Karnataka High Court
Smt Shaneena Begum vs Sri Venkatesh J on 6 March, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
-1-
NC: 2024:KHC:9488
MFA No. 108 of 2022
C/W MFA No. 12 of 2022
MFA No. 16 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.108 OF 2022 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.12 OF 2022 (MV-I)
MISCELLANEOUS FIRST APPEAL NO.16 OF 2022 (MV-I)
IN MFA NO.108/2022
BETWEEN:
1. SMT. SHANEENA BEGUM,
W/O. LATE NAYAZ PASHA,
AGED ABOUT 32 YEARS,
2. SRI. SHAHABAZ PASHA,
S/O. LATE NAYAZ PASHA,
AGED ABOUT 17 YEARS,
3. KUM. SADIYA TAJ,
D/O. LATE NAYAZ PASHA,
Digitally AGED ABOUT 16 YEARS,
signed by V
KRISHNA APPELLANT NOS.2 AND 3 ARE MINORS,
Location: REPRESENTED BY THEIR MOTHER
High Court of AS NATURAL GUARDIAN
Karnataka APPELLANT NO.1.
ALL ARE RESIDING AT
R/A NO.552, TASLEEMSHA DARGA,
SHAHINSHANAGARA,
KOLAR TOWN - 563 101,
KOLAR DISTRICT,
...APPELLANTS
(BY SRI. VISHWANATHA K., ADVOCATE)
AND:
-2-
NC: 2024:KHC:9488
MFA No. 108 of 2022
C/W MFA No. 12 of 2022
MFA No. 16 of 2022
1. SRI. VENKATESH J,
S/O. JAYAPPA,
AGED BY MAJOR,
R/A D.NO.1/19,
CHINNATHUR VILLAGE AND POST,
HOSUR TALUK,
KRISHNAGIRI DISTRICT,
TAMILNADU.
(OWNER OF CAR BEARING REG.
NO.TN-22-CB-7952)
2. UNITED INDIA INSURANCE COMPANY LTD.,
BAGALUR MANSION, 2ND FLOOR,
DODDAPET, KOLAR - 563 101,
SUGUNA NURSING HOME COMPLEX
ANTHARAGANGE ROAD,
NEAR KSRTC BUS STAND, KOLAR.
(INSURER OF THE CAR BEARING
REG NO.TN-22-CB-7952)
(POLICY NO.1710003120P100303364
PERIOD OF INSURANCE 04-04-2020 TO 04-04-2021)
...RESPONDENTS
(BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R2;
VIDE ORDER DATED 24.02.2023, NOTICE TO
R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.09.2021 PASSED IN MVC
NO.24/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, MACT, KOLAR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.12/2022
BETWEEN:
-3-
NC: 2024:KHC:9488
MFA No. 108 of 2022
C/W MFA No. 12 of 2022
MFA No. 16 of 2022
SRI. YASIN PASHA,
AGED ABOUT 36 YEARS,
S/O LATE KALEEMULLA,
R/AT KHUTHUB SHAHINSHANAGAR,
NEAR RAILWAY TRACK, KOLAR - 563 101.
...APPELLANT
(BY SRI. VISHWANATHA K., ADVOCATE)
AND:
1. SRI. VENKATESH J,
S/O. JAYAPPA,
AGED BY MAJOR,
R/A D.NO.1/19,
CHINNATHUR VILLAGE AND POST,
HOSUR TALUK,
KRISHNAGIRI DISTRICT,
TAMILNADU.
(OWNER OF CAR BEARING REG
NO.TN-22-CB-7952)
2. UNITED INDIA INSURANCE COMPANY LTD.,
BAGALUR MANSION, 2ND FLOOR,
DODDAPET, KOLAR - 563 101.
