Karnataka High Court
Ashok S/O Bhimappa Vasanad vs Chandrashekhar Malleshappa Badiger on 27 June, 2024
Author: S G Pandit
Bench: S G Pandit
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NC: 2024:KHC-D:8738-DB
MFA No.101027 of 2021
C/W MFA.CROB No.100066 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.101027 OF 2021 (MV-I)
C/W MFA CROSS OBJ NO.100066 OF 2021
IN MFA NO. 101027 OF 2021
BETWEEN:
ASHOK
S/O. BHIMAPPA VASANAD,
AGE. 48 YEARS, OCC. BUSINESS,
R/O. II MAIN ROAD,
6TH CROSS, KALYAN NAGAR,
DHARWAD,
OWNER OF VEHICLE BEARING
REG. NO.HR-99/TC-TEMP/0676.
...APPELLANT
JAGADISH (BY SRI B.V. SOMAPUR, ADVOCATE)
TR
AND:
Digitally signed
by JAGADISH T R
Location: HIGH
COURT OF
KARNATAKA
CHANDRASHEKHAR MALLESHAPPA BADIGER,
DHARWAD
BENCH AGE. 28 YEARS, OCC. BUSINESS,
R/O. MUMMIGATTI,
TQ. DIST. DHARWAD.
...RESPONDENT
(BY SRI DINESH M.KULKARNI AND SRI R.A. PUROHIT,
ADVOCATES)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD PASSED BY THE II ADDITIONAL SENIOR
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NC: 2024:KHC-D:8738-DB
MFA No.101027 of 2021
C/W MFA.CROB No.100066 of 2021
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, DHARWAD IN M.V.C. NO.46/2017 DATED 18.06.2021
VIDE ANNEXURE-A AND B AND ETC.,
IN MFA. CROB NO.100066 OF 2021
BETWEEN:
CHANDRASHEKHAR
S/O. MALLESHAPPA BADIGER,
AGE. 28 YEARS,
OCC. BUSINESS,
R/O. MUMMIGATTI-580011,
TQ. & DIST. DHARWAD.
...CROSS OBJECTOR
(BY SRI DINESH M.KULKARNI AND SRI R.A. PUROHIT,
ADVOCATES)
AND:
ASHOK S/O. BHIMAPPA VASANAD,
AGE. 48 EYARS, OCC. BUSINESS,
R/O. II MAIN ROAD, 6TH CROSS,
KALYAN NAGAR, DHARWAD-580001,
...RESPONDENT
(BY SRI B.V. SOMAPUR, ADVOCATE)
THIS MFA.CROB IN MFA NO.101027/2021 IS FILED UNDER
ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND
AWARD DATED 18.06.2021 PASSED IN MVC NO.46/2017 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD,
ALLOWING THE PETITION FILED UNDER SECTION 166(1) OF
MOTOR VEHICLE ACT AND ETC.,
THIS MISCELLANEOUS FIRST APPEAL AND MFA. CROB,
COMING ON FOR ADMISSION, THIS DAY, S G PANDIT, J.,
DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:8738-DB
MFA No.101027 of 2021
C/W MFA.CROB No.100066 of 2021
JUDGMENT
The appeal and cross-objections arise out of the judgment and award, dated 18.06.2021 in MVC No.46/2017 on the file of the II Additional Senior Civil Judge and Addl. MACT, Dharwad (for short, 'the Tribunal'). The owner is in appeal, denying the liability, whereas the claimant has filed cross-objection praying for enhancement of compensation not being satisfied with the quantum of compensation awarded under the Judgment.
2. Brief facts of the case leading to filing of the appeal and cross-objection are:
(a) The claimant on 09.11.2015, while going on walk, a sports motorcycle bearing No.KA-HR-99/TC-0676 came in a high speed and dashed against the claimant while he was crossing the road near Mummigatti bus-stand due to which he fell down and sustained grievous injuries on the head and all over the body. It is stated that, the injured claimant was self employed, earning a sum of Rs.20,000/- per month, aged about 24 years as on the date of the accident. -4-
NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021
(b) On issuance of notice, the respondent-owner of the motorcycle appeared through his counsel and filed written statement denying the averments of the claim petition and further contended that, the motorcycle did not met with any accident on 09.11.2015 as alleged. He has contended that, the motorcycle is falsely implicated.
