Shri. Pushkaraj Ratnakar Wagh vs Shri. A A Savar
2021 Latest Caselaw 5932 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 10 T H DAY OF DECEMBER, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


               M.F.A.No.24797/2010 (MV)

BETWEEN:

SHRI. PUSHKARAJ RATNAKAR WAGH,
AGE: 39 YEARS , OCC: BUSINESS ,
R/O: A- 19 SARAS NAGAR SOCIETY,
OPP- NEHRU STAD IUM, PUNE.
                                            ... APPELLANT
(BY SRIYUTHS K .B.NAIK, V.K .NAIK A ND
 G.L.HULLER, ADV OCATES)

AND

1.    SHRI. A .A .SAVAR,
      AGE: MAJOR, OCC: BUSINESS ,
      R/O: NO.55, VIVEKANAND NAGAR,
      P.B.ROAD, DHARW AD.

2.   THE NATIONAL IN SURANCE CO. LTD .,
     APMC YARD , BRAN CH OFFICE,
     MRUTYUNJAY NAGAR, D HARWAD.
                                          ... RES PONDENTS
(BY SRI.C.V . AN GADI, ADV OCATE F OR R2;
 NOTICE TO R1 DI SPENSED WITH)

     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 25.06.2010 IN
M.V.C.NO.1480/2007 PASSED    BY THE I ADDITIONAL
DISTRICT   JUDGE  AND   MACT-II,   BELAGAVI, PA RTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COM PENSATION.
                                       2




     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:

                               JUDGMENT

Challenging the judgment and award dated

25.06.2010 passed by I Addl.District Judge and

M.A.C.T-II, Belagavi (for short, 'tribunal') in MVC

No.1480/2007, this appeal is filed by the claimant

seeking enhancement of compensation.

2. In the appeal, it is stated that in an accident

that occurred on 05.02.2004, when Tata Sierra car

bearing registration no.MH-12/PA-9963 proceeding

from Dharwad to Pune, a lorry bearing registration

no.KA-25/A-0837 driven by its driver in a rash and

negligent manner came from opposite direction and

dashed to car. In the accident claimant sustained

grievous injuries and his car was damaged. Claiming

compensation for injuries and damages to car separate

claim petitions were filed against owner and insurer of

offending lorry. As both cases arose out of same

accident, they were clubbed together; issues framed

and common evidence was recorded.

3. On behalf of claimant, three witnesses were

examined as PW1 to PW3. Exhibits P1 to P23 were

marked. On behalf of respondents, no oral evidence

was led. Copy of insurance policy was marked with

consent as Ex.R1.

4. On consideration, tribunal allowed both claim

petitions in part. At the time of award, tribunal

apportioned contributory negligence between drivers of

two vehicles involved in accident at 50% each. Not

satisfied with compensation, claimants filed two

separate appeals. They also challenged finding on

contributory negligence in MFA No.24797/2010 and

24798/2010. MFA No.24798/2010 filed challenging

award in MVC No.1479/2007, which was disposed of on

28.01.2013 confirming apportionment of negligence. In

the instant appeal filed against award in MVC

No.1480/2007, the grounds urged are award of

inadequate compensation in respect of damages

sustained to vehicle. It is specifically contended that

appellant had spent Rs.2,50,000/- for repairs and he

sustained loss of Rs.50,000/- during the time when

vehicle remained idle pending repairs.

5. On perusal of judgment, it is seen that after

appreciating evidence on record insofar as amount

spent towards repairs namely Exs.P16 to P19 to the

extent of Rs.1,77,121/- and noting that vehicle was

five years old, tribunal deducted 20% towards

depreciation and awarded remaining amount of

Rs.1,41,721/- towards repairs. Merely on the ground

that insurance supervisor granted approval for

Rs.2,50,000/- does not entitle claimant for said

amount unless repairs for said amount are carried.

Further deduction towards depreciation of parts would

also be reasonable as parts would have suffered wear

and tear. Insofar as claim towards loss during the

period vehicle remained idle, claimant has not given

any specific account of loss occasioned. Claimant

neither stated daily running of vehicle nor account of

expenses towards making alternative arrangement,

though he might have sustained expenditure on that

account. In the absence of specific evidence, same has

to be assessed on notional basis. If a sum of Rs.250/-

is taken, amount awardable for 90 days, the period

during which vehicle was idle, compensation would be

Rs.22,500/-. Claimant is awarded a lump sum of

Rs.25,000/- towards same. Only to the said extent,

claimant would be entitled to relief.

6. In the result, I pass the following:

ORDER

i. Appeal is allowed in part.

ii. The award in MVC No.1480/2007 is modified, compensation enhanced from Rs.1,66,721/- as against Rs.1,41,721/- awarded by tribunal.

iii. Claimant would be entitled to interest at the rate of 6% per annum from the date of petition till deposit.

iv. It is clarified that apportionment of liability against respondent no.2- insurer would remain at 50%.

v. It is directed to deposit enhanced amount to the extent of its liability with interest within six weeks from the date of receipt of certified copy of this order.

Sd/-

JUDGE

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