Karnataka High Court
Shrishail vs Muragesh And Anr on 2 July, 2024
-1-
NC: 2024:KHC-K:4463-DB
MFA No. 201473 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
MISCL. FIRST APPEAL NO. 201473 OF 2021 (MV-I)
BETWEEN:
SHRISHAIL
S/O MALLAPPA BHAIRASHETTI,
AGE: 29 YEARS, OCC:AGRICULTURE,
GRADUATE PERSON,ATTENDING COACHING
CLASSES OF KPSC AND UPSC EXAMS,
R/O DOMANAL, TQ AND DIST.VIJAYAPURA,
DUE TO HEAD INJURY, UNABLE TO UNDERSTAND
WORDLY AFFAIRS AND MOVE FROM THE BED,
PRESENTED BY HIS GUARDIAN MOTHER
SMT. SUSHILABAI
Digitally signed by W/O MALLAPPA BHAIRASHETTY,
BASALINGAPPA
SHIVARAJ AGE: 54 YEARS, OCC.H.H.WORK,
DHUTTARGAON R/O DOMANAL, TQ AND DIST.VIJAYAPURA- 586 103.
Location: HIGH
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. MURAGESH
S/O YALAGURI PATTANSHETTI,
AGE: 39 YEARS, OCC: BUSINESS,
R/O H.NO.112, GANGA NILAYA
VIDHYA NAGAR, OPP.BLDEA HOSPITAL,
VIJAYAPURA - 586 101.
(OWNER OF CAR NO.KA-28/M-9969)
-2-
NC: 2024:KHC-K:4463-DB
MFA No. 201473 of 2021
2. THE CHIEF EXECUTIVE OFFICER
THE BHARTI AXA GENERAL
INSURANCE COMPANY LIMITED,
1ST FLOOR, FERNS ICON,
SURVEY NO.28, DODDANAKUNDI VILLAGE,
K.R.PURAM HOBLI, BANGALORE-560 037.
...RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 10.06.2021
PASSED IN MVC NO.325/2017 ON THE FILE OF THE COURT OF
THE IV ADDL. DISTRICT AND SESSIONS JUDGE AND MEMBER
MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA AT
VIJAYAPURA. AND ALLOW THIS APPEAL TO GRANT THE
COMPENSATION AMOUNT BY RS.84,35,922/- ONLY AS
CLAIMED BY THE APPELLANT BEFORE THIS HON'BLE Court. IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This miscellaneous first appeal is filed by the petitioner challenging the judgment and award dated 10.06.2021 passed in MVC No.325/2017 by the IV Addl. -3-
NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 District and Sessions and MACT-XIII, Vijayapura, (hereinafter referred to as 'the Tribunal', for short).
2. For the sake of convenience, parties are referred to as per their ranking before the Claims Tribunal. Appellant is the petitioner and the respondents are the respondents.
3. The facts giving rise to filing of this appeal briefly stated are that, on 28.12.2016 at about 7.30 a.m., the petitioner was proceeding on a motorcycle bearing registration No.KA-28/EJ-9888. At that time, the respondent No.1 being the driver of car bearing registration No.KA-28/M-9969 came from Solapur side with a high speed in a rash and negligent manner and dashed to the motorcycle of the petitioner by causing accident. Due to the said accident, the petitioner sustained grievous injuries and the accident was occurred due to rash and negligent driving by the driver of the offending vehicle. The petitioner has spent huge amount towards medical expenses. The petitioner is aged about 25 years -4- NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 and working as self-employee and earning monthly income of Rs.15,000/- per month. After the accident, the petitioner could not able to do work as he was doing before the accident. Hence, the petitioner filed claim petition under Section 166 of M.V. Act seeking compensation of Rs.86,90,000/- with interest @ 18% p.a. for having sustained injuries in the road traffic accident and accordingly prays to allow the claim petition.
4. Respondent No.1 filed the written statement denying the averments made in the claim petition. It is contended that, the vehicle was insured with the respondent No.2, at the time of accident policy was also valid. In case the compensation is awarded the respondent No.2 is liable to indemnify the respondent No.1 and prayed to dismiss the claim petition against respondent No.1.
5. Respondent No.2 filed the written statement denying the averments made in the claim petition and contended that the driver was not possessing the valid and -5- NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 effective driving license as on the date of accident. Hence, respondent No.1 had violated the terms of insurance policy. Respondent No.2 is not liable to pay the compensation and prayed to dismiss the claim petition.
6. The Tribunal on the basis of rival pleadings of the parties framed the issues for its consideration.
7. In order to substantiate the case, petitioner got examined PW.1 to 4 and got marked 20 documents as Exs.P1 to 20. The respondents did not examine any witnesses. The respondent No.2 got marked insurance policy as Ex.R1, but has not led any oral evidence.
8. The Tribunal, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence answered issue Nos.1 and 3 in the affirmative, issue No.2 in the negative, issue No.4 as per the final order. The Tribunal allowed the claim petition in part with costs. It is ordered that the petitioner is entitled for compensation of Rs.2,54,078/- with interest @ 6% p.a. -6- NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 from the date of petition till its realization and held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation to the petitioner. Respondent No.2 was directed to deposit the entire compensation amount with accrued interest within 30 days from the date of judgment.
9. Being dissatisfied with the compensation awarded by the Tribunal, the petitioner has filed the present appeal seeking enhancement of the compensation amount.
10. We have heard the learned counsel for the petitioner and also learned counsel for respondent No.2- Insurance Company.
