Karnataka High Court
Kallappa Ramappa Waddar vs The Managing Director on 10 February, 2017
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 10TH DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.21970/2009
C/W
MFA NO.22635/2009 (MV)
MFA NO.21970/2009:
BETWEEN
KALLAPPA RAMAPPA WADDAR
AGE: 44 YEARS, OCC.NIL
R/O ANKALI, TQ CHIKKODI
DIST BELGAUM
... APPELLANT
(BY SRI. HARISH S MAIGUR, ADV.)
AND
1. THE MANAGING DIRECTOR
KSRTC, CENTRAL OFFICES DOUBLE ROAD
BANGALORE
2. THE GENERAL MANAGER
INTERNAL INSURANCE
FUND CENTRAL OFFICES KH DOUBLE ROAD
BANGALORE
3. SHARIFUDDIN ISMAILSAB BENNI,
AGE: 63 YEARS, OCC:KSRTC DRIIVER (RETD)
R/O KSRTC RAMDURG, TQ RAMDURG, DIST BELG
4. SHRI APPASAHEB
SUKUMAR CHOUGULE
AGE: 30 YEARS, OCC:AGRIL
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R/O SOUNDATTI, TALUK
RAIBAG, DIST BELGAUM
5. THE GENERAL MANAGER
NATIONAL INSURANCE CO LTD.
SIDDESHWAR CROSS, BIJAPUR
6. DASHRATH ANNAPPA SHINDE
AGE: 40 YEARS, OCC:NIL
R/O SOUNDATTI, TALUK RAIBAG
DIST BELGAUM
... RESPONDENTS
(BY SRI. MADANMOHAN M KANNUR, ADV. FOR R1 AND R2,
SRI. A.G.JADHAV, ADV. FOR R5,
R3, R4 AND R6 ARE SERVED,)
THIS MFA IS FILED UNER SECTION 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED
23/3/2009 PASSED IN MVC NO.1496/2000 ON THE FILE OF THE
PRL CIVIL JUDGE (SR.DN.) & MOTOR ACCIDENT CLAIMS
TRIBUNAL, BELGAUM, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
MFA NO.22635/2009:
BETWEEN
1. THE MANAGING DIRECTOR
K.S.R.T.C. CENTRAL OFFICES
K.H.DOUBLE ROAD, BANGALORE-560027
(OWNER OF BUS NO.KA-22/F-1069)
2. THE GENERAL MANAGER,
INTERNAL INSURANCE FUND CENTRAL OFFICES
K.H.DOUBLE ROAD, BANGALROE-560027
(INSURER OF ABOVE BUS) REP BY CHIEF LAW OFFICER,
NWKRTC GOKUL ROAD, HUBLI-580030
... APPELLANTS
(BY SRI. M.K.SOUDAGAR &
SRI. MADANMOHAN M KHANNUR, ADVS.)
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AND
1. SRI.KALLAPPA S/O RAMAPP WADDAR
AGE: 44 YEARS, OCC:MILKMAN AND CATTLE BROKER
R/O ANKALI, TAL CHIKODI-591201
DIST BELGAUM
2. SRI. APPASAHEB S/O SUKUMAR CHOUGULE
AGE MAJOR, (CORRECT AGE NOW KNWON)
OCC:AGRICULTURE, R/O SAUDATTI-591126,
TAL RAIBAG:DIST BELGAUM
(OWNER OF MOTOR CYCLE NO.KA-28/T-6037)
3. THE GENERAL MANAGER
NATIONAL INSURANCE CO, LTD.,
SIDDESHWAR CROSS ROAD
BIJAPUR-586101
(INSURER OF ABOVE V EHICLE)
4. SRI. DASHARATH S/O ANNAPPA SHINDE
AGE: 39 YEARS, OCC:NIL,
R/O SAUDATTI-691126
TAL RAIBAG, DIST BELGAUM
... RESPONDENTS
(BY SRI. RAVIRAJ C PATIL, ADV. FOR R1,
SRI. A.G.JADHAV, ADV. FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
M.V.ACT, AGAINST THE JUDGEMENT AND AWARD DATED
23.03.2009, PASSED IN MVC NO.1496/2000 ON THE FILE OF THE
PRL.CIVIL JUDGE (SR.DN) & MACT, BELGAUM, AWARDING
COMPENSATION OF RS.2,39,200/- ALONG WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Heard the learned counsel for the parties.
2. MFA No.21970/2009 is filed by the appellant/claimant seeking enhancement of the compensation.
3. MFA No.22635/2009 is filed by the Insurance Company to set aside the judgment and award passed by the Tribunal.
4. MFA No.21970/2009 is preferred by the claimant questioning the impugned judgment and award passed by the court below in MVC No.1496/2000 dated 23.03.2009.
5. The brief facts of the case are as under:
The claimant filed a petition before the Tribunal stating that on 13.05.2000 that himself and his friend had been to Yallamma temple. While returning to his village on a motorcycle bearing registration No.KA-28/T-6037, near Halaki cross, the KSRTC bus bearing No.KA-22/F-1069 came from Belgaum side in a high speed and in a rash and negligent manner and dashed to the said motorcycle and caused the accident. It is further stated :5: that the said bus driver did not swerve the vehicle to the other side by which he could have avoided the accident and therefore, the motorcycle was dragged to the opposite side of the road. As the claimant was pillion rider, sustained multiple injuries and the claimant was shifted to KLE Hospital Belgaum.
6. It is stated that the claimant was a milkman and cattle broker and was earning a sum of Rs.10,000/- per month and due to the accidental injuries, he is unable to earn his livelihood and his physical ability has also been diminished.
