Sridhara v Vs Ghouse Khan

S/O RAHAMAN KHAN AGED ABOUT 50 YEARS DRIVER AND GPA HOLDER OF CAR No.MH-01/NA-9401 R/O RAVI VERMA STREET VADDI-E-HUDA, BYE PASS ROAD SHIVAMOGGA TOWN-577 201. (D.L NO.KA-14 199221000730 VALID FROM 05-12-1992 TO 13-12-2021).

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AKSHAY V MEHTA MAJOR, No.A-261 NALANDA 62, PEDDOR ROAD MUMBAI-400 026. MAHARASHTRA STATE.

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HDFC ERGO GENERAL INSURANCE CO. LTD., 1^ST FLOOR, HDFC HOUSE, 165/166

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NC: 2026:KHC:29285 MFA No. 622 of 2024

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2 -

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HC-KAR

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BACKBAY RECLAMATION, H T PAREKH MARG MUMBAI-400 020. MAHARASHTRA STATE INSURER OF CAR No.MH-01/NA-9401 LOCAL BRANCH OFFICE CHIKKAMAGALURU-577 101.

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…RESPONDENTS

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(BY SRI B PRADEEP, ADVOCATE FOR R3 V/O DTD. 27.03.2024 NOTICE TO R1 & R2 ARE DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.06.2023 PASSED IN MVC No. 423/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the claimant seeking enhancement of compensation awarded in the judgment and award dated 27.06.2023 passed in MVC No.423/2021 by Senior Civil Judge and Additional MACT, Tarikere.

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3 - NC: 2026:KHC:29285 MFA No. 622 of 2024

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HC-KAR

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2. Even though the appeal is listed for admission, it

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is taken up for disposal with the consent of counsels for both parties.

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3. The appellant has made a claim petition praying to award compensation for injuries sustained by him in a road traffic accident which took place on 02.07.2020, contending that the accident occurred due to rash and negligent driving of the driver of the car bearing No.MH01/NA-9401. The Tribunal recorded the evidence and appreciating the evidence on records has awarded the compensation under different heads as under:

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1.	Towards Pain and suffering	Rs.25,000/-
2.	Towards Medical Expenses	Rs.4,44,510/-
3.	Towards diet, food, attendants charges and conveyance	Rs.15,000/-
4.	Towards loss of income during laid up period	Rs.43,500/-
5.	Towards loss of future earning capacity	Rs.2,95,800/-
6.	Towards loss of amenities	Rs.10,000/-
	Total	Rs.8,33,810/-

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4. The Tribunal has also awarded interest at the rate

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of 6% per annum from the rate of petition till realisation and

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HC-KAR

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directed respondent No.3 –insurer to pay the compensation amount with interest. The claimant has filed the present appeal seeking enhancement of the compensation amount.

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5. Heard learned counsel for the appellant –claimant and learned counsel for respondent No.3 –insurer.

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6. Learned counsel for the appellant –claimant would contend that the appellant has sustained severe injuries, which are noted in Ex.P9. The appellant –claimant underwent two surgeries and disability has been assessed by doctor/C.W.1 at 52.48% to the lower limb and 14.68% to the whole body. The Tribunal has taken the disability of the whole body at 10%. The doctor has stated that the claimant is entitled to additional surgery and also surgery for removal of implants and estimated the expenses at Rs.3,00,000/-. The Tribunal has not awarded future medical expenses. The compensation awarded for pain and suffering, loss of amenities are on lower side. With these, she prayed to allow the appeal and enhance the compensation awarded.

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HC-KAR

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7. Learned counsel for respondent No.3 -insurer

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would contend that the compensation awarded by the Tribunal is just and proper and there are no grounds for enhancement.

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8. Having heard learned counsels, the Court has perused impugned judgment, award and trial Court records.

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9. On perusal of Ex.P9 –wound certificate, the claimant has sustained injuries “Right type III-B open fracture right distal femur with bone loss, Medial condyle femur fracture, Vastus medialis and inter medium muscle tear and tissue loss and right type III-B open fracture medial malleoli with complete talus loss, tibalis posterior tendon loss”.

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10. C.W.1 -doctor who has issued Ex.P18 -disability certificate. The doctor has assessed the disability of the claimant of lower limb at 52.48% and whole body at 14.68%. Considering the said aspect, the disability taken by the Tribunal at 10% is not proper and the disability to be

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HC-KAR

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taken at 14%. The Tribunal has rightly taken the notional income at Rs.14,500/- as per chart prepared by the State Legal Services Authority for settlement of disputes in Lok Adalath. Considering the said aspect, the loss of future income is calculated as under:

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Rs.14,500/- x12x17x14% =Rs.4,14,120/-.

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11. Considering the injuries sustained by claimant noted above, the compensation awarded for pain and suffering and the loss of amenities requires to be enhanced. The claimant is entitled to pain and suffering in a sum of Rs.1,00,000/- as against Rs.25,000/- and loss of amenities in a sum of Rs.50,000 as against Rs.10,000/- as awarded by the Tribunal.

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12. C.W.1 is doctor in his disability certificate -Ex.P18

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and also in his evidence stated that the claimant has to undergo additional surgery for removal of implant etc., and estimated the future medical expenses at Rs.3,00,000/-. Considering the said aspect, the claimant is entitled to future

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HC-KAR

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medical expenses in a sum of Rs.1,00,000/-. The Tribunal

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has rightly awarded attendant charges in a sum of Rs.15,000/-, medical expenses at Rs.4,44,510/- and loss of income during laid up period for 03 months in a sum of Rs.43,500/-. Considering the above, the claimant is entitled

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to total compensation under different heads as under:

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1	Pain and suffering	Rs.1,00,000/-
2	Medical expenses	Rs.4,44,510/-
3	Attendant charges, conveyance charges, food and nourishment etc	Rs.15,000/-
4	Loss of income during laid up period	Rs.43,500/-
5	Loss of future earning	Rs.4,14,120/-
6	Loss of amenities	Rs.50,000/-
7	Future medical expenses	Rs.1,00,000/-
	Total	Rs.11,67,130/-

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The claimant is entitled to total compensation of Rs.11,67,130/- with interest at the rate of 6% per annum from the date of petition till realisation. The claimant is entitled to enhanced compensation of Rs.3,33,320/(Rs.11,67,130/- minus Rs.8,33,810/-) with interest at the rate of 6% per annum from the date of petition till reliasation.

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HC-KAR

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13. In view of the above, the following

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ORDER

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i) The appeal is allowed in part.

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ii) The claimant is entitled to enhanced compensation of Rs.3,33,320/- with interest at the rate of 6% per annum from the date of petition till realisation.

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iii) Respondent No.3 -insurer shall deposit the enhanced compensation with interest before the Tribunal within a period of 06 weeks from this day, failing which it is liable to pay interest at the rate of 9% from this day till payment.

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iv) The claimant is not entitled to interest for the delay period of 122 days in filing the appeal.

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v) The claimant is entitled to release of entire enhanced compensation.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP

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List No.: 1 Sl No.: 43

Sridhara v. Vs Ghouse Khan

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Sridhara v. Vs Ghouse Khan

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