(INSURER OF THE CAR BEARING
REG NO.TN-22-CB-7952)
(POLICY NO.1710003120P100303364
PERIOD OF INSURANCE 04-04-2020 TO 04-04-2021)
...RESPONDENTS
(BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R2;
VIDE ORDER DATED 06.03.2023, NOTICE TO
R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED.06.09.2021 PASSED IN MVC
NO.02/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, KOLAR, PARTLY ALLOWING THE CLAIM
-4-
NC: 2024:KHC:9488
MFA No. 108 of 2022
C/W MFA No. 12 of 2022
MFA No. 16 of 2022
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.16/2022
BETWEEN:
SRI. IMRAN PASHA,
AGED ABOUT 31 YEARS,
S/O. LATE KALEEMULLA,
R/AT KHUTHUB SHAHINSHANAGAR,
NEAR RAILWAY TRACK,
KOLAR - 563 101.
...APPELLANT
(BY SRI. VISHWANATHA K., ADVOCATE)
AND:
1. SRI. VENKATESH J,
S/O. JAYAPPA,
AGED BY MAJOR,
R/A D.NO.1/19,
CHINNATHUR VILLAGE AND POST,
HOSUR TALUK,
KRISHNAGIRI DISTRICT,
TAMILNADU.
(OWNER OF CAR BEARING REG
NO.TN-22-CB-7952)
2. UNITED INDIA INSURANCE COMPANY LTD.,
BAGALUR MANSION, 2ND FLOOR,
DODDAPET, KOLAR - 563 101.
(INSURER OF THE CAR BEARING
REG NO.TN-22-CB-7952)
(POLICY NO.1710003120P100303364
PERIOD OF INSURANCE 04-04-2020 TO 04-04-2021)
...RESPONDENTS
(BY SMT. MANJULA N. TEJASWI, ADVOCATE FOR R2;
VIDE ORDER DATED 28.02.2023, NOTICE TO
R1 IS DISPENSED WITH)
-5-
NC: 2024:KHC:9488
MFA No. 108 of 2022
C/W MFA No. 12 of 2022
MFA No. 16 of 2022
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED.06.09.2021 PASSED IN MVC
NO.01/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, KOLAR, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are preferred by the claimants challenging the judgment and award dated 06.09.2021 passed by the II Additional District and Sessions Court and Additional MACT at Kolar, (for short 'the Tribunal') in MVC No.24/2021. These appeals are founded on the premise of inadequacy of compensation. Hence, the appellants seek enhancement of compensation.
2. Parties to the appeal shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are as under;
The claimants in each of this cases along with one Sri.Nayaz Pasha went to attend the marriage at Thirumala -6- NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 Kalyana Mantapa, Malur Town, Kolar District on 09.12.2020 after attending a marriage they were returning in an auto bearing Reg.No.KA-05-D-9053 proceeding to Kolarand when the auto reached near Kolar-Malur Agrahara Hosahalli Gate Malur Taluk, at that time one Hundai Car bearing reg.No.KA.TN-22-CB-7952 came in a rash and negligent manner in high speed and dashed against the said Auto. Due to the said impact, inmates seated in the Auto sustained grievous injuries they were shifted to R.L.Jallappa Hospital, Kolar and then to Sanjay Gandhi Institute of Trauma and Orthopedics, Bengaluru for better treatment. They incurred financial expenditures towards, medical and other treatments. One Sri.Nayaz Pasha was shifted to R.L.Jallappa Hospital Kolar thereafter he was shifted to Mahaveer Jain Hospital, Bengaluru and from there to Vaidehi Hospital, Bengaluru and again he was shifted to R.L.Jallappa Hospital, Kolar despite best treatment he succumbed to the injuries.
3.1. The Injured claimants, the dependants and legal representatives of deceased Sri.Nayaz Pasha filed -7- NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 separate claim petition seeking compensation against the respondents.
3.2. In order to substantiate the issues and to establish the case, claimants were examined as PW.1, PW.2, PW.3, PW.4, PW.5 and PW.6 and got marked documents as Exs.P1 to P25. On other hand respondents are not examined and not marked any documents.
