Karnataka High Court

Ramreddy S/O Mallikarjunreddy @ ... vs Sharan Reddy And Anr on 2 December, 2021

Bench: M.G.S.Kamal

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         IN THE HIGH COURT OF KARNATAKA

                KALABURAGI BENCH


  DATED THIS THE 02ND DAY OF DECEMBER, 2021

                      BEFORE

        THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             MFA No.202339/2019 (MV)


BETWEEN:


RAMREDDY S/O MALLIKARJUNREDDY
@ VENKATAREDY PATIL,
AGE: 42 YEARS OCC: LEGAL PRACTITIONER - ADVOCATE
R/O: BASAVANAGAR - SEDAM
TQ: SEDAM DIST: KALABURAGI.

                                     ... APPELLANT

(BY SRI. SANJEEV PATIL, ADVOCATE)



AND:


01.    SHARAN REDDY S/O NARAYAN REDDY MALI PATIL
       AGE: 41 YEARS OCC: AGRICULTURE
       (OWNER OF THE VEHICLE)
       R/O: HANAMANAHALLI VILLAGE
       TQ: SEDAM, DIST: KALABURAGI - 585 222.
                           2




02.    THE MANAGER,
       TATA AIG GENERAL INSURANCE CO. LTD.,
       HALL MARK BUILDING, 3RD FLOOR
       DESAI CROSS
       HUBLI - KARNATAKA - 580 029.
                                    ... RESPONDENTS

(BY SRI. S. S. ASPALLI, ADVOCATE FOR R2
NOTICE TO R1 IS DISPENSED WITH VIDE ORDER
DATED 02.12.2021)

       THIS MISCELLANEOUS FIRST     APPEAL       IS    FILED

UNDER SECTION 173 (1) OF THE MOTOR VEHICLE ACT,

1988     PRAYING   TO    EXERCISE       ITS      APPELLATE

JURISDICTION, CALL FOR RECORDS AND MODIFY THE

JUDGMENT AND AWARD DATED 19.07.2019 PASSED BY

THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND

MACT AT SEDAM IN MVC.NO.426/2018 BY ENHANCING

THE COMPENSATION AMOUNT TO `.20,28,200/- AND ALSO

ENHANCE THE INTEREST PAYABLE BY THE RESPONDENTS

ON THE COMPENSATION AMOUNT AND FURTHER BE

PLEASED    TO   ALLOW   THIS   APPEAL    FILED    BY    THE

APPELLANT HEREIN IN THE ENDS OF JUSTICE.


       THIS APPEAL COMING ON FOR ORDERS THIS DAY,

THE COURT DELIVERED THE FOLLOWING:-
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                             JUDGMENT

This appeal is filed by the claimant aggrieved by the

judgment and order dated 19.07.2019 passed in

MVC.No.426/2018 on the file of the II Additional Senior

Civil Judge and MACT at Sedam (henceforth referred as

'Tribunal').

02. The Brief facts leading upto filing of the

present appeal are that on 26.01.2018 at about 08.30

p.m. the claimant was proceeding on motorcycle bearing

Reg.No.KA-32-EB-5258 near HDFC Bank, on Sedam -

Kodangal road, at that time another motorcycle bearing

Reg.No.KA-32-Q-9253 (henceforth referred as 'offending

vehicle') ridden by its rider in a rash and negligent manner

and dashed to the motorcycle of the claimant, resulting in

the accident causing grievous injuries to the claimant in

the nature of fracture to the right leg. After the accident he

was shifted to Hospital and taken treatment as an inpatient

for ten days and underwent for surgery.

03. Thereupon, the claimant filed a claim petition

under Section 166 of the M.V. Act claiming compensation

of `.30,00,000/- on the premise that he is practicing

advocate earning `.20,000/- per month and also earning

`.20,000/- from the agriculture activities. That on account

of accident occurred as stated above, he is unable to

carryout his day to day activities. Hence, sought for

compensation.

04. Upon service of notice, the respondent No.1

owner of the offending vehicle filed written statement

denying the averments of the claim petition. It is

contended that the offending vehicle was insured with the

respondent No.2 - insurance company and insurance policy

was also in force as on the date of accident. That if at all

the claimant is entitled for compensation, the same is to

be payable by the respondent No.2.

05. The respondent No.2 - insurance company filed

written statement denying the averments of the claim

petition. It is contended that the rider of the offending

vehicle was not at fault. The rider of the offending

motorcycle did not possess a valid and effective driving

license to ride the offending vehicle as on the date of

accident. There was a violation of terms and conditions of

the insurance policy. Hence, sought for dismissal of the

claim petition.

06. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and Dr. Ajay examined

as PW.2. The claimant marked seventeen documents as

Exs.P1 to Ex.P.17. No witness has been examined on

behalf of the insurance company.

07. The Tribunal based on the pleadings and

evidence on record held that the accident in question

occurred due to rash and negligent riding of the offending

vehicle by its rider causing injuries to the claimant.

