Karnataka High Court

Veeresh vs Abdul Khaleel And Ors on 21 December, 2021

Bench: M.G.S.Kamal

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         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

             MFA No. 200344/2018 (MV)

BETWEEN:

VEERESH
S/O VENKATSWAMY
AGE:29 YEARS,
OCC: B.SC.III & WORKED
AS TECHNICAL AT VASAN EYE CARE
HOSPITAL, DEVANAGERE,
NOW NIL, R/O H.NO.1-1-73,
UADYNAGAR, S.C.RAILWAY STATION,
RAICHUR-584101
                                       ...APPELLANT

(BY SMT PATIL SHANTABAI SUBHASH, ADVOCATE)

AND:

1.     ABDUL KHALEEL
       S/O RAJA AHAMED,
       AGE:MAJOR
       OCC:DRIVER OF MARUTI SWIFT
       VEHICLE BEARING NO.AP.22/AN-3178,
       R/O H.NO.4-2-94, SHER-ALI STREET,
       GADWAL,
       MAHABOOBNAGAR DISTRICT-509125
                         2




2.   PRASANTI N.S W/O DINNI BHARGAVA
     AGE:MAJOR,
     OCC:OWNER OF MARUTHI SWIFT
     VEHICLE BEARING NO.AP.22/AN-3178,
     R/O H.NO.2-5-45,
     RAJA VEEDHI, GADWAL RURAL
     MEHABOOBNAGAR,DIST:509125

3.   BAJAJA ALLIANZ GENERAL
     INSURANCE CO. LTD.,
     GE PLAZA AIRPORT ROAD,
     YERAWADA, PUNE-411006
     BY ITS BRANCH MANAGER,
     BAJAJ ALLIANZ
     GENERAL INSURANCE CO. LTD.,
     OPP.WOMENS     COLLEGE,
     1ST CROSS, GANDHINAGAR,
     BELLARY- 583101
     VALID FROM 6-8-2013 TO 5-8-2014
     POLICY NO.OG-14-1801, 1801 00029824
                                  ...RESPONDENTS

(BY SRI SUDARSHAN M. ADVOCATE)

    MFA FILED U/S. 173(1) OF MV ACT, BY THE
ADVOCATE FOR APPELLANT PRAYING THAT THIS HON BLE
COURT MAY BE PLEASED TO- CALL FOR RECORDS AND
MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED-
05.08.2017 PASSED BY THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC., AT RAICHUR IN MVC NO.88/2016

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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                         JUDGMENT

The present appeal MFA.No.200344/2018 is filed by

the claimant under Section 173(1) of the Motor Vehicles

Act, 1988 (for short 'M. V. Act') against the judgment and

award dated 05.08.2017 passed in MVC No.88/2016 on the

file of the II Additional Senior Civil Judge and JMFC,

Raichur (for short 'Tribunal').

2. The facts leading to filing of the present appeal

briefly stated are that, on 19/05/2014 at about 11-45

a.m., the claimant along with his friend was traveling in a

motorcycle bearing Reg.No.KA-36/S-8756 to go to Gadwal.

When they reached near Raichur-Gadwal road, at that

particular juncture, the driver of the Swift Car bearing

Reg.No.AP-22/AN-3178, the respondent No.1 herein came

from opposite direction and dashed against the motorcycle

of the claimant causing the accident. Due to the impact,

the claimant suffered injuries and he was treated at

Navadoya Medical College Hospital, Raichur and later

M.S.Ramaiah Hospital, Bengaluru.

3. Thereupon, the claimant filed a claim petition

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

Rs.55,00,000/- on the premise that he was aged about 28

years, was doing B.Sc Degree. Prior to the accident he

was working as operation theatre technician in Vasan Eye

Care Hospital, Devanagera and was earning Rs.11,800/-

per month. Due to the accident and injuries suffered, he is

unable to do his regular work. That the accident having

taken place due to negligence on the part of the

respondent No.1 and respondent No.2 and 3 being owner

and insurer of the offending vehicle were liable to pay the

compensation. The case against respondent No.1 was

dismissed.

4. Upon service of notice, respondent Nos.2 and 3

entered appearance and filed statement of objection

denying the petition averments and mode and manner of

accident. Respondent No.3 contended that the accident

had occurred on account of rash and negligent riding of the

motorcycle by the claimant himself, there was no

negligence on the part of the respondent No.1 and except

that the claimant was not holding valid and effective

driving licence as on the date of accident, thereby he has

violated the terms and conditions of the policy. Hence,

sought for dismissal of the claim petition.

5. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and Dr.Harishmurthy

been examined as PW.2 exhibited 89 documents marked

as Exs.P1 to P89. On the other hand, official of the

insurance company has been examined as RW.1 and

exhibited copy of policy as Ex.R1. Based on the evidence of

the parties, the tribunal held that the accident in question

had occurred on account of rash and negligent driving of

the Car by its driver and consequently held that the

claimant is entitled for compensation as follows:

Future loss of earning Rs.4,01,880/-

       income
       Pain & sufferings                  Rs.5,000/-
       Attendant charges                  Rs.5,000/-
       Food & nourishment                 Rs.5,000/-
       Medical expenses                  Rs.39,000/-
       Total                           Rs.4,55,880/-

6. The Tribunal directed the insurance company

to pay the compensation together with interest at 6% per

annum from the date of petition till realization. Aggrieved

by the same, the claimant is before this Court seeking

enhancement of the compensation.

7. Heard the learned counsel for the parties.

8. Smt. Patil Shantabai Subhash, learned counsel

for the appellant/claimant reiterating the grounds urged in

the appeal memorandum submitted that the present

petition is restricted only to the extent of quantum of

compensation under the heads of 'pain and suffering, food

and nourishment'. She further submits that the tribunal

has not awarded any compensation under the heads of

loss of amenities and also with regard to compensation

during laid up period and conveyance charges. No

challenge is made with regard to the disability or

assessment of income is concerned. Hence, sought for

enhancement of compensation.

9. In that view of the matter, learned counsel for

the insurance company submits that considering the

nature of injuries suffered by the claimant and materials

available on record the compensation awarded by the

tribunal is just and proper and it does not warrant any

interference.

10. Considering the submissions made by the

learned counsel for the appellant and respondent No.3-

insurance company, the only point that arises for

consideration is:

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

11. Since the accident in question and nature of

injuries suffered by the claimant being not disputed the

only point to be seen is that the tribunal is justified in

awarding compensation under the aforesaid heads. The

claimant has suffered the following injuries on account of

the accident as found at Ex.P13 - wound certificate:

"1. Fracture of leg right leg hip joint,

2. Injuries to right knee"

12. As per the disability certificate, total disability

of the claimant is assessed at 46%. However, the tribunal

has assessed the disability at 20% and the same has not

been challenged by the petitioner as stated above. The

aforesaid documents are taken into consideration only to

the extent of the nature of injuries mentioned therein.

13. Considering the nature of injuries particularly

central dislocation of right hip, the claimant must have

been advised for bed rest for a period of three months. In

view of the nature of injuries and expected period of

recovery, the compensation awarded by the tribunal under

the heads of pain and sufferings is enhanced to

Rs.30,000/- from Rs.5,000/-, attendant charges from

Rs.5,000/- to Rs.10,000/- and food and nourishment from

Rs.5,000/- to Rs.10,000/-. The tribunal has not awarded

compensation under the head of amenities, hence the

claimant is entitled to a compensation of Rs.30,000/-

towards amenities. Since the tribunal has not awarded

any compensation under the head of loss of income during

laid up period, a sum of Rs.29,550/- (9,850/- x 3 months)

is awarded. Considering the nature of injuries a sum of

Rs.30,000/- is awarded under the head of conveyance

charges. The compensation awarded under the head of

medical expenses by the tribunal is retained as it is.

14. Thus, the claimant is entitled to enhanced

compensation as follows:

Heads                       By Tribunal       By this Court
Future loss of income         Rs.4,01,880/-     Rs.4,01,880/-
Pain and suffering               Rs.5,000/-       Rs.30,000/-
Attendant charges                Rs.5,000/-       Rs.10,000/-
Food & nourishment               Rs.5,000/-       Rs.10,000/-
Medical expenses                Rs.39,000/-      Rs.39,000/-
Loss of amenities                         -       Rs.30,000/-
Conveyance charge                         -       Rs.10,000/-
Loss of income during                     -       Rs.29,550/-
laid up period
Total                         Rs.4,55,880/-     Rs.5,60,430/-

15. On the enhanced compensation, the claimant

is entitled for interest at 6% per annum from the date of

claimant till realization. Hence, the above point is

answered and following order is passed:

ORDER

a. The appeal in MFA.No.200344/2018 filed

by the claimant/appellant is allowed-in-

part and the judgment and order of the

Tribunal in MVC No.88/2016 is modified.

b. The appellant/claimant is entitled for

enhanced compensation of Rs.5,60,430/-

instead Rs.4,55,880/- awarded by the

Tribunal together with interest at 6% per

annum from the date of petition till its

realization.