Sri S Mahesh Vs Sri Ayub Khan

SRI. S.MAHESH, AGED ABOUT 43 YEARS, S/O SHIVALINGAPPA, R/AT C/O SIDDALINGAPPA, NO.399, 4^TH MAIN, 4^TH CROSS, BHUVANESHWARI NAGAR, T.DASARAHALLI, HESARAGHATTA MAIN ROAD, BANGALORE-57.

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…APPELLANT

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(BY SRI. B.C. THIPPESWAMY, ADVOCATE)

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Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI. AYUB KHAN MAJOR BY AGE, S/O KARIM KHAN, NO.328, BELTHUR COLONY, KADUGODI, BANGALORE-67.

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THE REGIONAL MANAGER, M/S. UNITED INDIA INS. CO. LTD., 3^RD PARTY HUB, 6^TH FLOOR, KRISHI BHAVAN BUILDINGS, NEAR CORPORATION CIRCLE,

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HC-KAR

BANGALORE.

…RESPONDENTS

(BY SRI. O. MAHESH, ADVOCATE FOR R2, VIDE ORDER DATED 01.03.2018, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.02.2016 PASSED IN MVC NO.1502/13 ON THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE & 28TH ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 5693/2016

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BETWEEN:

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KUM. AMRUTHA C.M, AGED ABOUT 7 YEARS D/O S MAHESH MINOR, REPRESENTED BY HER FATHER AND NATURAL GUARDIAN, SRI. S.M. MAHESH, AGED ABOUT 46 YEARS S/O SHIVALINGAPPA R/A C/O SIDDALINGAPPA NO.399, 4^TH MAIN, 4^TH CROSS BHUVANESHWARI NAGAR, T. DASARAHALLI, HESARAGHATTA MAIN ROAD, BANGALORE-560 057.

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…APPELLANT

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(BY SRI. B.C.THIPPESWAMY, ADVOCATE)

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AND:

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SRI. AYUB KHAN, MAJOR BY AGE, S/O KARIM KHAN

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HC-KAR

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NO.328, BELTHUR COLONY KADUGODI BANGALORE-67.

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THE REGIONAL MANAGER, M/S UNITED INDIA INS.CO.LTD., 3^RD PARTY HUB, 6^TH FLOOR, KRISHI BHAVAN BUILDINGS, NEAR CORPORATION CIRCLE, BANGALORE.

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...RESPONDENTS

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(BY SRI. O.MAHESH, ADVOCATE FOR R2, VIDE ORDER DATED 01.03.2018, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.2.2016 PASSED IN MVC NO.1503/2013 ON THE FILE OF II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL COMMON JUDGMENT

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These appeals arise out of common judgment and

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award dated 10^th February 2016, passed by the II Addl.Small Causes Judge & XXVIII Addl.Chief Metropolitan Magistrate, MACT., Bengaluru (SCCH-13),

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HC-KAR

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(for short `Tribunal'), in MVC No.1502/2013 and MVC.No.1503/2013, filed by the claimants for awarding of compensation.

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Both the appeals arise out of common judgment and award, therefore they are taken up together for disposal.

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For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

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The brief facts of the case are that, on 25.11.2012, at about 11.00 a.m., the claimant in MVC.No.1502/2013, by name Mahesh was proceeding on a motorcycle bearing registration No.KA-02-HA-1288 along with his wife and kids, from T.Dasarahalli to Gollahalli. When they reached near Jindal Factory stop, a Qualis Car bearing registration No.KA-04-A-6048, being driven by its driver in a rash and negligent manner, hit the motorcycle. As a result, he and his second daughter Amrutha (claimant in MVC.No.1503/2013), sustained grievous injuries. He sustained head injuries and fracture of other facial bones.

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HC-KAR

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With these reasons, claimants prayed to award

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compensation.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the Qualis Car (offending vehicle). Respondent No.1 remained ex parte before the Tribunal. Respondent No.2-insurer appeared and filed its written statement denying the contentions of the claim petitioners. It also contended that the accident occurred due to the rash and negligent riding of the motorcycle by the claimant. It denied its liability to pay the compensation. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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MVC.No.1502/2013 and MVC.No.1503/2013 arose out of the same accident, therefore, the Tribunal clubbed both the petitions and recorded the common evidence. Claimants examined four witnesses as PW-1 to PW-4 and

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HC-KAR

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marked Exs.P-1 to P-29. Respondent No.2 has not led

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oral or documentary evidence.

