Raghavendra vs Pandit And Anr
2021 Latest Caselaw 6236 Kant

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         IN THE HIGH COURT OF KARNATAKA

                 KALABURAGI BENCH

  DATED THIS THE 16TH DAY OF DECEMBER, 2021

                       BEFORE

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

             MFA.No.201498/2017 (MV)

BETWEEN:


RAGHAVENDRA S/O IRANNAGOUDA
AGE: 30 YEARS OCC: DRIVER
R/O: RASTAPR TQ: SHAHAPUR
DIST: YADGIR
NOW R/O: CIB COLONY,
KALABURAGI.
                                      ... APPELLANT


(BY SMT. SRIDEVI J. TUPPAD, ADVOCATE)



AND:



01.    PANDIT S/O PAPAYYA GUTTEDAR
       AGE: 42 YEARS OCC: OWNER OF VEHICLE
       R/O: H.NO.134, RAVOOR VILALGE
       TQ: CHITTAPUR
       DIST: KALABURAGI - 585 102.
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02.   UNITED INDIA INSURANCE CO. LTD.,
      THROUGH ITS DIVISIONAL MANAGER,
      P.B.NO.47, 2ND FLOOR, DR. JAWALI COMPLEX
      SUPER MARKET, KALABURAGI-585 102.

                                              ... RESPONDENTS

(VIDE ORDER DATED 15.12.2018 NOTICE TO R1 IS
DISPENSED WITH
SMT. ANURADHA M. DESAI, ADVOCATE FOR R2)



      THIS MISCELLANEOUS FIRST               APPEAL    IS   FILED

UNDER SECTION 173 (1) OF THE M.V. ACT PRAYING TO

CALL FOR THE RECORD IN THE MVC.NO.578/2015 PASSED

BY    THE    III   ADDITIONAL       SENIOR    CIVIL   JUDGE   AT

KALABURAGI AND TO ALLOW THIS APPEAL AND AWARD

COMPENSATION OF `.15,00,000/- ALONG WITH INTEREST

12% P.A. BY MODIFYING THE JUDGMENT AND AWARD OF

THE    III    ADDITIONAL    SENIOR           CIVIL    JUDGE   AT

KALABURAGI DATED 24.06.2017 IN MVC.NO.578/2015

AND ETC.,


      THIS APPEAL COMING ON FOR ADMISSION THIS

DAY, THE COURT DELIVERED THE FOLLOWING:-
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                            JUDGMENT

This appeal is filed by the appellant - claimant

aggrieved by the judgment and order dated 24.06.2017

passed in MVC.No.578/2015 by the III Additional Senior

Civil Judge and MACT - Kalaburagi (henceforth referred as

'Tribunal').

02. The brief facts leading upto filing of the present

appeal are that on 11.03.2015 at about 08.00 p.m., the

claimant after attending Jatra of Lord Sharan Basaveshwar

at Kalaburagi was returning to Sirnoor village, near

NH.No.218 road, Sirnoor, while crossing the road, at that

time, the rider of the TVS XL motorcycle bearing

Reg.No.KA-32-U-6519 came in a rash and negligent

manner with high speed and dashed to the claimant. Due

to this impact, the claimant sustained grievous injuries and

was shifted to Dr. P.G. Shaha Hospital at Kalaburagi as

in-patient from 11.03.2015 to 22.03.2015. The claimant

has undergone surgery on 13.03.2015 and spent

`.1,00,000/- towards treatment.

03. Thereupon, the claimant has filed a claim

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

compensation on the premise that he was hale and healthy

prior to the accident and was earning `.12,000/- per

month by doing driver work. Due to the accident, he is not

able to carry out his routine work as he was doing prior to

the accident. The accident occurred due to negligence on

the part of the rider of the motorcycle which belonging to

respondent No.1 and insured with respondent No.2. Hence,

they are jointly and severally liable to pay the

compensation.

04. Upon service of notice, the respondents

appeared through their counsel. The respondent No.1 did

not file the written statement. The respondent No.2 has

filed the written statement denying the age, income and

occupation of the claimant. It was contended that the

accident had occurred due to negligent on the part of the

claimant himself, as he was crossing the road without

taking proper care and caution himself. That the driver of

the motorcycle was not holding a valid and effective

driving license as on the date of the accident.

05. On the above said pleadings, the Tribunal has

framed the issues and recorded the evidence. The claimant

has been examined himself as PW.1 and Dr. Ravi E.

Shivaraya has been examined as PW.2 and got exhibited

twelve documents as Exs.P.1 to Ex.P.12. No oral or

documentary evidence produced by the respondents.

06. The Tribunal based on the material evidence

held that the accident in question had occurred on account

of rash and negligent riding by the rider of the motorcycle

causing accident resulted in grievous injuries to the

claimant. Consequently, held that the claimant was

entitled for compensation of `.1,99,500/- along with

interest at the rate of 6% from the date of petition till the

payment under the following heads.

 Sl.                  Heads                      Amount
 No.
01       Towards pain and suffering         `.00,30,000/-
02       Towards medical expenses                   -
03       Towards future income              `.01,28,520/-
04       Towards attendant's charges,       `.00,10,000/-
         food and conveyance
05       Towards loss of amenities and      `,00,10,000/-
         nutrition food
06       Towards      loss of   income      `.00,21,000/-
         during      the   period    of
         treatment
         Total                              `.01,99,500/-

07. Being aggrieved by the same, the claimant is

before this Court for enhancement of compensation.

