Mansoor Ali vs Vishwanath And Anr
2021 Latest Caselaw 2185 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 10TH DAY OF JUNE, 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


              MFA No.200032/2018 (MV)

Between:

Mansoor Ali S/o Mashak Sab,
Aged: 48 years, Occ: Agriculture Coolie,
R/o Koravi, Tq. Chincholi,
Dist. Kalaburagi-585 307.
                                           ... Appellant
(By Sri. Sanjeev Patil, Advocate)

And:

1.     Vishwanath S/o Manik,
       Age: Major, Occ: Owner of Auto
       No.KA.32.C.1153,
       R/o Sulepeth, Tq. Chincholi,
       Dist. Kalaburagi-585307.

2.   Bharati Axa General Insurance Co. Ltd.,
     through its Manager,
     Opp: Vidya Nagar P.S., Vidya Nagar,
     1st Floor, Central Building,
     Hubli-580070.
                                        ... Respondents
(By Sri. C.S.Kalburgi, Advocate for R2;
Notice to R1 dispensed with v/o dated 23.03.2018)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to       call for records and
modify the judgment and award dated 28.10.2017, passed
by the learned Senior Civil Judge & MACT, Chincholi in MVC
No.102/2015, by enhancing the compensation amount to
the tune of Rs.4,50,000/- and also enhance the interest
payable by the respondents on the compensation amount,
and further be please to allow this appeal filed by the
appellant.


      This appeal coming on for admission this day, the
Court delivered the following:-


                       JUDGMENT

This appeal is filed by the claimant under Section

173(1) of the Motor Vehicles Act (for short 'the Act')

being aggrieved by the judgment and award dated

20.10.2017 passed by Senior Civil Judge and MACT,

Chincholi, (for short hereinafter referred to as 'the

Tribunal') in MVC No.102/2015.

2. Parties will be referred to as per their

ranking before the Claims Tribunal.

3. Brief facts leading rise to filing of this

appeal is that on 07.04.2014 at about 10.00 am the

claimant and others were proceeding in Auto bearing

Reg.No.KA-32-C-1153 from Sulepeth to Chincholi

when the said Auto came near bridge on Sulepeth-

Chincholi Road, the driver of the Auto drove the same

in rash and negligent manner lost control over the

said Auto, due to this the Auto turtle down, the

claimant sustained fractures and injuries on the other

parts of the body. The claimant was shifted to

Government Hospital, Chincholi and thereafter

referred to Gulbarga Hospital for higher treatment.

And claimant was in patient from 07.04.2014 to

14.04.2014 and the claimant was doing agricultural

coolie work and earning Rs.10,000/- per month. Due

to accident he is unable to do any work as he was

doing earlier. The accident took place due to rash and

negligent driving of driver of Auto rickshaw bearing

Reg.No.KA-32-C-1153. The respondent No.1 being

the owner of the Auto rickshaw and respondent No.2

being the insurer of the Auto rickshaw.

4. The respondents are jointly and severally

liable to pay the compensation. Hence, the claimant

has filed a claim petition under Section 166 of M.V.Act

for the injuries sustained by him in road traffic

accident.

5. The respondent No.1 has not filed a written

statement. The respondent No.2 has filed a written

statement denying the averments made in the claim

petition and also denied about the manner of accident,

injuries sustained by the claimant, the age, avocation

and income of the claimant. It is further contended

that at the time of accident 7 persons were traveling

in the said auto rickshaw and the passengers were

sharing the seat of Auto driver and due to which she

lost control over the Auto and Auto turtle down. It is

not for the rash and negligent driving of the auto

driver. It is further contended that the owner of the

Auto has violated the terms of policy and insurance

company is not liable to pay compensation. It is

further contended that the driver of the Auto was not

having valid driving licence as on the date of accident.

Hence, prays to dismiss the claim petition against

respondent No.2.