4. Respondent No.1 before the Tribunal did not appear he was placed ex-parte. Respondent No.2 - Insurance Company filed detail statement of objections, denied the claim of the claimant including age, avocation, income and the negligence attributed against the driver of the Car and pleaded that the accident occurred due to negligent driving by the driver of the Auto rikshaw who was made party in the present claim petition. Hence, sought for dismissal of the claim petition.
5. The Tribunal framed issues for consideration the claim petition. The petitioners were involved in common accident. Claimants were examined as PW.3, PW.5 and -8- NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 PW.6 and Exs.P1 to P25 came to be marked. Respondents adduced evidence of RW.1. Doctor was examined on behalf claimant as PW.4.
6. On the basis of material evidence placed on record. Tribunal awarded total compensation of Rs.17,22,000/- in MVC.No.24/2021 along with MVC.No.116/2021 filed by the mother of deceased. The Tribunal awarded Rs.1,00,000/- in MVC.No.2/2021, and awarded Rs.7,50,000/- in MVC.No.1/2021 with interest at 9% in all three cases.
7. Being aggrieved by the meager compensation amount awarded by the tribunal, the claimants are before this Court seeking enhancement of compensation.
8. The main contention of the learned counsel for the claimants is that the Tribunal has committed an error in awarding meager compensation, which calls for interference at the hands of this Court. Accordingly, he seeks enhancement of compensation.
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022
9. Per contra, learned counsel for respondent - Insurance Company submits that the Tribunal has rightly awarded just and reasonable compensation, which does not call for interference. Therefore, on these grounds, he seeks to dismiss the appeal.
10. Having heard learned counsel for claimants and learned counsel for respondent - Insurance Company and perused the impugned judgment and award. On careful perusal of Exs.P1 to P25. The materials on record, impugned judgment and award the submission of learned counsel for both parties. It is vehement contention of the learned counsel for claimant that the compensation awarded by the Tribunal is lower side; income assessed is on the lower side. The deduction taken by the Tribunal towards personal and living expenses of 1/4th is on the lower side which requires to be modified and other heads also he contends that the Tribunal has awarded meager compensation which requires to be enhanced. It is also contended that future prospectus has not been awarded in the injury case in MVC.No.1/2021 wherein the sustained
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 the disability to an extent of 29%. On these grounds claimants are seeks to allow the appeal and consequently enhance the compensation in all the cases.
11. Per contra, learned counsel for Smt.Manjula N.Tejaswi, learned counsel representing Insurance Company vehemently contends that the judgment and award passed by the tribunal is appropriate and is not arbitrary and the same is sustainable, considering the materials placed on record and the opinion expressed by the Doctor, the tribunal has awarded just and reasonable compensation taking into consideration the magnitude of the injuries suffered and so also in the death case reasonable compensation has been awarded. She further contends that the question of awarding future prospects in the case of injuries suffered in MVC.No.1/2021 would not arise for the reason that the Doctor PW.4 has deposed on oath the disability to a particular limb and has not expressed disability to the whole body and it is not the case of the claimant that he would not be able to any job for awarding future prospects. It is also contends that the
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 interest awarded by the tribunal is on the higher side and the same requires to be reduced. On these grounds, seeks to dismiss the appeal preferred by the claimants.
12. Having heard the learned counsel for appellants
- claimants and learned counsel for respondent - Insurance Company, perused the impugned judgment and award, it is seen that the claimant have produced the documents as Exs.P1 to P25, out of which, Exs.P1 to P7 are the Police records, which clearly depict the filing of FIR and charge sheet against the driver. Hence, negligence is rightly attributed against the driver of the offending vehicle, Exs.P8 to P25 are the medical records, prescriptions, certificates and hospital records and connected incidental expenditures incurred by the claimants in each of the cases.