08. The learned counsel for the claimant

reiterating the grounds urged in the appeal memo

submitted that the claimant has suffered permanent

disability at 29% as assessed by the PW.2 - Doctor, while

Tribunal has taken only 9%. He further submits that the

Tribunal has assessed the notional income of the claimant

at `.7,000/-, while the claimant was earning `.12,000/-

per month. That the Tribunal has not awarded any

compensation under the heads of medical expenses and

future medical expenses. That award of compensation

under the other heads is on lower side. Hence, seeks for

enhancement of compensation.

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

insurance company justifying the judgment and award

passed by the Tribunal submits that the claimant has not

furnished the documents with regard to medical expenses

alleged to have been expended by the claimant. As such,

the Tribunal cannot be found fault with for not awarding

compensation under the said head. With regard to other

heads, the compensation awarded by the Tribunal is just

and proper, the same does not warrant any interference.

Hence, sought for dismissal of the appeal.

10. Heard the learned counsel for the parties and

perused the records.

11. The only point that would arise for

consideration is that:-

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

12. The accident in question resulting in grievous

injuries to the claimant is not in dispute. As per the Ex.P.6

the claimant has suffered fracture of femure and has

undergone surgery. PW.2 - Doctor has issued disability

certificate at Ex.P.10 has assessed the disability to the

extent of 29% to the whole body. Thus, the claimant has

suffered grievous injuries and taken treatment as evident

from aforesaid two documents.

13. Adverting to the issue with regard to income of

the claimant no material evidence is produced by the

claimant to justify the claim of the claimant that he was

earning `.12,000/- per month as a driver. This Court, in

the absence of any material with regard to income of the

victims of road traffic takes into consideration the chart

prepared by Karnataka State Legal Services Authority.

According to which the notional income of the victim of

road traffic accident occurred in the year 2015 is fixed at

`.08,000/- per month. In the instant case the accident was

occurred on 11.03.2015. Therefore, the notional income of

the claimant has to be taken at `.08,000/- per month.

14. Considering the nature of injuries, the

disability assessed by the Tribunal at 9% is maintained as

it is just and proper. As the age of claimant is 30 years,

the multiplier to be applied would be at 17. Hence, the loss

of future income would `.1,46,880/- (`.8,000/- x 12 x 17 x

9%).

15. The Tribunal has awarded `.30,000/- under the

head of pain and suffering. An addition of `.20,000/- is

awarded under the said head. Hence, the claimant is

entitled for `.50,000/- towards pain and suffering.

16. The Tribunal has not awarded any amount

under the head of medical expenses on the premise that

the claimant has not produced any material evidence. The

learned counsel for the claimant has furnished the

documents in the nature of medical bills aggregated

`.62,253/-. A perusal of the said documents, it appears

that the claimant indeed to incurred expenses towards

treatment of fracture which involving surgery and inserting

rod. Therefore, such medical bills cannot be suspected by

considering the nature of injuries suffered. Therefore,

under the facts and circumstances of the case, this Court is

of the opinion that the said document be taken on record

and an amount of `.50,000/- be awarded under the head

of medical expenses which amount to just and reasonable,

by considering the nature of treatment taken by the

claimant.

17. The Tribunal has awarded `.10,000/- towards

attendants charges, food and conveyance, the same is

maintained, as it is just and proper. The Tribunal has

awarded `.10,000/- towards loss of amenities. The same

enhanced to `.15,000/-, making the claimant entitled for

`.25,000/- towards loss of amenities. Since, the notional

income is assessed at `.8,000/- per month, a sum of

`.24,000/- (`.8,000x3) is awarded towards loss of income

during the laid up period. The Tribunal has not awarded

any amount towards future medical expenses. Since, the

claimant has undergone a surgery. Hence, the claimant is

entitled for `.30,000/- towards future medical expenses.

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    Towards pain and suffering          `.   30,000/-          `50,000/-
  02    Towards medical expenses                        -          `50,000/-
  03    Towards future income               `. 1,28,520/-          `46,880/-
  04    Towards          attendant's        `.   10,000/-          `10,000/-
        charges,       food     and
        conveyance
  05    Towards loss of amenities            `   10,000/-          `25,000/-
        and nutrition food
  06    Towards loss of income               `   21,000/-          `24,000/-
        during    the    period   of
        treatment
  07.   Future medical expenses                         -          `30,000/-
        Total                               ` 1,99,500/-        `3,35,880/-

19. Hence, the point No.1 raised for consideration

is answered accordingly.

20. In the result, the following;

ORDER

(i) The MFA.No.201498/2017 filed by the appellant -

claimant, is partly allowed.

(ii) The judgment and order dated 24.06.2017 passed in MVC.No.578/2015 by the III Additional Senior Civil Judge and MACT - Kalaburagi, is modified.

(iii) The claimant is held entitled for a total compensation of `.3,35,880/- together interest at the rate of 6% p.a. from the date of claim petition till payment.

(iv) The respondent No.2 - insurance company is directed to pay compensation with interest at the rate of 6% p.a. from the date of claim petition till the date of payment, within a period of three months from the date of receipt of certified copy of this judgment.

Sd/-

JUDGE

KJJ