Karnataka High Court
Rasheed vs Venkatrao And Anr on 3 July, 2024
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NC: 2024:KHC-K:4540-DB
MFA No.202867 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3RD 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.202867 OF 2022 (MV-I)
BETWEEN:
RASHEED
S/O HASANSAB PINJAR,
AGED 27 YEARS,
OCC: TAILORING WORK (NOW NIL)
R/O: BATAGERA (B) TQ: SEDAM,
DIST: KALABURAGI.
...APPELLANT
(BY SMT. LAKSHMI G.E., ADVOCATE)
Digitally signed by AND:
BASALINGAPPA
SHIVARAJ
DHUTTARGAON
Location: HIGH
1. VENKATRAO
COURT OF S/O DEVARAO BIRADAR,
KARNATAKA
AGE: MAJOR,
OCC: BUSINESS,
R/O: CHIMKOD
TQ: AND DIST: BIDAR - 585 401.
2. THE GENERAL MANAGER
IFFCO-TOKIO GEN INSURANCE CO. LTD.,
THROUGH ITS BRANCH MANAGER,
G1, G2, G-12, G-13 ASIAN ARCADE
NEAR ANAND HOTEL
S.B. TEMPLE ROAD, KALABURAGI
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NC: 2024:KHC-K:4540-DB
MFA No.202867 of 2022
DIST: KALABURAGI - 585 102
INSURER OF CAR BEARING NO.KA-38-M-3046
TATA M INDIA VISTA VX CAR.
...RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R2;
V/O. DTD.10.07.2023 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS
OF THE LEARNED SENIOR CIVIL JUDGE AND M.A.C.T., SEDAM
IN M.V.C. NO.1202/2018 DATED 29.03.2022 AND ENHANCE
THE COMPENSATION AWARDED OF RS.15,73,950/- TO
RS.89,80,000/- WITH INTEREST AT 6% PER ANNUM FROM THE
DATE OF THE PETITION TILL THE DATE OF DISPOSAL.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/claimant being dissatisfied with the compensation awarded in MVC No.1202/2018 dated 29.03.2022 passed by the Senior Civil Judge & MACT, Sedam (for short, 'the Tribunal') seeking enhancement of compensation. -3-
NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022
2. Brief facts leading to rise filing of this appeal are as under:
That, on 10.11.2017 at about 9.00 a.m., when the petitioner and his brother's son by name, Akhil were proceeding on a motorcycle bearing No.KA-32/EF-0031 towards Batagera village on the left side of Sedam to Kodangal Road, in front of KEB Sub-Station near VCF Sedam, a Car bearing Reg.No.KA-38/M-3046 Tata M. Indica Vista Vx Car came from opposite direction with high speed and in a rash and negligent manner by its driver and dashed against the motorcycle of the petitioner, due to which the petitioner and Akhil fell down and sustained grievous injuries and there was damages to the motorcycle of the petitioner also. Thereafter, the petitioner was shifted to Govt. General Hospital, Sedam and later he was shifted to Yashoda Hospital, Hyderabad for better treatment. It is the case of the petitioner that he was aged 22 years and was working as a Tailor and earning Rs.30,000/- p.m. The petitioner was hale and healthy prior to the date of the accident. Due to accident, the petitioner -4- NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 suffered permanent disability and he could not do his job as he used to do earlier. Hence, the petitioner filed claim petition under Section 166 of M.V.Act claiming compensation.
3. The respondent No.1 filed written statement denying the age, occupation and income of the petitioner. It is contended that the driver of the offending vehicle was holding a valid and effective driving license as on the date of the accident. It is contended that the said vehicle was insured with the respondent No.2 and contended that the respondent No.1 is not liable to pay compensation to the petitioner and prays to dismiss the petition against respondent No.1.
4. The respondent No.2 filed written statement denying the averments made in the claim petition and contended that the driver of the offending vehicle was not possessing valid and effective driving license as on the date of the accident. Hence, the Insurance Company is not -5- NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 liable to pay compensation. Accordingly, prayed to dismiss the claim petition.
5. The Tribunal, on the basis of the pleadings of the parties framed relevant issues. The petitioner, in order to prove his case examined himself as PW.1 and in order to prove the disability examined the doctor as PW.3 and also got examined his employer as P.W.2. The respondent neither examined any witness nor produced any documents. The Tribunal, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, partly allowed the claim petition and ordered that the petitioner is entitled for compensation of Rs.15,73,950/-. It is held that the respondents are jointly and severally liable to pay compensation and further directed the respondent No.2- insurer to deposit the compensation amount within two months from the date of the order. The petitioner, aggrieved by the judgment and award, filed this appeal seeking enhancement of compensation. -6-
NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022
6. Heard the learned counsel for the petitioner and also learned counsel for respondent No.2-Insurance Company.
7. Learned counsel for the appellant/petitioner submits that, the petitioner in order to prove the disability examined the doctor as RW.3, who has issued the disability certificate as per Ex.P12 and opined that the petitioner has suffered disability to the extent of 42% to the whole body, which is on the lower side. She also contend that the compensation awarded under the other heads is also on the lower side. Hence, she submits that the impugned judgment passed by the Tribunal requires to be modified by enhancing the compensation. Accordingly, she prays to allow the appeal.