(c) In support of his claim, the claimant examined himself as P.W.1 and the complainant as P.W.2, apart from examining the Doctor as C.W.1, and produced 16 documents which were marked as Ex.P.1 to Ex.P.16. On behalf of respondents, R.W.1 - owner of the motorcycle was examined and no documents were marked. The Tribunal, on appreciation of the material on record, awarded total compensation of Rs.13,19,000/- with interest at the rate of 8% per annum on the following heads:
1. Pain, shock and suffering Rs. 75,000/-
2. Loss of Amenities Rs. 25,000/-
3. Medical expenses Rs. 8,45,000/-
4. Income during laid up Rs. 30,000/-
period
5. Towards nourishment and Rs. 20,000/- attendant charges
6. Loss of future income Rs. 3,24,000/-
Total Rs. 13,19,000/--5-
NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 While awarding the above compensation, the Tribunal has assessed the monthly income of the injured claimant at Rs.10,000/- per month, assessed the whole body disability at 15%, and adopted multiplier of '18'. The respondent-
owner is in appeal denying the liability to pay compensation and claimants are in cross-objection not being satisfied with the quantum of compensation.
3. Learned counsel Sri. B.V.Somapur, appearing for the appellant-owner submits that, in the accident that is alleged to have taken place on 09.11.2015, the motorcycle in question is not involved, but it has been falsely implicated. Learned counsel would further submit that the accident took place on 09.11.2015, whereas P.W.2, the complainant lodged a complaint after four days of the accident. Further, learned counsel would also contend that the cross-objector/claimant also contributed his negligence to the occurrence of the accident. The accident had taken place on the National Highway and the cross-objector/claimant, without taking any care and caution, was crossing the road. It is further submitted that the cross-objector/claimant could not have crossed the road and he -6- NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 ought to have crossed the road at the place earmarked for pedestrian crossing. Thus, he submits that the cross- objector/claimant had also contributed to the occurrence of the accident.
4. Learned counsel for the appellant-owner of the motorcycle contends that the cross-objector/claimant has not suffered any fracture and hence he has not suffered any disability. The assessment of whole body disability at 15% by the Tribunal is erroneous when compared to the nature of injuries sustained by the cross-objector/claimant. Learned counsel would submit that the doctor, in his evidence, has stated that the disability suffered by the cross- objector/claimant is temporary and that the condition of the cross-objector/claimant would improve on treatment. Further, the learned counsel would submit that the Tribunal has awarded exorbitant compensation on the head of medical expenses at Rs.8,45,000/-. Learned counsel would submit that, in terms of the medical bills, the cross-objector/claimant would be entitled for Rs.2,25,000/- only, and not more than that. Further, it is contended that the Tribunal committed a grave -7- NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 error in assessing the income of the injured claimant at Rs.10,000/- per month in the absence of any material to establish his income and avocation. Learned counsel would submit that, for the year 2015 the notional income fixed by the Karnataka State Legal Services Authority is Rs.8,000/- per month, but the Tribunal, without there being any document or evidence, has erroneously assessed the notional income of the injured claimant/appellant at Rs.10,000/- per month which he prays for revising on lower side. Thus, he prays for allowing the appeal filed by the respondent-owner.
