Karnataka High Court
Kailash S/O Devu vs Divisional And Anr on 24 June, 2021
Author: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.201364/2018 (MV)
Between:
Kailash
S/o. Devu
Age : 20 years, Occ : Coolie
r/o. Akipur Sanna Tanda, Alipur
Tq. And District : Yadgir ... Appellant
(By Sriyuths Sanganabasava B Patil for
Veerangouda Malipatil, Advocates)
And:
1. Divisional Engineer Telecom BSNL
Staff Quarters, Rayapur
Dharwad 580 009
2. United India Insurance Company Ltd.
Dr. Jawali Complex, Super Market
Kalaburagi 585 101
Through its Divisional Manager ... Respondents
(By Sri Ameet Kumar Deshpande - Adv. For R1;
Sri Shivanand Patil - Adv. For R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to modify the judgment and
award dated 5.4.2018 in MVC No.148/2016 passed by the
Senior Civil Judge and MACT-II at Yadgir.
2
This appeal coming on for admission this day, the
Court delivered the following:-
JUDGMENT
The claimant being aggrieved by the judgment
and award dated 05.03.2018 passed by the Senior
Civil Judge and MACT II, Yadgir (hereinafter referred
to as 'the Claims Tribunal') in MVC No.148/2016 has
filed the appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (for short 'the MV Act') seeking for
enhancement of compensation.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal.
3. Facts giving rise to the filing of this appeal
briefly stated are that on 14.4.2016 at about 11.30
p.m, when the claimant and others were travelling in
a Tractor No.KA-33-TA-3937 and trolley No.4711, on
SP Office main road, near Mudnal cross; at that time,
the Tempo Traveller bearing Registration No.KA-25-N-
7048 came from behind, being driven by its driver in a
high speed and rash and negligent manner and
without blowing horn, dashed against the Trolley in
which the claimant and others were travelling and
caused the accident. On account of it, the claimant
sustained grievous injuries. Hence, he filed a claim
petition under Section 166 of the Act claiming
compensation.
3.1. The respondents being the owner and
insurer of the Tempo Traveller appeared and only
respondent No.1-insurer filed written statement
denying the averments made in the claim petition,
denied the age, occupation and earning of the
claimant. Further, it was contended that the driver of
the tempo traveller was not holding a valid and
effective driving licence at the time of accident
hence, prayed to dismiss the claim petition.
3.2. The Tribunal on the basis of the pleadings
framed issues.
3.3. The claimant in order to prove the claim,
examined himself as PW3 and in order prove the
disability examined the doctor as PW4 and got marked
documents.
The respondents have neither examined any
witnesses nor any documents were marked.
3.4. The tribunal after recording the evidence of
the parties and after considering the material on
record has recorded a finding that on 14.4.2016 at
about 11.30 p.m, when the claimant and others were
travelling in a Tractor No.KA-33-TA-3937 and trolley
No.4711, on SP Office main road, near Mudnal cross;
at that time, the Tempo Traveler bearing Registration
No.KA-25-N-7048 came from behind, being driven by
its driver in a high speed and rash and negligent
manner and without blowing horn, dashed against the
Trolley in which the claimant and others were
travelling and caused the accident. On account of it,
the claimant sustained grievous injuries. It further
held that the claimant is entitled for compensation and
consequently allowed the claim petition in part and
awarded a compensation of Rs.1,75,000/- with
interest at 6% p.a. from the date of petition till
realisation and further held that respondent Nos.1 and
2 being the owner and insurer of the Tempo Traveller
-offending vehicle are jointly and severally liable to
pay the aforesaid compensation to the claimant and
that respondent No.2-insuer to deposit the
compensation amount. The claimant being dissatisfied
with the compensation amount awarded by the
Tribunal has filed this appeal.
4. Heard the learned counsel for the claimant
and the learned counsel for the respondents.
5. Learned counsel for the claimant submits that
the tribunal has awarded a meagre compensation
under different heads. He submits that the claimant
has sustained grievous injuries. He further submits
that the Tribunal has taken the notional income of the
claimant at Rs.7,000/- which is on the lower side. He
further submits that in the absence of income proof,
the Tribunal ought to have taken the notional income
as per the chart issued by the KSLSA. As per the
chart the notional income would be Rs.8,750/-.
Hence, he prays to allow the appeal.
6. Per contra, learned counsel for the
respondent No.2-insurer supports the impugned
judgment and award passed by the Tribunal and
further submits that the compensation awarded by the
Tribunal is just and proper and does not call for any
interference and hence prayed to dismiss the appeal.
7. Heard and perused the records and
considered the submissions of the learned counsels for
the parties.
8. The point that arises for consideration in this
appeal is with regard to the quantum of
compensation.
9. The date, time, place and the manner in
which the accident took place are not in dispute. A
criminal case was registered against the driver of the
offending vehicle. In order to prove that the accident
was occurred due to the rash and negligent driving of
the offending vehicle, the claimant has produced the
police papers marked as exhibits P1 to P5. From the
perusal of the aforesaid documents, it disclose that
the accident was occurred due to the rash and
negligent driving of the driver of the offending vehicle.
10. Insofar as the disability is concerned, the
claimant has produced wound certificate marked as
exhibit P20. From the perusal of Ex.P20, it is clear
that the claimant has sustained grievous injury.
Further, the claimant has also produced the disability
certificate-Ex.P23 issued by the doctor-PW4. On the
basis of the evidence of PW4 and Ex.P23, the Tribunal
has assessed the disability of the claimant to the
extent of 7% to the whole body for the purpose of
determination of the compensation. The disability
assessed by the Tribunal is just and proper.
11. Insofar as the quantum of compensation is
concerned, the accident is of the year 2016. The
claimant has not produced income proof. In the
absence of any income proof, this Court has taken the
notional income as per the chart of the KSLSA i.e.
Rs.8750/-. The claimant was aged about 18 years as
on the date of accident and therefore, the multiplier
applies to the age group of 15 to 25 is '18'.
Therefore, the claimant is entitled to compensation of
Rs.1,32,300/- (8,750 x 12 x 18 x 7%) under the head
of 'loss of future income on account of permanent
disability'.
Considering the nature of injuries sustained by
the claimant, this Court reassess the compensation
under the following heads :-
Rs.
1. Injury pain and suffering : 40,000
2. Medical expenses : 41,119
3. Loss of income due to permanent
Physical disability :1,32,300
4. Food and nourishment : 10,000
5. Attendant charges : 2,000
6. Conveyance charges : 3,000
7. Loss of amenities : 25,000
8. loss of income during laid
Up period : 8,750
-------------
total :2,62,169
-------------
Thus, in all the claimant is entitled for a total
compensation of Rs.2,62,169/- as against the
compensation of Rs.1,75,000/- awarded by the
Tribunal. The enhanced compensation to which the
claimant is entitled would be Rs.87,169/- with interest
at 6% p.a. from the date of petition till realisation.
12. In view of the above discussion, the
following order is passed :
ORDER
1. The appeal is allowed in part;
2. The impugned judgment and award passed by
the Tribunal is modified;
3. The appellant is entitled to an enhanced
compensation of Rs.87,169/- with interest at
6% p.a. from the date of petition till realisation
in addition to the compensation awarded by the
Tribunal.
4. The respondent No.2-insurer is directed to
deposit the enhanced compensation amount
along with accrued interest within a period of
eight weeks from the date of receipt of a copy of
this judgment.
Sd/-
JUDGE
rs