13. Now coming to the aspect of age, avocation and income in each of the cases, it is necessary to assess the income before deciding the compensation under other heads. In all the cases, the tribunal has assessed income at Rs.10,000/- per month for occurrence of accident for
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 the year 2020, the notional income prescribed by the Legal Services Authority Chart, is Rs.14,500/- per month. Hence, income is taken at Rs.14,500/- per month in all the cases. Now let me examine the amount of compensation to be awarded in each of the cases firstly in MVC.No.24/2021 it is the case of death of one Sri. Nayaz Pasha claimants have preferred claim petition which is filed by the widow and two minor children of deceased Sri.Nayaz Pasha along with another claim petition filed separately by the mother in MVC.No.116/2021 in which the widow, minor two children has made respondents, the Tribunal has disposed of the matter together therefore I take up this matter first. Deceased Sri.Nayaz Pasha was aged 42 years it is stated that he was working as a tailor. However, no documentary proof of income is placed by the claimants that he was earning Rs.30,000/- per month as earlier stated tribunal assessed income at Rs.10,000/- per month notional income chart prescribes Rs.14,500/- per month, income is taken as Rs.14,500/- per month. Future prospects has been awarded at 25% and the deduction
- 13 -
NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 towards personal and living expenses arrived at 1/3rd requires to be taken at 1/4th including the mother in the other petition in MVC.No.116/2021.
14. Therefore loss of dependency in this case would be (Rs.13,594/- x 12 x 14 = Rs.22,83,792/-) Rs.22,83,792/- is awarded under this head as against Rs.14,00,122/- awarded by the Tribunal.
15. The tribunal awarded Rs.25,000/- towards loss of consortium and Rs.25,000/- towards loss of love and affection, which is on the lower side. As there are four dependents, each would be entitled to a sum of Rs.40,000/- as per the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases 680. Therefore, under the head of loss of consortium, the claimants are entitled for Rs.1,60,000/- (Rs.40,000/- x 4) along with 10% escalation towards one block period, which would be Rs.1,76,000/- (Rs.1,60,000/- + 10%).
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022
16. The tribunal awarded Rs.20,000/- towards loss of estate and Rs.10,000/- towards funeral obsequies including transportation of the dead body, in all, Rs.30,000/-, which do not call for interference. However, as per the aforesaid decision, 10% escalation for one block period on the same requires to be awarded under this head, which would come to Rs.33,000/- (Rs.30,000/- + 10%).
17. The tribunal awarded Rs.2,44,000/- towards medical expenses, which does not call for interference and the same is retained.
18. In view of the above, the claimants would be entitled to a total compensation of Rs.27,36,792/- as against Rs.17,22,000/- as mentioned in the table below:
Heads Amount in Rs.
Loss of dependency 22,83,792-00
Loss of consortium 1,76,000-00
Loss of estate and funeral 33,000-00
expenses
Medical expenses 2,44,000-00
TOTAL 27,36,792-00
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NC: 2024:KHC:9488
MFA No. 108 of 2022
C/W MFA No. 12 of 2022
MFA No. 16 of 2022
19. In MVC No.2/2021, the tribunal has awarded a global compensation of Rs.1,00,000/-.
20. Having heard the learned counsel for appellant as well as the learned counsel for Insurance Company, I do not find any need for enhancement in this case. However, a global enhancement of Rs.20,000/- would be reasonable in this case, in all Rs.1,20,000/- is awarded.
21. In MVC No.1/2021, it is seen that the claimant has suffered three injuries i.e., Compound fracture both bones of left leg with Bimalleolar fracture of left ankle, Traumatic amputation of the right ring finger and Promximal Phalanyx of left finger. PW.4-Doctor has opined the disability to an extent of 29% to the left lower limb, whereas, the tribunal has assessed the functional disability at 29% to the whole body after consideration of the amputation of the right ring finger, which does not call for interference and the same is retained.