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The Tribunal after hearing both parties and appreciating the evidence available on record, held that accident occurred due to rash and negligent driving of offending vehicle by its driver.

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In MFA.No.5692/2016 :

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The Tribunal accepted the age of the claimant

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as 40 years, his salary as Rs.14,803/-, taken the permanent disability suffered by the claimant as 40% to the whole body, applied the multiplier of `15' and awarded

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the following amount of compensation:

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Particulars	Amount in Rs.
Injury, pain and sufferings	80,000/-
Loss of earning during treatment	59,212/-
Medical expenses	2,51,500/-
Loss of future income	10,65,816/-
Loss of amenities	25,000/-

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HC-KAR

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Conveyance, nourishment, food and	20,000/-
attendant charges
Total	15,01,528/-

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Being dissatisfied with the award passed by the Tribunal, the claimant has filed present appeal seeking enhancement of the compensation.

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Learned counsel for the appellant/claimant vehemently contended that Tribunal has not considered the disability suffered by the claimant properly; As per the evidence of PW-3 - doctor, the disability sustained by the claimant to the whole body is 88%; The claimant lost his vision in the right eye; In addition, he suffered nerve related problems, which was stated by PW-3 doctor, but the same was not considered by the Tribunal; The Tribunal assessed the permanent disability as 40%. Furthermore, the Tribunal has not added future prospects to the income of the claimant while assessing the compensation. The amount of compensation awarded under other heads are

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HC-KAR

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all on the lower side. Therefore, prayed to enhance the

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same.

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Learned counsel for respondent No.2-insurer contended that the amount of compensation awarded by the Tribunal is just and proper, and it does not call for any interference by this Court. He contended that PW-3 was not a competent witness to state about the disability suffered by the Claimant. The claimant has not examined the Ophthalmologist to prove the extent of disability. Therefore, was argued that it was not a fit case for considering future prospects, as the claimant continued to be in service under the same employer and his salary remained unaffected. The Tribunal has properly considered the disability and determined the compensation. It does not call for any interference by this Court. With these reasons, he prayed to dismiss the claim petition.

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The fact of the accident, injuries sustained by the claimant are not seriously disputed. The Tribunal after

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HC-KAR

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appreciating the evidence on record, held that accident

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occurred due to rash and negligent driving of Qualis car by its driver.

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The claimant has produced the discharge

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certificate at Ex.P-8, which shows that the claimant has suffered following injuries :

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(i) B/L orbital swelling,

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(ii) sutured wound + over right eyebrow, multiple abrasions over right hand and right knee region, moving all 4 limbs

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(iii) Left ear blood stains +

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(iv) Pupils : Rt.-3mm 7 sluggish

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Lt.- 2mm & reacting to light.

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The medical records produced by the claimant,

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including the evidence of PW-3, corroborate the case of

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the claimant that he sustained the above said injuries. PW-3 in his evidence has stated that, the claimant has lost vision in the right eye. He gave the said information on the basis of disability certificate given by M.S.Ramaiah Hospital. As rightly submitted by learned counsel for the

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HC-KAR

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insurer, he is not a competent witness to testify regarding ophthalmologic issues. According to the claimant, the head injury he suffered caused severe impact on the nerves, resulting in the loss of vision in his right eye.

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Considering these facts and also following the principles of Workmen's Compensation Act, the Tribunal has taken the disability suffered by the claimant to the whole body at 40%. I do not find any reason to interfere in the said findings.

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Learned counsel for the appellant relies upon the judgment dated 27.05.2022 of Division Bench of this Court in the case of New India Assurance Company Limited -vsAbdul, S/o, Mehaboob Tahasildar and others, in MFA.No.103807/2016 C/w. MFA.No.103835/2016, wherein the Division Bench has added future prospects to the income of the claimant, even though the permanent disability suffered by the claimant in that case was 30% to

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HC-KAR

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the whole body. On that basis, learned counsel submits

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that, in this case future prospects has to be added.