7. After issuance of the notice, the Insurance Company appeared and filed objections.
8. Based upon the pleadings, the Tribunal framed the following issues:
"[1] Whether the petitioner has proved that the accident in question is because of rash and negligent driving of the vehicle bearing registration no.KA-22/F-1069 by its driver?
[2] Whether the petitioner is entitled for compensation? If so, for what amount?:6:
[3] What order or award?"
9. The Tribunal answered the first issue as partly in the affirmative and the second issue as in the affirmative and as per the final order of the impugned judgment.
10. The learned counsel for the appellant during the course of his argument has contended that the judgment and award passed by the Court below are contrary to the law and facts which requires to be modified by re-appreciating the evidence on record. It is further contended that the Court below ought to have considered the medical bills produced by the claimant, which clearly disclose that the appellant has spent more than Rs.2,00,000/- towards medical expenses. The appellant was inpatient for more than 112 days and kept in ICU for some days and two operations were conducted. It is further contended that the Court below would have considered the evidence putforth by P.W.3, the Doctor that the claimant had sustained the disability to the extent of 50% in respect of lower limb. While awarding the compensation under the head of future earning capacity, the Tribunal has taken only disability to the extent of 15%. Taking :7: into the nature and occupation, the Court below ought to have taken 100% disability while awarding the compensation under the head of loss of future earning capacity.
11. It is further contended that the Court below erred in awarding compensation under the heard loss of future earning capacity that taking the income of the appellant at Rs.2,500/- per month only. The evidence on record which clearly reveals that the appellant is earning Rs.10,000/- per month. Therefore, the same requires to be modified by enhancing the compensation awarded by the Court below. It is further contended that the Court below ought to have awarded the compensation under the head of future operation. The appellant was inpatient for more than 112 days and two operations were conducted to his leg. The claimant stated that he requires Rs.50,000/- for future operation. Therefore, the learned counsel for the appellant/claimant seeks for enhancement of the compensation awarded by the Court below.
12. On the other hand, learned counsel for the Insurance Company defends the impugned judgment and award :8: passed by the Court below. It is contended by the learned counsel for the Insurance Company that the Tribunal erred in awarding exorbitant compensation and the income taken is on higher side. Therefore, it does not call for interference.
13. However, the Court below given a finding on issue No.2 that Ex.P-7 there were soft tissue injury to the left thigh and the x-ray showed fracture of femur and soft tissue swelling confined to left thigh and the x-ray taken showed fracture of left shaft of femur and fracture of left tibia. The claimant had sustained fracture of shaft of right tibia also. It is further seen that the claimant got himself examined as P.W.1 and other two witnesses as P.Ws.2 and 3. P.W.3, who being the Doctor treated the claimant at KLE Hospital and has stated that the petitioner sustained disability to the extent of 50% in the left lower limb and 15% in the right lower limb and has also stated that the petitioner is unable to squat, sit cross legged and unable to kneel, walk on sloppy surface and there is O.A. changes in the left knee joint and still there are implants. Therefore, P.W.3 contended that there is disability to the extent of 65%. But the Tribunal held the overall :9: functional disability of the claimant at 15% which is on lower side. Accordingly, the disability is to be held at 22%.
14. It is further stated that the claimant was fetching milk and was also doing cattle brokerage business and was earning a sum of Rs.10,000/-. But the Tribunal has taken the income of the claimant at Rs.3,500/- per month which is on lower side. However, as per the judgment of the Hon'ble Supreme Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, for the year 2000-01, the income to be taken as Rs.4,000/-. Accordingly, the income to be held at Rs.4,000/- per month instead of Rs.3,500/- per month.
15. Therefore, keeping in view of the contention as taken by the learned counsel for the claimant and also the learned counsel for the Insurance Company, interference is called for in the impugned judgment and award passed by the Court below under the head of loss of future income. However, considering the avocation of the claimant and also the disability stated by P.W.3, the Tribunal held that functional disability of the claimant at 15%. So far as the multiplier is concerned, as per the said : 10 : decision in the above said case, for the age group of 36 to 40, 15 multiplier is to be taken, as the claimant was aged 35 years at the time of the accident. Therefore, 15 multiplier has to be adopted. Accordingly, the loss of future income is worked out to as follows:
Rs.4,000 X 12 X 15 X 22% = Rs.1,58,400/-
16. Further, the Tribunal has awarded Rs.15,000/- under the head loss of amenities which is on lower side. As the claimant has fracture of both left and right tibia and femur definitely causes inconvenience to him in rest of his life. Therefore, this Court is of the opinion that the same should be enhanced from Rs.15,000/-
to Rs.30,000/- which is just and appropriate.
17. However, insofar as the other heads awarded by the Tribunal are concerned, is undisturbed. The claimant is entitled to the enhanced compensation as follows:
Sl.
Particulars Amount
No.
1 Pain and sufferings Rs.40,000/-
2 Loss of amenities Rs.30,000/-
3 Medical expenses Rs.65,000/-
4 Loss of income during treatment Rs.21,000/-
5 Loss of future income Rs.1,58,400/-
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6 Attendant charges and conveyance Rs.10,000/-
Total Rs.3,24,400/-
Less: Amount awarded by Tribunal Rs.2,39,200/-
Total Rs.85,200/-
In the result, I proceed to pass the following:
ORDER
i) MFA No.21970/2009 filed by the appellant/claimant is allowed in part. The appellant/claimant in this appeal is entitled to the enhanced compensation of Rs.85,200/-
with 6% per annum from the date of petition till deposit.
ii) In consequence upon the disposal of the MFA No.21970/2009, MFA No.22635/2009 stands dismissed.
However, it is made clear that the liability is fixed upon Corporation and the Insurance Company, who are respondent Nos.1 and 2 in MFA No.21970/2009.
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As per the submission, the amount in deposit shall be transmitted to the Court below forthwith.
Sd/-
JUDGE Rsh