The Branch Manager Cholamandalam Ms Gic Ltd. Vs Nayazulla

THE BRANCH MANAGER CHOLAMANDALAM MS GIC LTD NO.16-1-44(14), 1^ST FLOOR, SR COMPLEX, BENDUR BELIROAD, KANKANADI SO SOUTH CANARA, NOW REP. BY ITS THE MANAGER, CHOLAMANDALAM MS GIS LTD., NO.4, 9^TH FLOOR, LIVING 6, GOLDEN HEIGHTS, 59^TH C CROSS, 4^TH M BLOCK, RAJAJINAGAR INDUSTRIAL ESTATE, NEAR SUJATHA TALKIES, BANGALORE-560 010.

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…APPELLANT

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(BY SRI. PRADEEP B, ADVOCATE)

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AND:

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NAYAZULLA S/O ABDUL RASHEED, NOW AGED ABOUT 40 YEARS, R/O BACKSIDE ROAD OF MECCA MASJID SULEBYLE, SHIVAMOGGA.

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HC-KAR

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NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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CNR: KAHC010137152022

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IRFAN B

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S/O PYARE JAN, NOW AGED ABOUT 33 YEARS, R/O 7^TH CROSS, RIGHT SIDE TIPPU NAGARA, SHIVAMOGGA.

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SAMIULLA S/O NAZEER SAB, AGED ABOUT 53 YEARS, R/O 2^ND CROSS, RIGHT SIDE, MILAGHATTA, SHIVAMOGGA.

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…RESPONDENTS

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(BY SRI. M.V MAHESWARAPPA, ADVOCATE FOR R1, NOTICE TO R2 & R3 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.11.2021 PASSED IN MVC NO. 937/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, C.J.M AND ADDITIONAL M.A.C.T.-VII, SHIVAMOGGA, AWARDING COMPENSATION OF RS.14,96,610/WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO. 5351/2022

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BETWEEN:

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NAYAZULLA S/O ABDUL RASHEED AGED ABOUT 40 YEARS R/AT BACK SIDE ROAD OF MECCA MASJID SULEBYLU, SHIVAMOGGA SHIVAMOGGA-577 201

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...APPELLANT

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(BY SRI. M.V MAHESWARAPPA, ADVOCATE)

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HC-KAR

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NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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CNR: KAHC010137152022

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AND:

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IRFAN B S/O PYARE JAN AGED ABOUT 33 YEAWRS R/AT 7^TH CROSS, RIGHT SIDE TIPPU NAGARA SHIVAMOGGA 577 201

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SAMIULLA S/O NAZEER SAB AGED ABOUT 53 YEARS R/O 2^ND CROSS RIGH SIDE, MILAGHATTA SHIVAMOGGA-577 201

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THE MANGER CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD NO. 16-1-44 (14), 1^ST FLOOR, S.R. COMPLEX, BENDUR BELL ROAD, KANKANADI S.O SOUTH CANARA 566 221

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...RESPONDENTS

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(BY SRI. PRADEEP B, ADVOCATE FOR R3, NOTICE TO R1 & R2 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 10.11.2021 PASSED IN MVC NO.937/2017 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CJM AND AMACT-VII, SHIVAMOGGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

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HC-KAR

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NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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CNR: KAHC010137152022

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ORAL JUDGMENT

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While MFA.No.2708/2022 is by the insurer challenging saddling of liability on it as well as on the quantum of compensation, MFA.No.5351/2022 is by the claimant seeking enhancement of compensation awarded vide judgment and award dated 10.11.2021 passed in MVC.No.937/2017.

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The fact that the accident occurred and the further fact

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that the offending vehicle was insured is not in dispute.

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The Tribunal, on assessment of evidence, has awarded

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the following sums as compensation:

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Sl. No.	Particulars	Amount in (Rs.)
1.	Pain and sufferings	30,000
2.	Loss of future income	11,82,720
3.	Medical expenses	2,08,890
4.	Loss of income during the laid up period	40,000
5.	Conveyance, food, nourishment, attendant charges	15,000
6.	Loss of amenities in life	20,000
	Total	14,96,610

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5 - NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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HC-KAR

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CNR: KAHC010137152022

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Heard the learned counsel for the claimant and the learned counsel for the insurer and perused the documents.

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Learned counsel for the claimant would contend that the Tribunal has erred in assessing 40% disability to the claimant although the Doctor has assessed 80% partial disability and functional disability as per Ex.P12 and P15, as such, the same requires interference by this Court.. Further, the Tribunal has erred in awarding just compensation under all the heads. Accordingly, he prays for enhancement of compensation and for allowing of the claimant's appeal.