11. Learned counsel for the petitioner submits that, the petitioner has suffered permanent disability and in order to establish that the petitioner has suffered permanent disability examined a doctor as PW.3, who has opined that the petitioner has suffered permanent -7- NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 disability of 80%, wherein the Tribunal has discarded the evidence of PW.3 only on the ground that he is not a treated doctor. He also submits that the Tribunal has failed to award the compensation under the heads of future medical expenses, marriage prospects etc. Hence, on these grounds, he prays to allow the appeal.
12. Per contra, the learned counsel for the respondent No.2/Insurance Company supports the judgment and award passed by the Tribunal, contending that the compensation awarded by the tribunal is just and proper and same does not call for any interference. Hence, prays to dismiss the appeal.
13. We have perused the records and considered the submissions made by the learned counsel for the parties. The point that arises for our consideration is in regard to quantum of compensation.
14. It is not in dispute that, the petitioner met with an accident and suffered multiple injuries. In order to -8- NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 establish that the accident was occurred due to rash and negligent riding of the driver of the offending vehicle, the petitioner has produced the copy of FIR marked as Ex.P4, and certified copy of the charge sheet marked as Ex.P9. From the perusal of Ex.P9, it discloses that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle and the Tribunal was justified in recording the finding that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle.
15. Insofar Assessment of Disability: Though it is the case of the petitioner that the petitioner has suffered several multiple injuries, in order to establish that he has suffered permanent disability, he has examined a doctor as PW.3, who has issued a disability certificate marked as Ex.P20. PW.3 has examined the petitioner on 31.10.2018 for his permanent physical disability. He has clinically examined the petitioner and calculated the permanent physical disability as follows: -9-
NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 Sl.No. Disability Disability rate
1. Altered sensorium 100% of Neurological
2. Bladder disability i.e. 75% of Neurological incontinence severe
3. Motor system disability 75% of Neurological Paraparesis right side
4. Post head injury and its 50% of Neurological epileptics Moderate
5. Ataxia Moderate 50% of Neurological
16. According to the book called a manual for doctors to evaluate permanent physical disability by B.P.Yadav and S.K.Verma. Therefore, he has opined that total disability is , a= Higher value, b= lower value = 100% Neurological and further he is of the opinion that petitioner has suffered permanent disability of 80%.
17. The tribunal has considered the evidence of PW.3 and disability certificate issued to him as per Ex.P20.
PW.3 is the doctor, though he may not a treated doctor, he is an expert in the medical field and he has opined that petitioner has suffered permanent disability of 80% to the
- 10 -
NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 whole body. The Tribunal ought to have assessed the permanent disability. The Tribunal without assessing any permanent disability has declined to grant compensation under the head of loss of future income. Considering the evidence of PW.3 and Ex.P20, we assess the disability at 40% to the whole body.
18. Insofar as Quantum of Compensation:
It is the case of the petitioner that petitioner was aged about 25 years as on the date of accident and he was an agriculturist and getting income of Rs.1,5000/- p.m. In order to substantiate the case of the petitioner, the petitioner has not produced any income proof and in the absence of income proof, we assess the notional income as per the guidelines issued by the Karnataka Legal Services Authority. The accident is of the year 2016, we assess the notional income at Rs.8,750/- p.m. As we have already assessed disability, permanent disability at 40% and petitioner was aged about 25 years as on the date of accident. The multiplier applicable to the age group of the
- 11 -
NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 petitioner is '17'. Considering the monthly income of the petitioner at Rs.8,750/- and the other factors as stated supra, the petitioner is entitled for compensation of Rs.7,14,000/- (Rs.8,750/- x 12 x 17 x 40%) on account of 'loss of future income'.
19. Thus, considering the evidence of PW.3 and Ex.P9 and 20, we have re-assessed the compensation under the following different heads:
Sl.No. Heads By this Court
1. Pain and suffering 1,00,000/-
2. Towards loss of amenities 75,000/-
3. Towards attendant, charge, 50,000/-
diet and nourishment.
4. Towards medical expenses
(maintained as it is awarded 1,09,078/-
by the Tribunal)
5. Loss of future income on
account of permanent 7,14,000/-
disability
6. Future medical expenses 30,000/-
7. Towards loss of income
during the period of 26,250/-
treatment (8750 X 3)
8. Marriage prospects 1,00,000/-
Total 12,04,328/-
- 12 -
NC: 2024:KHC-K:4463-DB
MFA No. 201473 of 2021
20. The petitioner is entitled for a total
compensation of Rs.12,04,328/- as against Rs.2,54,078/- awarded by the tribunal. Hence, the petitioner is entitled for an enhanced compensation of Rs.9,50,250/- with interest @ 6% p.a.
21. Hence, we proceed to pass the following:
ORDER
(a) The appeal is allowed in part.
(b) The impugned judgment and award passed by the Tribunal is modified.
(c) The petitioner is entitled for a total compensation of Rs. 12,04,328/- as against Rs.2,54,078/- awarded by the tribunal. The petitioner is entitled for an enhanced compensation of Rs.9,50,250/- with interest @ 6% p.a. from the date of petition till its realization.
(d) The respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount with accrued interest
- 13 -
NC: 2024:KHC-K:4463-DB MFA No. 201473 of 2021 before the tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment.
(e) The registry is directed to transmit the trial court records to the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE MSR,SKS List No.: 1 Sl No.: 11 CT;BN