Karnataka High Court
Mohamad Ismail vs The Divisional Manager on 11 March, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 11TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA
MFA.CROB.734/2008
IN
M.F.A.NO.214/2008 (MV)
Between:
Mohamad Ismail,
S/o Bade Hussainsab,
Age: 47 years, occ: Ex-Conductor.
R/o Islampur,
Tq: Gangavathi.
Dist: Koppal. ... Appellant
(By Sri Chandrashekar P. Patil, Adv.)
AND:
1. The Divisional Manager,
National Insurance Co. Ltd.
Divisional Office,
Opp: Minividhan Sudha,
Gulbarga. Now represented by the
Regional Manager,
National Insurance Co. Ltd.
Regional Office, Subharam Complex.
No.144, M.G.Road,
Bangalore-1.
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2. Veeresh s/o Sanna Iranna,
Age: 35 years,
Occ: KSRTC Bus-driver.
R/o Karatagi Tq: Gangavati.
Dist: Koppal.
3. Y.Sudhir s/o Raghavendra Rao,
Age: Major. Occ:Bus owner.
R/o Munirabad dam.
Tq & dist: Koppal.
4. The Divisional Controller,
NEKRTC, Divisional Office,
Koppal.
5. The Managing Director,
NEKRTC, Gulbargal. ... Respondents
(By Sri Rajashekar S. Arani, Adv. for R.1,
Sri.F.S. Dabali, Adv.for R.4 and R.5,
Notice to R.2 and R.3 dispensed)
This MFA.Crob. is filed under Order 41 Rule 22 read
with Sec.173(1) of the Motor Vehicles Act, praying to
modify the judgment and award dated 5.10.2007 passed
by the Civil Judge (Sr.Dn) & MACT, Gangavati, in
MVC.289/2006, and etc.
This MFA.Crob. coming on for Admission this day,
the Court delivered the following:
JUDGMENT
This Cross Objection is by the claimant seeking enhancement of compensation awarded by the Tribunal. :3:
2. With the consent of learned Counsel appearing for the parties, the same is heard and disposed of finally.
3. The learned Counsel appearing for the insurer submits that the appeal filed by Insurer in MFA.214/2008 in which the present Cross Objection is filed, was heard and disposed of reserving liberty to the insurer to defend the Cross Objection regarding enhancement of compensation.
4. The said submission is not disputed by the learned Counsel appearing for the claimant-Cross Objector and it is placed on record.
5. There is no dispute between the parties regarding injuries sustained by the claimant in a road traffic accident that occurred on 16.08.2005 due to rash and negligent driving of the bus bearing Reg.No.KA- 37/3806 by its driver, and the liability of the insurer of the offending vehicle.
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6. It is a case of hired bus by the respondent- Corporation and in view of the judgment of the Apex Court In the case of UPSRTC vs. Kulsum, reported in 2011 ACJ 2145, the liability fastened by the Tribunal against the Insurer is in accordance with law. The only point that remains for consideration is:
Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it requires to be enhanced?
7. As per Ex.P.21- wound certificate, the claimant had sustained the following injuries:
i. Compound fracture of left femur. ii. Fracture of nasal bone-left middle wall of right orbit.
iii. Injury to right eye.
iv. Big wound over thigh.
PW.3- the doctor in his evidence has stated the disability suffered by the injured to the whole body at 40% and he has not stated the disability caused to each limb.
Considering two major fractures and one minor fracture :5: and other injuries sustained by the claimant, a sum of Rs.50,000/- is awarded towards pain and suffering.
8. As Rs.82,000/- awarded by the Tribunal towards medical expenses is as per medical bills produced by the claimant, the same is just and proper and there is no scope for enhancement.
9. Considering that the claimant was treated as inpatient for 72 days, a sum of Rs.25,000/- is awarded towards incidental expenses. In the absence of production of salary certificate, a sum of Rs.20,000/- is awarded towards loss of income during laid-up period and Rs.25,000/- is awarded towards loss of amenities.
10. Regarding loss of future income, the learned Counsel for claimant submits that the claimant after sustaining the above injuries has been demoted from the post of Conductor to the post of Peon and therefore there is reduction in his salary and he prays to award difference of salary towards loss of future income. Whereas, the :6: learned Counsel for the Insurer submits that except oral evidence of the claimant that he has been demoted from the post of Conductor to the post of Peon, the same is not substantiated by producing relevant documents or by examining the employer of the KSRTC.
11. There is force in the submission of the learned Counsel for the Insurer. Considering the nature of injuries sustained by the claimant which is evident from the photographs at Ex.P.23 and the amount of disability and unhappiness that he has to undergo in his future life, justice would be met if a sum of Rs.25,000/- is awarded towards loss of amenities due to permanent disability.
12. Thus, claimant is entitled to the compensation of Rs.2,12,000/-:
1. Pain and suffering : Rs. 50,000/-
2. Medical expenses : Rs. 82,000/-
3. Incidental expenses : Rs. 25,000/-
4. Loss of income during laid-up period. : Rs. 20,000/-
5. Loss of amenities due to permanent disability : Rs. 25,000/-
6. Future medical expenses : Rs. 10,000/-
Total : Rs.2,12,000/-:7:
Whereas, the compensation awarded by the Tribunal is Rs.3,00,000/-.
As the compensation awarded by the Tribunal is found to be more that what is determined herein above, there is no scope for enhancement.
Hence, the Cross Objection being devoid of merits is dismissed.
Sd/-
JUDGE .sub/-