Gopala Mogaveera vs Pradeepa Helre
2021 Latest Caselaw 5190 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 1ST DAY OF DECEMBER 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

              MFA No.3752 OF 2016(MV)

BETWEEN:

GOPALA MOGAVEERA
AGED ABOUT 48 YEARS
S/O BASAVA MOGAVEERA
R/AT HAKLU MANE, SHANKAT
AMPARU VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT.                  ...APPELLANT



(BY SMT. NAZEEFA M MULLA, ADV. FOR
SRI.PAVANA CHANDRA SHETTY H., ADV.)

AND

1.     PRADEEPA HELRE
       AGED ABOUT 35 YEARS
       S/O G. RAMADEVA
       R/AT NO.40/1, 2ND FLOOR
       BELLARY ROAD, GANGANAGAR
       BENGALURU.

2.     BAJAJ ALLIANCE GENERAL
       INSURANCE CO LTD
       GROUND FLOOR
       NO.31, TBR TOWER
       1ST CROSS, NEW MISSION ROAD
       NEAR BENGALURU STOCK EXCHANGE
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     BENGALURU
     REP BY ITS AUTHORIZED OFFICER.

3.   SANTHOSHA KUMAR SHETTY
     AGED ABOUT 36 YEARS
     S/O SHEENAPPA SHETTY
     R/AT KANCHARU GARADI MANE
     AMPARU GRAMA
     KUNDAPURA TALUK.

4.   IFFCO TOKIO GENERLA INS CO LTD
     CUSTOMER SERVICE CENTRE
     SRI SHANTHI TOWERS
     5TH FLOOR
     BUILDING NO.141, 3RD MAIN
     N.G.E.F.LAYOUT
     KASTURI NAGAR
     BENGALURU-560 043
     REP BY ITS MANAGER.     ...RESPONDENTS

(BY SRI.P B RAJU, ADV. FOR R2:
    SRI. E.I. SANMATHI, ADV. FOR R4)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:05.03.2016 PASSED
IN MVC NO.1109/13 ON THE FILE OF THE ADDITIONAL
DISTRICT & SESSIONS JUDGE & MACT, UDUPI (SITTING
AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


     THIS MFA COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                          JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 05.03.2016 passed

by the Motor Accident Claims Tribunal, Kundapura in

MVC No.1109/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.06.2013 at about 01.45

P.M., when the claimant along with one Raju

Mogaveera was proceeding in a Auto Rickshaw bearing

registration No.KA-20-C-5581 from Shankattu to

Vandse, the driver of the said Auto Rickshaw drove

the same in high speed and in a rash and negligent

manner, at the same time, driver of the Car bearing

registration No.KA-04-MJ-7151 also drove the same in

a rash and negligent manner from Vandse to Amparu

and both vehicles were dashed against each other. As

a result of the aforesaid accident, the claimant

sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred on account of the rash and

negligent driving of both the vehicles by its drivers.

4. On service of notice, the respondent Nos.2

and 4 being the insurers of both the vehicles have

appeared through counsel and filed separate written

statements in which the averments made in the

petition were denied. Hence, they sought for dismissal

of the petition.

The respondent Nos.1 and 3 did not appear

before the Tribunal inspite of service of notice and

were placed ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Balakrishna Shetty was

examined as PW-2 and got exhibited six documents.

On behalf of the respondents, neither examined any

witness nor exhibited any document. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of both vehicles by its drivers, as a

result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.1,25,500/- along with interest at

the rate of 8% p.a. and directed both Insurance

Companies to deposit 50% each of the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimant has

contended that due to the accident, the claimant has

suffered grievous injuries. He has suffered lot of pain

during the treatment. He has to suffer with the

disablement and unhappiness through out of his life.

Considering the evidence of the claimant and injuries

suffered by him, the compensation awarded by the

Tribunal of Rs.1,25,500/- is on lower side. Hence, he

sought for enhancement of compensation.

7. On the other hand, the learned counsel for

both Insurance Companies have contended that the

claimant has suffered only nosal injury and there is no

any disability. Therefore, the claimant is not entitle for

the compensation towards 'loss of income due to

disability'. Considering the evidence of the claimant

and injuries suffered by the claimant, the overall

compensation awarded by the Tribunal is on higher

side. Hence, they sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the drivers of the

Auto Rickshaw bearing registration No.KA-20-C-5581

and Car bearing registration No.KA-04-MJ-7151.

As per wound certificate, the claimant has

sustained avulsion of nose with profuse bleeding,

nasal bone fracture, laceration upper lip 6X3 cms.,

laceration right side eye over face 8X3 cms., abrasions

right forearm and avulsion of gum from lower jaw.

Due to the injuries, the claimant has suffered lot of

pain during treatment and he has to suffer with the

disablement and unhappiness throughout his life.

Considering the evidence of the claimant and injuries

suffered by him, I am of the opinion that the claimant

is entitled another Rs.40,000/- in addition to the

compensation awarded by the Tribunal.

10. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.1,65,500/-.

Both Insurance Companies are directed to

deposit 50% each of the compensation amount along

with interest from the date of filing of the claim

petition till the date of realization, within a period of

six weeks from the date of receipt of copy of this

judgment.

The Tribunal is directed to release the entire

compensation amount with interest in favour of the

claimant after due verification.

Sd/-

JUDGE

HA/-