Karnataka High Court
Ramesh S/O Shivaji Jadhav vs Narayan And Anr on 3 July, 2024
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NC: 2024:KHC-K:4560-DB
MFA No. 201692 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. 201692 OF 2022 (MV-I)
BETWEEN:
RAMESH S/O SHIVAJI JADHAV
AGE: 36 YEARS, OCC: BUSINESS,
R/O CHAUHAN WADI, VELAPUR,
TQ: MALSHIRAS, DIST. SOLAPUR -413 113.
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
Digitally signed by 1. NARAYAN
BASALINGAPPA
SHIVARAJ S/O BHAU SARGAR,
DHUTTARGAON AGE: 46 YEARS, OCC:BUSINESS,
Location: HIGH
COURT OF R/O KOLA, TALUK: SANGOLA,
KARNATAKA DISTRICT: SOLAPUR -413 314,
STATE: MAHARASHTRA.
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE CO.LTD,
HANAMSHETTY BUILDING,
GURUKUL ROAD, VIJAYAPURA -586 101.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 201692 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
ALLOW THIS APPEAL AND ENHANCE THE COMPENSATION AS
CLAIMED IN THE CLAIM PETITION BY MODIFYING THE
JUDGMENT AND AWARD DATED 29.07.2021 PASSED BY THE
COURT OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND MEMBER, MACT-IV, AT VIJAYAPURA, IN M.V.C
NO.23/2017, 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 appellant under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being dissatisfied with the judgment and award dated 29.07.2021 passed in MVC No.23/2017 by the Court of III Addl. District and Sessions Judge and Member, MACT-IV, 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.
3. The facts giving rise to the filing of the appeal briefly stated are that, on 08.11.2016 at 7.30 p.m., near the house of Shahaji Anand More, Velapur on Velapur- -3-
NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 Sangola Road, the petitioner was driving the TaTa Ace Vehicle bearing registration No.MH-10/AQ-3822 from the side of Sangola towards Velapur, at that time, a Eicher Tempo bearing registration No.MH-45/5354 came from opposite direction with a high speed in a rash and negligent manner and dashed to the TaTa Ace by causing accident. Due to the said impact, the petitioner has sustained grievous multiple injuries. The petitioner was doing business and getting monthly income of Rs.20,000/- per month. Due to the accidental injuries, he became permanent disable. Hence, the petitioner filed a claim petition under Section 166 of M.V.Act, seeking compensation on the ground of injuries sustained in the road traffic accident.
4. After service of notice, respondent Nos.1 and 2 appeared and filed written statement denying the contents of claim petition contending that the tribunal has no jurisdiction to entertain the claim petition and it is contended that the driver of the offending vehicle was not possessing valid and effective driving license as on the -4- NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 date of the accident and there is violation of policy conditions. Respondent No.2 is not liable to pay compensation as demanded by the petitioner. Hence, prayed to dismiss the claim petition.
5. On the basis of pleadings, the Tribunal framed relevant issues for consideration.
6. There is another claim petition filed by other petitioner and both are clubbed together and allowed common evidence. In order to substantiate his case, petitioner in this case got examined himself as PW.1 and also examined one doctor as PW.2 and got marked documents as Exs.P1 to P15. On the other hand, respondents have not led any evidence but got marked the policy as Ex.R1.
7. The Tribunal, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence answered issue Nos.1 and 4 in the affirmative, issue Nos.2 and 3 in the negative and issued No.5 as per final order and allowed the petition in part with costs and it is ordered that, the petitioner is entitled for -5- NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 compensation of Rs.2,73,927/- with interest @ 6% p.a. from the date of petition till realization of compensation amount and directed the respondent No.2 to deposit the compensation amount within 30 days from the date of judgment. The petitioner, being dissatisfied with compensation awarded by the tribunal has filed the present appeal seeking for enhancement of compensation amount.