5. Learned counsel, Sri. R.A.Purohit for Sri. Dinesh M.Kulkarni, learned counsel for the cross-objector/claimant would submit that the compensation awarded by the Tribunal is just compensation which needs no interference. Further, he submits that it is not open for the appellant-owner to contend that the vehicle is falsely implicated. By referring to Ex.P.7- Motor Vehicle Inspector's Report, he submits that the motorcycle was damaged and hence, counsel for appellant- owner cannot say that motorcycle is not involved in the accident. The learned counsel would further submit that the -8- NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 appellant-owner has failed to inform the police with regard to the accident and has also failed to provide first-aid to the claimant-injured. He submits that, P.W.2 filed complaint on the fourth day of the accident, since the cross-objector/claimant was under treatment. The learned counsel would submit that the cross-objector/claimant, in terms of wound certificate at Ex.P.10 has suffered head injury and facial injury which, according to the doctor, the claimant-appellant has suffered 50% whole body disability. Learned counsel refers to Ex.P.13 submits that the doctor has rightly assessed the whole body disability of the claimant-appellant at 50%. With regard to income of the cross-objector/claimant, the learned counsel would submit that the claimant was self-employed and was earning more than Rs.20,000/- per month, and hence, the Tribunal taking note of the same, has assessed the income of the claimant-appellant at Rs.10,000/- per month which needs no interference. Learned counsel would fairly submit that the medical bills are submitted to an extent of Rs.2,25,000/- and the claimant would be entitled to medical expenses to the extent of bills submitted by him. Further, he submits that the -9- NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 compensation awarded on the other heads is on the lower side and prays for enhancement of the same.
6. Having heard the learned counsel for the parties and on perusal of the appeal papers including the records of the Tribunal, the following points would arise for consideration:
i) Whether the appellant-owner of the vehicle has proved that the motorcycle in question is implicated in the accident?
ii) Whether the cross-objector/claimant would be entitled for enhancement of compensation?
7. The answer to the above points would be in the negative for the following reasons:
(a) The appellant-owner has mainly contended that the motorcycle in question is not involved in the accident, but is implicated in the accident. He further contended that the accident has taken place on 09.11.2015, whereas the complaint is filed after four days of the accident. When the contention of the appellant-owner is examined by considering the material on record, there is no merit in the said contention of the appellant. Admittedly, the cross-
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 objector/claimant was admitted to hospital on 09.11.2015 with history of road traffic accident and in terms of Ex.P.10 wound certificate, the claimant had suffered following injuries:
1) C.L.W of about 2 cms on the left side of forehead with haematoma of about 6 cms
2) Superficial abrasion on the left elbow P.W.2 filed complaint before the police and it is also to be noted that a Medico-legal case was sent by hospital authorities to the police on 09.11.2015 itself. Moreover, Ex.P.7-Motor Vehicle Inspector's report indicates the damage caused to the motor cycle in question and therefore, it can be safely said that due to rash and negligent riding of the rider of the motorcycle, the accident in question had occurred. Further, charge sheet is filed against the rider of the motorcycle
(b) Nextly, the learned counsel for the appellant-owner contended that the claimant also contributed his negligence to the occurrence of the accident. It is relevant to note here itself that the charge sheet is filed against the rider of the motorcycle which is not disputed. Further, though the
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 accident has taken place on the National Highway, the rider of the motorcycle ought to have ridden the motorcycle cautiously. Admittedly, the requirement of Section 134(a) and (b) of the Motor Vehicles Act, 1988, to intimate the police is not complied with. The rider of the motorcycle has not performed his duty of informing the police and providing first-aid to the injured person i.e., the cross- objector/claimant. It is also relevant to note that the appellant-owner has not taken any objection with regard to contributory negligence in the objection statement or in the cross-examination and the said contention is taken up for the first time before this Court. In the above circumstances, and in the peculiar facts of the present case, it cannot be said that the claimant-cross-objector has also contributed his negligence to the occurrence of the accident.
(c) The doctor-C.W.1 has deposed that the claimant has sustained 50% whole body disability temporarily. He has also deposed that, on treatment, the condition of the claimant would improve. As stated by the learned counsel for the appellant, the claimant has not sustained any
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 fracture. Therefore, the disability assessed by the Tribunal at 15% to the whole body taking note of evidence of C.W.1 as well as the medical records is proper and correct and needs no interference.
