Karnataka High Court
Mukund S/O Dhaku Chavan vs Madhuraya @ Mahadevi Patil And Ors on 21 December, 2021
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
M.F.A No.201053/2017 (MV)
BETWEEN:
MUKUND S/O DHAKU CHAVAN
AGE: 27 YEARS, OCC: LABOUR & AGRI.
R/O NAMU NAYAK TANDA, KALMUD
TQ. & DIST. KALABURAGI - 585102
... APPELLANT
(BY SRI GANESH NAIK, ADVOCATE)
AND
1. MADHURAYA @ MAHDEV PATIL
S/O SHIVASHARANAPPA,
AGE: 29 YEARS, OCC: DRIVER
R/O KALLAHANGARGA,
TQ. & DIST. KALABURAGI - 585101
2. DEVIDAS S/O BHIMRAO SURYAVANSHI
AGE: 37 YEARS, OCC: OWNER OF TEMPO
TRAX, R/O RAM NAGAR, HUMNADABD ROAD
KALABURAGI - 585102
3. THE MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR DR. JAWALI COMPLEX,
SUPER MARKET, KALABURAGI
... RESPONDENTS
(BY SRI. S.S.ASPALLI, ADVOCATE FOR R-3;
V/O DATED 14.02.2020 R-1 & 2 DISPENSED WITH)
2
THIS APPEAL IS FILED UNDER SECTION 173 (1) OF
M.V. ACT, PRAYING THAT THIS HON'BLE COURT MAY BE
PLAEASED TO ALLOW THE APPEAL, THE JUDGMENT AND
AWARD DATED 07.03.2017 IN MVC NO.10/205 PASSED BY
THE II ADDL. SENIOR CIVIL JUDGE AND M.A.C.T, MAY
KINDLY BE MODIFIED BY ENHANCING THE
COMPENSATION AS CLAIMED N THE CLAIM PETITION, IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal is filed under Section 173(1) of the Motor
Vehicles Act, 1988 (for short 'M. V. Act') by the
appellant/claimant against the judgment and award dated
07.03.2017 passed in MVC No.10/2015 on the file of the II
Additional Senior Civil Judge and MACT, Kalaburagi (for
short 'Tribunal').
2. Brief facts leading up to filing of the present
appeal are that, on 14.08.2014, at about 12.00 p.m., the
claimant along with his mother were proceeding from
Namu Nayak Tanda to Kamalapur for the purpose of his
work and when he went near petrol pump for filling the
petrol to his motorcycle bearing registration
No.KA-32/EE-3750, at that time, a tempo trax cruiser
bearing registration No.KA-32/N-3239 driven by its driver
in high speed, in rash and negligent manner, came from
opposite direction from Kalaburagi to Kamalapur and
dashed against the motorcycle of the claimant/appellant
causing the accident. Due to the impact, he sustained
fractures and was treated at Kamareddy Hospital,
Kalaburagi.
3. Thereupon, the appellant/claimant 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 `6,000/- per month
from the agricultural activities and due to the injuries
suffered by him in the accident, he is unable to carry out
his day to day work and that the accident was caused on
account of rash and negligent driving of the offending
tempo by its driver, which was insured with respondent
No.3 - insurance company. Therefore, respondent Nos.1
to 3 were jointly and severally liable to pay the
compensation.
4. Upon service of notice, respondent Nos.1 to 3
appeared and respondent Nos.1 and 2 did not file
statement of objections. Respondent No.3 - insurance
company filed its statement of objections denying the
petition averments and also mode and manner of the
accident. It was contended that the driver of the offending
tempo was not holding valid and effective driving licence
and there was violation of the terms and conditions of the
policy. Hence, sought for dismissal of the claim petition.
5. Based on the pleadings, the Tribunal framed
issues and recorded evidence. The claimant examined
himself as PW.1 and one Dr.Viresh Kumar has been
examined as PW.2 and exhibited 20 documents as Exs.P1
to P20. No witness has been examined on behalf of the
respondents except marking the policy of insurance as
Ex.R1.
6. On evaluation of the evidence, the Tribunal
held that the accident in question had occurred on account
of rash and negligent driving of the offending tempo by its
driver resulting in injuries to the appellant/claimant and
consequently, held that the appellant/claimant is entitled
for total compensation of `3,70,000/- together with
interest at 6% per annum from the date of petition till its
realization. Regarding the driver of the offending tempo
not having valid driving licence, the Tribunal negated the
said contention. Aggrieved by the same, the
appellant/claimant is before this Court seeking
enhancement of the compensation.
7. Heard the learned counsel for the
appellant/claimant and the learned counsel for the
respondent No.3 - insurance company.