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In the present case, the claimant was working as Boiler Operator and was earning a fixed salary. Due to the injuries sustained in the accident, as per the evidence of PW-4, for the time being, he left the job. Therefore, looking at the facts and circumstances of the present case, it was not a fit case to add future prospects to the income of the claimant.

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On re-appreciation of the evidence on record, the amount of compensation awarded by the Tribunal under the heads, pain and suffering, loss of amenities, loss of earnings during laid up period, attendant charges, etc., requires to be enhanced.

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The claimant was admitted in multi-speciality hospital for 20 days. Someone must have been attended to him in the hospital. He has suffered fractures of facial bones, which is noted in the medical records. It may

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HC-KAR

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cause inconvenience for the claimant in chewing the food

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or his digestive system. These facts are not considered by the Tribunal. Looking at all these facts and circumstances of the case, the claimant is entitled to the following

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amount of compensation :

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Particulars	Amount in Rs.
Pain and sufferings	1,25,000/-
Loss of amenities	50,000/-
Medical and incidental expenses	2,51,500/-
Attendant, special diet and conveyance charges	40,000/-
Loss of income during laid up period	88,818/-
(Rs.14,803/- x 6)
Loss of future earning capacity due to permanent disability	10,65,816/-
Total	16,21,134/-
Amount awarded by the Tribunal -	15,01,528/-
Enhancement -	1,19,606/-
*Rounded off -*	*1,20,000/-*

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The claimant is entitled to interest at the rate of 6%

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p.a. from the date of petition till its realisation.

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HC-KAR

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In MFA.No.5693/2016 :

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In the present appeal, the Tribunal has awarded global compensation of Rs.40,000/- to the claimant, who was a minor girl by name Amrutha, represented by her natural guardian.

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Learned counsel for the appellant/claimant contented that the minor girl, aged about four years, sustained head injury and other injuries, as mentioned in the medical records. She was admitted as an inpatient for two days and has undergone several medical investigations. They have spent substantial amount towards medical and other incidental expenses. However, the Tribunal has awarded meagre amount of compensation of Rs.40,000/-, including all the heads. Therefore, prayed to enhance the same.

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Learned counsel for the insurer seriously disputed the same and contended that she has sustained diminutive injuries and there were no serious injuries

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HC-KAR

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suffered by her and whatever amount of compensation awarded by the Tribunal is in itself excessive. Therefore, there is no need for enhancement of the compensation.

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The minor girl, aged about four years, sustained injuries. She must have been under shock and severe mental stress due to the said accident. She was admitted as an impatient in the hospital. She underwent several medical investigations, and thereafter it was found that she had no severe head injury. However, she had sustained several other injuries. Considering all these facts, she is also entitled to an enhancement of global compensation of Rs.20,000/-. She is also entitled to interest at the rate of 6% p.a. from the date of petition till its realization.

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Undisputedly, the respondent No.1 being the owner and respondent No.2 being the insurer are liable to pay the compensation.

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For the aforesaid discussions, I proceed to pass the following:

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HC-KAR

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ORDER

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i) The Appeals are allowed in part .

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ii) The judgment and award dated 1 0^th February 2016, passed in MVC.No.1502/2013 and MVC.No.1503/2013, by the II Addl.Small Causes Judge & XXVIII Addl.Chief Metropolitan Magistrate, M.A.C.T., Bengaluru (SCCH-13), stands modified.

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iii) The claimant in MVC.No.1502/2013 (MFA.No.5692/2016) is entitled to enhanced compensation of Rs.1,20,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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iv) The claimant in MVC.No.1503/2013 (MFA.No.5693/2016) is entitled to enhanced global compensation of Rs.20,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization.

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v) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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HC-KAR

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vi) The enhanced amount of compensation MVC.No.1502/2013 is ordered to be released in favour of the claimant on proper identification.

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vii) In MVC.No.1503/2013, since the claimant is a minor girl, the entire amount shall be kept in a Fixed Deposit in any Nationalised Bank till she attains the age of majority.

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viii) Draw award accordingly.

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Registry is directed to send back the records along

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with a copy of this judgment to the concerned Tribunal.

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Sd/- (UMESH M ADIGA) JUDGE

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bk/

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List No.: 1 Sl No.: 9

Sri S Mahesh v. Sri Ayub Khan

Case brief

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Sri S Mahesh v. Sri Ayub Khan

Case brief

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