Shri. Rafiqahmed S/O Ibrahimsab ... vs Shri. Shreepad S/O Ganapati Bhat,
2021 Latest Caselaw 3118 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 06TH DAY OF AUGUST, 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

     MISCELLANEOUS FIRST APPEAL NO.22924 OF 2011 (MV)

BETWEEN
SHRI. RAFIQAHMED
S/O. IBRAHIMSAB YARAGATTI,
AGE: 48 YEARS, OCC: COOK,
R/O: 8TH CROSS, AMIN GALLI,
NEW GANDHI NAGAR, BELGAUM
                                               ...APPELLANT

(BY SRI. SANGRAM S KULKARNI, ADVOCATE)

AND
1.     SHRI. SHREEPAD S/O GANAPATI BHAT,
       AGE: MAJOR, OCC: BUSINESS,
       R/O: PLOT NO. 30/4 IN R.S.NO.48/IC,
       SHAHU NAGAR, BELGAUM

2.     THE NATIONAL INSURANCE CO. LTD.,
       DIVISIONAL OFFICE, 1732,
       1ST FLOOR, RAMDEV GALLI, BELGAUM.
                                             ...RESPONDENTS

(BY SRI. S. C. JAINAR, ADVOCATE FOR R2;
R1-NOTICE DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2010
PASSED IN MVC NO. 908/2008 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-IV & MEMBER M.A.C.T.,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING    ENHANCEMENT      OF
COMPENSATION.
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      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed against the judgment and award

dated 31.12.2010 in MVC No. 908/2008 passed by the

learned Presiding Officer, Fast Track Court-IV and Member

M.A.C.T., Belgaum (for short "the Tribunal") seeking

enhancement of compensation.

2. The appellant is the claimant before the

Tribunal. For the sake of convenience, parties are referred

to as per their original ranks before the learned Tribunal.

3. The brief facts of the case are that on

19.01.2008 at 10.00 a.m., near Ramdev Hotel, Belgaum

when the claimant along with his friend was proceeding by

walk on the left side of the road, Maruti Alto LX car bearing

No.KA-22/N-3048 came in a rash and negligent manner in

a high speed and dashed the claimant from his backside

resulting in accident, due to which he sustained grievous

injuries and immediately he was taken to District Hospital,

Belgaum and later he was shifted to KLE Hospital, Belgaum

wherein he took treatment as an inpatient and still he is

undergoing follow-up treatment and he incurred medical

expenses to the tune of Rs.1,20,000/-. That he was hale

and healthy prior to the accident and was working as a

cook in hotel and private parties as well as marriage

functions and was earning Rs.4,000/- per month and was

maintaining his family, but due to the accidental injuries,

he is not in a position to do any work and lost his working

capacity. That, the accident in question was because of

actionable negligence on the part of the driver of the car

hence, respondents 1 and 2 being owner and insurer of the

offending vehicle are liable to pay the compensation.

4. Respondent No.1-owner of the car did not

appear before the Tribunal and was placed exparte, while

respondent No.2-insurer has contested the petition by

filing objections denying the petition averments. It is

contended that the compensation claimed by the claimant

is exorbitant and excessive and further asserted that there

is a violation of policy conditions and the driver was not

possessing a valid and effective driving licence as on the

date of the accident and thus, disputed its liability.

5. On the basis of the pleadings of the parties,

the Tribunal framed the following issues.

1. Whether the petitioner proves that on 19.01.2008 at 10.00 a.m., near Ramdev Hotel, Belgaum, the accident had taken place due to the rash and negligent driving of Maruti ALTO LX bearing No.KA-22/N-3048 by its driver and thus he was injured?

2. Whether the respondent No.2 proves that the driver of the vehicle was not holding a valid and effective driving licence at the time of accident?

3. Whether the petitioner is entitled for compensation? If so, on what quantum? And from whom?

4. What order or award?

6. The learned Tribunal, after appreciation of the

evidence, answered issue No.1 and 3 in affirmative while

answered issue No.2 in the negative and has awarded total

compensation of Rs.1,21,000/- to the claimant with

interest @ 9% per annum with a direction to respondents

1 and 2 to pay the same jointly and severally. Dissatisfied

with the said judgment and award, the claimant has

preferred this appeal under Section 173(1) of M.V. Act.

7. It is argued by the learned counsel for the

appellant-claimant that the Tribunal is justified in holding

that the accident had occurred on account of actionable

negligence on the part of the driver of the offending

vehicle but has erred in awarding meager compensation of

Rs.30,000/- towards pain and sufferings though the

claimant has suffered grievous injuries and lost his

memory. He would further submit that the Tribunal has

also erred in awarding a meager compensation of

Rs.42,000/- towards medical expenses though the records

disclose that the appellant-claimant had incurred medical

expenses to the tune of Rs.1,25,000/-. He would also

submit that the appellant-claimant has suffered permanent

disability and he requires future medical treatment, as he

is suffering repeated pain which is not considered by the

Tribunal. He would further contend that the claimant has

become permanently disabled and no compensation is

awarded towards loss of future income and the award of

Rs.9,000/- towards loss of income during the laid up

period is also on the lower side and hence, he prayed for

enhancement of compensation by awarding Rs.5,20,000/-.

8. Per contra, learned counsel for respondent-

insurer would submit that the Tribunal has awarded a just

and reasonable compensation. It is submitted that the

Tribunal is correct in awarding compensation towards

medical expenses as per the memo submitted by the

learned counsel for petitioner himself. It is contended that

there is no material evidence placed to show that the

petitioner has spent Rs.1,25,000/- towards medical

expenses. He would also submit that there is no evidence

to show the disability as alleged and as such, question of

awarding compensation under the said head does not arise

at all. Hence, he would request for rejection of the appeal.