8. The learned counsel for the appellant/claimant
reiterating the grounds urged in the appeal memorandum
submitted that the Tribunal has not taken into
consideration the nature of injuries suffered by the
appellant/claimant, which have resulted in the disability at
27.5% as assessed by the doctor. However, the Tribunal
has assessed the same at 15%, which according to him is
on the lower side. He submits that the award of
compensation including assessment of notional income of
the injured/claimant is on the lower side. Therefore, he
seeks for allowing of the appeal by enhancing the
compensation.
9. On the other hand, the learned counsel for
respondent No.3 - Insurance Company justifying the
judgment and order passed by the Tribunal submits that
the Tribunal has rightly assessed the compensation
payable to the appellant/claimant based on the material
evidence and therefore, no interference is warranted.
10. On consideration of the submissions made by
the learned counsel for the parties, the only point that
arises for consideration is:
"Whether the appellant/claimant has
made out a case for enhancement of
compensation?"
11. The accident in question involving the
motorcycle and the offending tempo causing injuries to the
appellant/claimant is not in dispute. The
appellant/claimant has suffered the fracture of mid shaft of
femur and fracture of right patella. The doctor - PW.2 has
issued the disability certificate as per Ex.P18 assessing the
whole body disability of the appellant/claimant at 27.5%.
However, the Tribunal on consideration of the nature of
injuries and the treatment being taken by the
appellant/claimant, has assessed the disability at 15% to
the whole body. The said assessment of disability appears
to be just and proper, warranting no interference. The
Tribunal has assessed the notional income of the claimant
at `6,000/- per month in the absence of any material
evidence with regard to the income of the
appellant/claimant. This Court in the absence of any
evidence with regard to the income of the victims of the
road traffic accident, takes into consideration the chart
prepared by the Karnataka State Legal Services Authority.
As per the chart, the notional income of the victims of the
road traffic accident for the year 2014 has been fixed at
`7,500/- per month and in the instant case, the accident
had occurred on 14.08.2014. As such, the same is taken
into consideration in the present case as well instead of
`6,000/- per month as taken by the Tribunal. Since the
appellant/claimant is aged about 25 years as on the date
of the accident, the proper multiplier applicable is '18'.
Thus, the loss of future income of the appellant/claimant
comes to `2,43,000/- (`7,500x12x18x15%).
12. The Tribunal has awarded `40,000/- towards
pain and suffering. An additional sum of `10,000/- is
awarded by making it `50,000/-.
13. The Tribunal has awarded `96,549/- towards
medical expenses. The same is maintained as just and
proper.
14. The Tribunal has awarded `11,000/- towards
attendant, food and conveyance charges. The same is
enhanced by `4,000/- by making it `15,000/-.
15. The Tribunal has awarded `10,000/- towards
loss of amenities and nutrition. The said sum is enhanced
by `25,000/- making it `35,000/-.
16. Since the notional income of the
appellant/claimant is assessed at `7,500/- per month, loss
of income during laid up period for a period of three
months comes to `22,500/- (`7,500x3) instead of
`18,000/- awarded by the Tribunal. Therefore, the
compensation awarded by the Tribunal deserves to be re-
determined and re-calculated as follows:
Heads By Tribunal By this Court
(In `) (In `)
Loss of future income 1,94,400/- 2,43,000/-
Pain and suffering 40,000/- 50,000/-
Medical expenses 96,549/- 96,549/-
Attendant, food and 11,000/- 15,000/-
conveyance charges
Loss of amenities and 10,000/- 35,000/-
nutrition food
Loss of income during laid 18,000/- 22,500/-
up period
Total 3,69,949/- 4,62,049/-
Rounded off 3,70,000/-
17. Thus, the appellant/claimant is entitled for
enhanced compensation of `4,62,049/- instead of
`3,70,000/- awarded by the Tribunal together with interest
at 6% per annum from the date of petition till its
realization. Hence, the point raised above is answered
accordingly and following:
ORDER
i) The appeal filed by the appellant -
claimant is partly allowed.
ii) The judgment and award of the
Tribunal in MVC.No.10/2015 dated
07.03.2017 is modified.
iii) The appellant/claimant is held
entitled for enhanced compensation
of `4,62,049/- instead of
`3,70,000/- awarded by the Tribunal
together interest at the rate of 6%
p.a. from the date of claim petition
till its payment.
iv) The respondent No.3 is liable to pay
the above compensation within a
period of two months from the date
of receipt of a certified copy of this
judgment.
v) The order regarding deposit and
release made by the Tribunal shall
remain unaltered.
Sd/-
JUDGE
Srt