8. Heard the learned counsel for petitioner and learned counsel for respondent-Insurance Company.
9. Learned counsel for the appellant/petitioner submits that, the tribunal has erred in assessing the disability at 10% only which is on the lower side. Further he submits that in order to prove the disability, the petitioner examined the doctor as PW.2 who has issued the disability certificate and he deposed that the petitioner suffered disability in relation to right lower limb is 34% to 36%. He submits that the tribunal has erred in assessing the permanent disability at 10% only. He also submits that the compensation awarded under other heads is on lower -6- NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 side. Hence, on these grounds he prays to allow the appeal.
10. Per contra, the learned counsel for the respondent/Insurance Company supports the judgment and award passed by the tribunal contending that the same does not call for any interference. Hence, on this ground he prays to dismiss the appeal.
11. Perused the records and considered the submission made by the learned counsel for the parties. The only point that arises for our consideration is with regard to quantum.
12. There is no dispute that the petitioner met with an accident and sustained injuries and further in order to prove that the accident has occurred due to the rash and negligent driving by the driver of the offending vehicle, the petitioner has produced Ex.P1, the certified copy of FIR and Ex.P7, the certified copy of charge sheet, which discloses that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. The -7- NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 tribunal was justified in recording a finding that the accident was occurred due to rash and negligent driving by the driver of the offending vehicle.
13. Insofar as quantum of compensation is concerned, the petitioner has contended that prior to the accident he was hale and healthy, aged about 32 years and doing business and earning Rs.20,000/- per month. Due the accident he has suffered permanent disability. In order to substantiate the same, he has examined the doctor as PW.2, who deposed that he has examined the petitioner and issued disability certificate as per Ex.P13, on the basis of radiological and clinical examination and deposed that after examining the petitioner he assessed the permanent disability in relation to right lower limb is 34% to 36%. During the cross examination the petitioner has admitted that PW.2 is not a treated doctor. Hence, the tribunal has assessed the disability of the petitioner at 10%, which is on the lower side. Considering the evidence of PW.2 and disability certificate and the fracture of femur -8- NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 and fibula and also the medical records produced by the petitioner, we assess the permanent disability at 13% to the whole body.
14. In order to substantiate his case, the petitioner has not produced any evidence with regard to his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2016, the notional income has to be taken at Rs.8,750/- p.m. The petitioner is aged about 32 years at the time of the accident and multiplier applicable to his age group is '16' which is rightly taken by the tribunal. Thus, the petitioner is entitled for compensation of Rs.2,18,400/- (Rs.8,750/- x 12 x 16 x 13%) on account of 'loss of future income'.
15. Considering the evidence of PW.2 and disability certificate, we re-assess the compensation under the following heads as under;
-9- NC: 2024:KHC-K:4560-DB MFA No. 201692 of 2022 Sl. Heads By Tribunal By this Court No. 1. Pain and sufferings Rs.35,000/- Rs.50,000/- 2. Loss of amenities Rs.30,000/- Rs.40,000/- 3. Towards attendant Rs.5,000/- Rs.15,000/- charges, nourishment and diet 4. Towards medical Rs.35,927/- Rs.35,927/- expenses 5. Loss of future income Rs.1,68,000/- Rs.2,18,400/- 6. Loss of income during ---- Rs.26,250/- laid up period Total Rs.2,73,927/- Rs.3,85,577/- 16. The petitioner is entitled for a total
compensation of Rs.3,85,577/- as against Rs.2,73,927/- awarded by the tribunal. Hence, the petitioner is entitled for an enhanced compensation of Rs.1,11,650/- with interest @ 6% p.a.
17. 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.
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(c) The petitioner is entitled for a total compensation of Rs.3,85,577/- as against Rs.2,73,927/- awarded by the tribunal, along with interest at the rate of 6% per annum from the date of petition till realization. The petitioner is entitled for an enhanced compensation of Rs.1,11,650/- with interest @ 6% p.a.
(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.
(e) The rest of the order passed by the tribunal is not disturbed.
Sd/-
JUDGE Sd/-
JUDGE MSR List No.: 1 Sl No.: 24 CT;BN