6. The tribunal on the basis of the pleadings

has framed the following issues:

(1) Whether the petitioner proves that he has sustained grievous injuries in the motor vehicle accident that occurred on 07.04.2014 at about 10.00 a.m. near Bridge, on Sulepeth-Chincholi main road, on account of rash and negligent driving of Auto bearing Regn.No.KA-32/C-1153 by its driver as alleged?

(2) Whether respondent No.2 proves that the driver of the Auto was not having

valid and effective driving licence to drive the Auto on the date of incident?

(3) Whether the petitioner is entitled for the compensation? If so, to what extent and from whom?

(4) What order or Award?

7. The claimant, in order to prove the claim

petition, himself examined as PW2 and also in order to

prove the disability examined as PW3-Dr.Ramakanth

Kulkarni and got marked 16 documents as Ex.P1 to

Ex.P16. Respondents have not adduced either oral or

documentary evidence.

8. The tribunal after recording the evidence

and after considering the materials on record have

recorded the finding that the claimant has proved that

he has sustained grievous injuries in the road traffic

accident that occurred on 07.04.2014 on Sulepeth-

Chincholi main road on the account of rash and

negligent driving of Auto bearing Regn.No.KA-32/C-

1153 by its driver and further held that the claimant is

entitled to compensation and awarded global

compensation of Rs.50,000/- with 6% interest from

the date of petition till its realization.

9. The claimant being dissatisfied with the

compensation awarded by the Tribunal has filed this

appeal seeking for enhancement of compensation.

10. Heard the learned counsel appearing for

the claimant and also learned counsel appearing for

the respondent No.2.

11. The learned counsel for the claimant

submits that tribunal has committed an error in

awarding global compensation without properly

appreciating the material on record, wherein the PW3

has assessed the disability to the whole body 20% to

25% and the tribunal without considering the evidence

of PW3 and Ex.P14 disability certificate has awarded a

global compensation. Hence, he prays to allow the

appeal.

12. Per contra, the learned counsel appearing

for the respondent No.2 support the impugned

judgment and award passed by the tribunal. He

further submits that the compensation awarded by the

tribunal is just and proper and he further submits that

impugned judgment and award does not call for any

interference. Hence, he prays to dismiss the appeal.

13. Heard and perused the records and also

consider the submissions of the learned counsels

appearing for the parties.

14. The point that arise for consideration is in

regard to quantum of compensation.

15. It is not in dispute that the claimant was

traveling in a Auto rikshaw bearing Reg.No.KA-32-C-

1153 and the said Auto met with an accident on

07.04.2014 at about 10.00 a.m. and the claimant has

sustained grievous injuries in the said accident. In

order to prove that the accident was occurred due to

rash and negligent driving of the driver of the Auto

rikshaw, the claimant has produced police papers and

they are got marked Ex.P1 to Ex.P6.

16. Insofar as the disability is concerned, the

claimant has produced Ex.P14-disability certificate

issued by PW3 and in the evidence of PW3 deposed

that the claimant has sustained disability of chest is

50% and 20% to 25% to the whole body and as per

the wound certificate, the claimant has sustained 7th

and 8th ribs fracture. From the perusal of Ex.P14, is

not clear in respect of disability of the claimant and

further there is no loss of future earning capacity.

The tribunal has awarded a global compensation of

Rs.50,000/- which is on the lower side. The nature of

injuries sustained by the claimant, it could be

appropriate to award a global compensation of

Rs.1,00,000/-.

17. In view of the above discussion, I proceed to pass the following:

ORDER

The appeal is partly allowed.

The judgment and award passed in MVC No.102/2015 dated 28.10.2015 by the tribunal is modified.

The claimant is entitled for additional compensation of Rs.50,000/- in addition to the compensation awarded by the tribunal with interest at 6% per annum from the date of filing the petition till its realization.

Respondent No.2-Insurance company is directed to deposit the compensation amount within a period of eight weeks from the date of receipt of a copy of this judgment.

Sd/-

JUDGE SMP