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022
22. It is stated that age of the claimant was 30 years as on the date of occurrence of accident. The tribunal has rightly applied the multiplier at '17' and the tribunal taken the income of Rs.14,500/- per month, which do not call for interference and the same are retained. Therefore, the loss of future income due to disability would be Rs.8,57,820/- (Rs.14,500/- x 12 x 17 x 29%) as against Rs.5,91,000/- awarded by the tribunal.
23. Towards medical expenses, Rs.68,000/- is awarded by the tribunal on the basis of actual bills produced by the claimant, which does not call for interference and the same is retained.
24. The tribunal awarded Rs.25,000/- towards pain and suffering. However, this Court deems it appropriate to award a sum of Rs.1,50,000/- under this head. Taking into consideration that the future prospects may not be applicable due to the opinion expressed by PW.4-Doctor. However, the fact remains that the claimant has suffered severe injuries to his left leg and there is deformity which
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 would probably affect the working capacity of the claimant to the some extent.
25. The tribunal awarded Rs.8,600/- towards attendant charges and Rs.15,000/- towards food and nourishment, in all, Rs.23,600/-. However, the claimant was inpatient for 43 days. Therefore, this Court deems it appropriate to award Rs.43,000/- under these heads.
26. The tribunal awarded Rs.18,000/- towards loss of income during laid up period. In view of enhancement of the income by this Court to Rs.14,500/- per month, the claimant would require atleast five months period to recuperate and to get back to his normal day to day activities. Therefore, claimant would be entitled to Rs.72,500/- (Rs.14,500/- x 5) under the head loss of income during laid up period.
27. The tribunal has not awarded any compensation towards loss of amenities. Considering the magnitude of the injuries suffered including the amputation of the right
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 ring finger and the disability to an extent of 29% to the left lower limb, this Court deems it appropriate to award a sum of Rs.1,00,000/- towards loss of amenities.
28. The tribunal awarded Rs.25,000/- towards further surgery, which does not call for interference and the same is retained.
29. In view of the above, the claimant would be entitled to a total compensation of Rs.13,16,320/- as against Rs.7,50,000/- as mentioned in the table below:
Heads Amount in Rs.
Loss of future income due to disability 8,57,820-00
Medical expenses 68,000-00
Pain and suffering 1,50,000-00
Attendant charges, food and 43,000-00
nourishment
Loss of income during laid up period 72,500-00
Further surgery 25,000-00
Loss of amenities 1,00,000-00
TOTAL 13,16,320-00
30. Accordingly, I pass the following:
ORDER i. The appeals are allowed-in-part;
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 ii. The judgment and award dated 06.09.2021 passed by II Additional District and Sessions Court and Additional MACT, Kolar in MVC.Nos.24/2021, 1/2021 and 2/2021 is modified;
iii. The claimant would be entitled to a sum of Rs.27,36,792/- as against Rs.17,22,000/- in MFA No.108/2022 (MVC No.24/2021);
iv. The claimant would be entitled to a sum of Rs.1,20,000/- as against Rs1,00,000/- in MFA No.12/2022 (MVC No.2/2021);
v. The claimant would be entitled to a sum of Rs.13,16,320/- as against Rs7,50,000/- in MFA No.16/2022 (MVC No.1/2021);
vi. The interest awarded by the tribunal at the rate of 9% per annum on the compensation amount of Rs.17,22,000/-, Rs.1,00,000/- and Rs.7,50,000/- respectively is left undisturbed. The enhanced compensation shall carry interest at the rate of 6% per annum in all the appeals;
vii. The compensation amount shall be released in favour of the appellants-claimants, upon proper verification;
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NC: 2024:KHC:9488 MFA No. 108 of 2022 C/W MFA No. 12 of 2022 MFA No. 16 of 2022 viii. The ratio of proportionate compensation awarded by the tribunal to each of the claimants in MVC Nos.24/2021 and 116/2021 as stipulated by the tribunal stands intact;
ix. All other terms and conditions stipulated by the tribunal shall stand intact.
Sd/-
JUDGE TIN - Para Nos.1 to 13 CPN - Para Nos.14 to 30