(d) The Tribunal has assessed the income of the claimant at Rs.10,000/- per month, which is wholly erroneous. No material whatsoever is produced to establish the claimant's avocation and income. In the absence of any proof to establish the income, the Tribunal committed a grave error in assessing the notional income of the injured-claimant at Rs.10,000/- per month. The accident is of the year 2015. The notional income fixed by the Karnataka State Legal Services Authority for the year 2015 is Rs.8,000/- per month. Hence, we assess the notional income of the injured claimant at Rs.8,000/- per month as against Rs.10,000/- per month assessed by the Tribunal. Since the income of the cross-objector/claimant is assessed at Rs.8,000/- per month, the claimant would be entitled to a sum of Rs.2,59,200/- [Rs.8,000 x 15% (disability) x 12 x 18 (multiplier)] under the head 'loss of future income', and
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 Rs.24,000/- under the head 'loss of income during laid up period' taking the laid up period as three months.
(e) The Tribunal has awarded a sum of Rs.8,45,000/- towards 'medical expenses'. The learned counsel for the appellant contends that the same is exorbitant when compared with the medical bills produced before the Tribunal. The learned counsel for the appellant-owner has filed a synopsis and the learned counsel for the cross-objector/claimant has also filed details of the medical bills and hospital bills indicating the expenses incurred towards medical treatment. As per the recalculation made by the learned counsels under the aforesaid synopsis and details of the medical bills submitted by them, the medical expenses would amount to Rs.2,25,123/-. As the medical expenses is to be awarded based on the bills, on considering the medical bills placed on record, we deem it appropriate to awarded a sum of Rs.2,25,000/- towards medical expenses. In view of the same, the compensation awarded by the Tribunal in a sum of Rs.8,45,000/- towards 'medical expenses' is reduced to Rs.2,25,000/-, and accordingly, the claimant would be
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 entitled to a sum of Rs.2,25,000/- towards 'medical expenses'.
(f) Taking note of the treatment taken and the period of treatment, the compensation awarded on the other heads are proper and correct.
8. Thus, the claimant would be entitled for the following modified compensation.
1. Pain, shock and suffering Rs. 75,000/-
2. Loss of Amenities Rs. 25,000/-
3. Medical expenses Rs. 2,25,000/-
4. Income during laid up period Rs. 24,000/-
5. Towards nourishment and Rs. 20,000/- attendant charges
6. Loss of future income Rs. 2,59,200/-
Total Rs. 6,28,200/-
Thus, the claimants would be entitled to total compensation of Rs.6,28,200/- instead of Rs.13,19,000/- awarded by the Tribunal.
9. The Tribunal has awarded 8% interest on the compensation awarded. But taking note of the present day Bank interest rate, we deem it proper to reduce the interest
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 from 8% to 6% on the compensation, now reassessed, from the date of claim petition till the date of deposit.
ORDER
(a) M.F.A. No.101027/2021 filed by the owner of the motorcycle is allowed in part.
(b) M.F.A. Crob. No.100066/2021 filed by the claimant is dismissed.
(c) The impugned judgment and award, dated 18.06.2021, passed in M.V.C. No.46/2017 by the Tribunal is modified to the extent that the claimants are entitled to total compensation of Rs.6,28,200/- instead of Rs.13,19,000/- awarded by the Tribunal.
(d) The aforesaid compensation amount will bear interest at the rate of 6% per annum from the date of claim petition till date of realization.
(e) Apportionment with regard to deposit and disbursement of the compensation shall be made in the proportion as awarded by the Tribunal. Registry is directed to transmit the entire amount in deposit to the Tribunal, and also the records of the Tribunal.
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NC: 2024:KHC-D:8738-DB MFA No.101027 of 2021 C/W MFA.CROB No.100066 of 2021 The Tribunal on disbursal of the modified compensation, along with interest, shall refund the excess amount, if any, to the appellant-owner of the motorcycle in question.
Sd/-
JUDGE Sd/-
JUDGE SVH,KMS List No.: 1 Sl No.: 20