Consequently, the Tribunal held that the claimant is

entitled for a total compensation of `.5,28,200/- along with

interest at the rate of 6% p.a. from the date of petition till

payment, directing the respondent No.2 to deposit the

award amount with interest within 60 days from the date

of passing of the award, under the following heads:-

 Sl.                 Heads                                Amount
 No.
01.      Pain and suffering                       `.0,25,000/-
02.      Attendant charges, food and              `.0,05,000/-
         conveyance charges
03.      Loss of future income                    `.2,52,000/-
04.      Medical Expenditure                      `.2,11,200/-
05.      Loss     of   income    during           `.0,20,000/-
         treatment
06.      Loss     of   amenities   and            `.0,15,000/-
         nutrition food
         Total compensation                       `.5,28,000/-

08. Being aggrieved by the aforesaid judgment and

award, the claimant is before this Court seeking

enhancement of compensation.

09. The learned counsel for the appellant -

claimant reiterating the grounds urged in the appeal

memorandum submitted that the claimant being practicing

advocate was having income at `.20,000/- per month from

his profession, besides the income of `.20,000/- from

agricultural activities, despite the same, the Tribunal had

assessed the notional income of the claimant at `.10,000/-

per month. He further submits that PW.2 - Doctor who

treated the claimant, has assessed the disability at 29%.

However, the Tribunal has taken into consideration the

disability of the claimant to the extent of 15% to the whole

body. He further submits that award of compensation

under other heads is on lower side. Hence, sought for

enhancement of the compensation.

10. On the other hand, the learned counsel for the

respondent No.2 - insurance company justifying the

judgment and award passed by the Tribunal submitted

that the claimant had not produced any material evidence

to justify his claim that he was earning `.40,000/- per

month from his profession and from agriculture activities.

That the Tribunal has rightly considered the disability of

the claimant. Hence, sought for dismissal of the appeal.

11. Heard the learned counsel for the parties and

perused the records.

12. The only point that arise for consideration is:

"Whether the claimant has made out a case for enhancement of compensation?."

13. There is no dispute with regard to the fact that

the accident occurred involving two motorcycles as

referred above, resulting in grievous injuries to the

claimant. The wound certificate at Ex.P.7 reveals that the

claimant had suffered contused lacerated wound over right

leg 15 x 15 cm. and fracture of tibia and fibula on right

side. PW.2 - Doctor who had issued Ex.P.10 - disability

certificate has also deposed with regard to injuries suffered

by the claimant. Hence, there is sufficient evidence on

record to justify that in the accident the claimant has

suffered aforesaid injuries. Admittedly, the claimant is

practicing advocate a Sedam Court. The disability

certificate issued by the doctor who treated the claimant

reveals that there is disability of 29% to the whole body.

Therefore, the income of the claimant is stated to be

Rs.40,000/- p.m. from his profession as well as

agricultural activities. No documents are produced in that

regard. That the Tribunal has however taken the notional

income at Rs.10,000/- per month.

14. Considering the age of the claimant being 41

years and he would have put in a minimum practice about

15 years. The assessment of notional income of `.10,000/-

made by the Tribunal is on lower side. Therefore, the

notional income of the claimant can be assessed at

`.15,000/- per month instead of `.10,000/- per month as

assessed by the Tribunal.

15. Adverting to the disability assessed by the

Tribunal at 15% by considering the nature of the injuries

suffered by the claimant, the same is required to be

enhanced to the extent of 18%.

16. Thus, applying the multiplier of 14, the

claimant is held entitled for the compensation towards loss

of future income at the rate of `.04,53,600/- (`.15,000/- x

12 x 18% x 14).

17. The Tribunal has awarded `.25,000/- towards

pain and suffering, the same is enhanced to `.50,000/-.

The Tribunal has awarded `.5,000/- towards attendant

charges, food and conveyance charges, the same is

enhanced to `.10,000/-. The Tribunal has awarded

`.2,11,200/- towards medical expenditure, this Court is of

the opinion that the same just and proper. Hence, the

compensation towards medical expenditure is maintained

as it is just and proper. The Tribunal has awarded

`.20,000/- towards loss of income during treatment. The

same is enhanced to `.45,000/- (`.15,000x3). The Tribunal

has awarded `.15,000/- towards loss of amenities and

nutrition food, the same is enhanced to `.50,000/-.

18. Therefore, the compensation awarded by the

Tribunal deserves to be re-determined and re-calculated as

follows:-

      Sl.                              Awarded by the    Enhanced by this
                     Heads
      No.                                  Tribunal            Court
      01.   Pain and suffering        `.0,25,000/-      `.0,50,000/-.
      02.   Attendant charges, food   `.0,05,000/-      `.0,10,000/-
            and conveyance charges
      03.   Loss of future income     `.2,52,000/-      `,4,53,600/-
      04.   Medical Expenditure       `.2,11,200/-      `.2,11,200/-
      05.   Loss of income during     `.0,20,000/-      `.0,45,000/-
            treatment
      06.   Loss of amenities and     `.0,15,000/-      `.0,50,000/-
            nutrition food
            Total compensation        `.5,28,000/-      `.8,19,800/-

19. Hence, the point raised for consideration is

answered accordingly.

20. In the result, the following;

ORDER

(i) The MFA.No.202339/2019 filed by the appellant -

claimant is partly allowed.

(ii) The judgment and award dated 19.07.2019 passed

in MVC.No.426/2018 by the II Additional Senior Civil

Judge and MACT at Sedam, is modified.

(iii) The claimant is held entitled for a total compensation

of `..8,19,800/- together interest at the rate of 6%

p.a. from the date of claim petition till payment.