9. Having heard the arguments of the learned

counsel on both sides and perusing the records, it is

evident that the petitioner did sustain injuries in road

traffic accident. The Tribunal has answered issue No.1 that

the accident in question is because of actionable

negligence on the part of the driver of Alto car and this

finding is not challenged by the present respondent.

Hence, the issue is only with regard to quantum of

compensation.

10. The claimant examined himself, before the

Tribunal, as PW1 and in his examination-in-chief he has

reiterated the averments made in his claim petition. In

support of his case, he relied on the documents marked at

Ex.P1 to Ex.P15. Ex.P1 to Ex.P5 are regarding FIR,

complaint, Panchanama, Spot Map, MVI report and since

accident is not in dispute, they have no relevancy. Ex.P6 is

the wound certificate, which discloses that there is

comminuted fracture with displacement involving the

cranial vault, frontal parietal and occipital bone on both

sides. Hence, it is evident that the claimant sustained

three major fractures and was admitted in hospital on

22.01.2008 and was discharged on 07.02.2008. Hence,

approximately for 17 days he was indoor patient in KLE

hospital, Belgaum, which is evident from Ex.P6. Ex.P6 is

not seriously challenged. Ex.P8, Ex.P9 and Ex.P10 are

follow- up out-patient sheets. Ex.P11 is the summary

sheet of KLE hospital. Ex.P12 is CT scan report of brain. It

discloses that there is a fracture of left frontal,

comminuted fracture of right parietal and depressed,

comminuted fracture of bilateral occipital bones. Ex.P14

are the prescriptions while Ex.P15 are medical bills.

Though the claimant has all along asserted that he spent

Rs.1,25,000/- towards medical expenses but Ex.P15

discloses that he spent Rs.41,215.86/-. The Tribunal

appreciating the evidence on record, has awarded total

compensation of Rs.1,21,000/- under following heads:

                    Head                           Amount (in Rs.)
Towards pain and sufferings                                    30,000/-
Towards loss of amenities and comforts                         30,000/-
in life
Towards special diet, conveyance and                           10,000/-
incidental charges
Towards medical expenses (Bills are                            42,000/-
produced of Rs.41,215.86/-




Towards loss of income during the laid               9,000/-
up period for three months
(Rs.3000 x 3=Rs.9,000/-
Total                                              1,21,000/-

11. Ex.P12 discloses that claimant has suffered

three major fractures and the Tribunal has awarded

Rs.30,000/- all along towards pain and sufferings.

Considering the fact that the claimant has suffered three

major fractures on his head as per Ex.P12, it is just and

proper to award compensation of Rs.50,000/- towards pain

and sufferings as against Rs.30,000/- awarded by the

Tribunal. Further, the Tribunal has awarded compensation

of Rs.30,000/- towards loss of amenities and comforts in

life. Since the claimant has suffered three major fractures

in the head and was admitted in hospital for 17 days, I

deem it just and proper to award Rs.50,000/- under the

said head as against Rs.30,000/- awarded by the Tribunal.

12. The Tribunal has taken the monthly income of

Rs.3,000/- while awarding compensation under the head of

loss of income during the laid up period and awarded

Rs.9,000/- for three months. The accident is of the year

2008 and the monthly income of Rs.3,000/- appears to be

on lower side. Hence, I deem it proper to take it at

Rs.4,000/- per month and accordingly, the claimant is

entitled to Rs.12,000/- towards loss of income during the

laid up period as against Rs.9,000/- awarded by the

Tribunal.

13. The learned counsel for appellant-claimant has

contended that no compensation was awarded by the

Tribunal under the head of loss of future income as the

claimant has suffered permanent disability. But in order to

prove that the claimant has suffered permanent disability

neither the doctor was examined nor there is any material

evidence placed on record. Looking to the facts and

circumstances of the case, the question of awarding any

compensation under the head loss of future income on

account of disability or future prospects does not arise at

all.

14. Though the claimant contends that he has

spent an amount of Rs.1,25,000/- towards medical

expenses, no material is produced to substantiate the

same. The Tribunal, after considering the medical bills

produced at Ex.P15, has awarded Rs.42,000/- towards

medical expenses, which does not call for any interference

in the absence of any other materials.

15. The Tribunal has awarded Rs.10,000/- towards

special diet, conveyance and incidental charges. In the

absence of any other material produced by the claimant,

the said amount is just and reasonable and needs no

enhancement. Hence, the petitioner is entitled for total

compensation under different heads as under:

                 Heads                         Amount
Towards pain and sufferings                    Rs.50,000/-
Towards loss of amenities and comforts         Rs.50,000/-
in life
Loss of income during the laid up period       Rs.12,000/-
(Rs.4000 x 3 =Rs.12,000)
Towards medical expenses                       Rs.42,000/-
Towards special diet, conveyance and           Rs.10,000/-
incidental charges
Total                                      Rs.1,64,000/-

16. In view of the above, I proceed to pass the

following:

ORDER

The above appeal is allowed in part.

The claimant is held entitled for total compensation of Rs.1,64,000/- as against Rs.1,21,000/- awarded by the Tribunal.

The enhanced compensation shall carry interest @ 6% per annum from the date of petition till the date of deposit.

The respondent-insurance company is directed to deposit the compensation along with interest within a period of four weeks from the date of receipt of certified copy of the order.

The entire enhanced compensation with interest shall be released in favour of claimant.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.

Sd/-

JUDGE yan