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Per contra , learned counsel for the insurer would contend that the Tribunal has erred in assessing the disability of the claimant at 40% based on the evidence of the Doctor - PW.3, who has not treated the claimant. He would further contend that the Doctor has deposed that the claimant has sustained neuro disorder and that his mindset is similar to 6 years 5 months old kid. However, the claimant has been examined before the Tribunal and that he had given clear answers in the cross-examination as a normal man. As such, the evidence of the Doctor cannot be believed. Consequently, the Tribunal has

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HC-KAR

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NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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CNR: KAHC010137152022

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erred by adding 40% future prospects to the notional income. Accordingly, he would pray for allowing of insurer's appeal.

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I have given my anxious consideration to the submissions of learned counsel for both the parties.

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A perusal of Ex.P12 reveals that the claimant has suffered 80% neurobehavioral disability and that the same has been assessed by the Doctor based on DGHS Guidelines. It further reveals that the claimant has moderate mental retardation and low level of memory functioning. However, the claimant, during the examination before the Tribunal has very clearly answered to all the questions with regard to the accident, hospitalization, medical bills, avocation and the further treatment he is required to take, thereby making him capable of understanding and giving evidence individually, which is contrary to the statements made by the doctor. In view of the same, I deem it just and appropriate to assess the disability suffered by the claimant at 20% .

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Since there was no credible evidence to substantiate the actual monthly income of the claimant, the Tribunal has rightly

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7 - NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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HC-KAR

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CNR: KAHC010137152022

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determined the monthly income, notionally at Rs.11,000/- by adopting the monthly income determined by Karnataka State Legal Services Authority.

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As the claimant was aged about 35 years, a multiplier of '16' would have to be applied. Consequently, the claimant would be entitled to a sum of Rs.4,22,400/- (11,000 x 12 x 16 x 20%) towards 'loss of future income'.

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As a consequence, the amount of Rs.40,000/- awarded by the Tribunal towards 'loss of income during the laid up period' would also stand enhanced to Rs.66,000/- considering the laid up period as six months (11,000 x 6 months).

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Having regard to the injuries suffered and having regard to the lasting effects of the injuries on the claimant, the claimant would be entitled to a sum of Rs.60,000/- towards 'pain and suffering' as against Rs.30,000/- and a sum of Rs.50,000/- towards ’loss of amenities' as against the sum of Rs.20,000/- awarded by the Tribunal.

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HC-KAR

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NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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CNR: KAHC010137152022

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The sum of Rs.15,000/-, awarded by the Tribunal towards 'Conveyance, food and nourishment and attendant charges' , being just and proper is affirmed.

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The sum of Rs.2,08,890/- awarded towards medical expenses, being based on documentary evidence, is affirmed.

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Having regard to the requirement of further treatment to the claimant, I deem it just and appropriate to award a sum of Rs.25,000/- towards 'Future Medical Expenses'.

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Consequently, the award of the Tribunal is modified and the claimant would be entitled to the following compensation:

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Sl. No.	Compensation under different Heads	As awarded by the Tribunal	As awarded by this Court
		(Rs.)	(Rs.)
1.	Pain and sufferings	30,000	60,000
2.	Loss of future income	11,82,720	4,22,400
3.	Medical expenses	2,08,890	2,08,890
4.	Future medical expenses	-	25,000
5.	Loss of income during	40,000	66,000

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HC-KAR

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NC: 2026:KHC:38566 MFA No. 2708 of 2022 C/W MFA No. 5351 of 2022

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CNR: KAHC010137152022

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	the laid up period
	Conveyance, food,	15,000	15,000
6.	nourishment, attendant charges
7.	Loss of amenities in life	20,000	50,000
	Total	14,96,610	8,47,290

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Thus, the claimant is held entitled to the total compensation of Rs.8,47,290/- as against Rs,14,96,610/-, along with interest at the rate of 6% p.a. from the date of petition till its realization.

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The Insurance Company is directed to deposit the amount of compensation awarded within six weeks from the date of receipt of a certified copy of this judgment.

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The amount in deposit shall be transferred to the Tribunal.

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Both the appeals are accordingly allowed in part .

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SD/(RAJESH RAI K) JUDGE

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PKS/List No.: 1 Sl No.: 41

The Branch Manager Cholamandalam Ms Gic Ltd. v. Nayazulla

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The Branch Manager Cholamandalam Ms Gic Ltd. v. Nayazulla

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