2 Having regard to the medical bills and keeping in mind the incidental expenses, towards food and nourishment charges, the compensation awarded at `1,00,000/- towards medical and incidental expenses by the Tribunal is affirmed;

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9.3 The period of treatment is taken as 5 months and the compensation towards the same is re-assessed as (8,500/-x5) 42,500/-;

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9.4 The Tribunal has not awarded any amount towards loss of amenities. Having regard to the nature of injuries sustained and the resultant disability, a sum of `75,000/- is awarded towards the same;

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9.5 Loss of marriage prospects is re-assessed as 1,00,000/- as against 2,00,000/- awarded by the Tribunal;

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9.6 The compensation towards disability/loss of earning capacity is re-assessed as (8,500/-+40%x12x17x70%) 16,99,320/- as against `13,05,600/- awarded by the Tribunal;

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9.7 Having regard to the fact that the right leg of the claimant has been amputated above the knee, the claimant will be required to incur certain expenses towards an artificial limb.

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HC-KAR

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In view of the same, it is just and proper to award a sum of

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`50,000/- towards future medical expenses;

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9.8 The compensation awarded by the Tribunal towards loss of estate is set aside.

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It is noticed that the Tribunal has awarded interest at 8% p.a. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as reassessed by this Court.

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Accordingly, the total compensation under various

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heads is re-assessed as follows:

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Sl. No.	Heads	Amount awarded by the Tribunal (`)	Amount awarded by this Court (`)
1.	Towards pain and suffering	300000.00	100000.00
2.	Towards medical & incidental expenses	100000.00	100000.00
3.	Loss of marriage prospects	200000.00	100000.00
4.	Loss of amenities	0.00	75000.00
5	Loss of income during laid up period	0.00	42500.00
6	Loss of estate	96000.00	0.00
7.	Future medical expenses	0.00	50000.00
8	Permanent disability	1305600.00	1699320.00
	Total	2001600.00	2166820.00

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HC-KAR

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Hence, the claimant is entitled for an enhanced

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compensation of (21,66,820/- - 20,01,600/-) `1,65,220/-.

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In the result, the following:

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ORDER

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i) The above appeals are allowed in part;

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ii) The judgment and award dated 17.01.2017 passed in MVC No.1254/2015 by the I Additional Senior Civil Judge and IV MACT, Chitradurga, is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered.

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iii) The claimant is entitled for a total compensation of Rs.21,66,820/- with interest at the rate of 7% p.a. from the date of petition till its realization;

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iv) The amount deposited by the appellant/insurer in MFA No.2791/2017 along with the records be transmitted to the Tribunal;

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v) After deducting the amount deposited by the insurer, if the insurer is required to deposit any further amount towards the compensation awarded, together with accrued interest, the same shall be deposited within six weeks. In the event of any excess amount deposited by the insurer, the same shall be refunded to the insurer;

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HC-KAR

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vi) The Registry to draw the modified award accordingly;

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No costs.

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Sd/(C.M. POONACHA) JUDGE

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ND List No.: 1 Sl No.: 0

Shivakumar B B v. Mohammed Nasarulla

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Shivakumar B B v. Mohammed Nasarulla

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