8. Per contra, learned counsel for the respondent No.2-Insurance Company supports the impugned judgment and award passed by the Tribunal and submits that the Tribunal was justified in assessing the disability at -7- NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 14% to the whole body, which does not call for any interference and the compensation granted under other heads are just and proper. Hence, on these grounds, she prays to dismiss the appeal.
9. Perused the records and considered the submissions of the learned counsel for the parties. The point that arises for our consideration is quantum.
10. It is not in dispute that, the petitioner met with an accident and sustained grievous injuries. In order to prove that the accident was occurred due to rash and negligent driving by the driver of the offending vehicle, the petitioner has produced the copy of certified copies of FIR and charge sheet which are marked at Exs.P1 and P3.
11. Insofar as quantum of compensation, the petitioner has contended that prior to the accident he was hale and healthy, aged about 23 years and he was doing tailoring work and earning Rs.30,000/-p.m. and in order to establish his income examined his employer as P.W.2, who -8- NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 deposed that the petitioner is a professional tailor in Sedam town and he is working in his shop since 08 years and he paying Rs.350/- per pair and was earning Rs.700/- per day. But in the cross-examination, P.W.2 admits that he has not obtained any permission from the Municipality for running tailoring shop and admits that he has not given any letter number about issuing Certificate marked at Ex.P.18. Further, P.W.2 admits that he used to pay salary by cash and he has not maintained any documents to that effect. Therefore, any amount of oral evidence led by the employer i.e. P.W.2 would not come into the aid of the petitioner as the oral evidence does not dispense with the production of documentary evidence. In the absence of proof of income, since the accident has taken place in the year 2017, the notional income has to be taken at Rs.10,250/- p.m. as per guidelines issued by the Karnataka State Legal Services Authority.
12. In order to prove the permanent disability of the petitioner has examined P.W.3, the doctor who has -9- NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 deposed before the Tribunal that he has clinically examined P.W.1 and after examining P.W.1 and after going through the medical records opined that the petitioner has suffered disability to the extent of 42% to the whole body wherein the Tribunal has taken disability at 14% to the whole body. Though P.W.2 is not a treating doctor, however taking note that he being expert in the medical field, issued disability certificate at Ex.P.12 after examining P.W.1 stating that petitioner has suffered grievous injuries and he has opined that the petitioner has suffered disability of 42% to the whole body. But the Tribunal has taken the disability at 14%, which is in our opinion is on the lower side. We re-assess the disability after taking into consideration the evidence of P.W.3 and medical records, at 20% to the whole body. The applicable multiplier to the age group of petitioner is '18'.
13. Thus, we re-assess the compensation under the following heads:
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NC: 2024:KHC-K:4540-DB
MFA No.202867 of 2022
Sl. Heads By Tribunal By this Court
No.
1. Towards pain and Rs.40,000/- Rs.75,000/-
sufferings
2. Towards loss of Rs.2,92,700/- Rs.4,42,800/-
future income
(Rs.10250/- x 12x
18x 20%)
3. Towards attendant Rs.10,500/- Rs.25,000/-
charges, food and
conveyance
4. Towards medical Rs.11,80,000/- Rs.11,80,000/-
expenses
5. Towards loss of Rs.30,750/- Rs.41,000/-
income during
treatment
6. Towards loss of Rs.20,000/- Rs.40,000/-
future amenities
Total Rs.15,73,950/- Rs.18,03,800/-
14. The petitioner is entitled for a total
compensation of Rs.18,03,800/- as against Rs.15,73,950/- awarded by the Tribunal. Hence, the petitioner is entitled for an enhanced compensation of Rs.2,29,850/- with interest @ 6% p.a.
15. In view of the above discussions, we proceed to pass the following:
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NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 ORDER
(a) The appeal is allowed in part.
(b) The impugned judgment and award dated 29.03.2022 passed by the Tribunal is modified.
(c) The petitioner is entitled for a total compensation of Rs.18,03,800/- as against Rs.15,73,950/- awarded by the Tribunal. Hence, the petitioner is entitled for an enhanced compensation of Rs.2,29,850/- along with interest at the rate of 6% per annum from the date of petition till realization.
(d) The respondent No.2-Insurance Company is directed to deposit the enhanced compensation amount before the tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment.
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NC: 2024:KHC-K:4540-DB MFA No.202867 of 2022 Learned counsel Sri Sudarshan M. is permitted to file vakalat for respondent No.2 within two weeks.
Sd/-
JUDGE Sd/-
JUDGE BL List No.: 1 Sl No.: 30 Ct;Vk