The Divisional Manager vs Hanamanthi And Anr
2021 Latest Caselaw 3522 Kant

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

   DATED THIS THE 26th DAY OF OCTOBER, 2021

                       BEFORE

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

              MFA No.202394/2019 (MV)

Between:

THE DIVISIONAL MANAGER,
ORIENTAL INS. CO.LTD.,
1ST FLOOR, N.G.COMPLEX,
OPP:MINI VIDHAN SOUDHA,
KALAUBURAGI - 585102.
                                              ... Appellant
(By SMT.PREETI PATIL MELKUNDI, Advocate)

And:

1. HANAMANTHI W/O DYAVAPPA,
   AGE: 46 YEARS, OCC: AGRICULTURE,
   NOW NIL, R/O: HALAGADLA, TQ: JEWARGI,
   DIST: KALABURAGI - 585101.

2. SHIVAMANAPPA S/O SIDDAPPA,
   AGE: 33 YEARS, OCC: DRIVER,
   R/O: HALAGADLA, TQ: JEWARGI,
   DIST: KALABURAGI - 585101.
                                           ... Respondents

(By Sri.CHAITANYAKUMAR C.M. ADV., FOR R1
R2 IS SERVED)


       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 THE
APPELLANT PRAYING TO CALL FOR THE RECORDS AND ALLOW
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THE ABOVE APPEAL BY          SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DT: 17.07.2019 IN MVC.NO.264/2018
PASSED    BY   THE   SENIOR    CIVIL   JUDGE   AND   MACT   AT
SHORAPUR.


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


                            JUDGMENT

MFA No.202394/2019 is filed under Section 173(1)

of the Motor Vehicles Act against the Judgment and Award

dated 17.07.2019 passed in MVC No.264/2018 on the file

of Senior Civil Judge and MACT, Shorapur.

2. Facts leading to the filing of the appeal are that

the claimant aged about 45 years carrying on the

agricultural work, getting monthly income of Rs.20,000/-

met with an accident on 31.01.2018 at about 6.15 p.m.,

when she was proceeding towards Tinthani to attend

Mouneshwara fair from Halgadla village of Jewargi Taluk in

an autorickshaw bearing Registration No.KA-32-B-6902.

That the driver of the autorickshaw drove the same in a

rash and negligent manner and suddenly applied brake, as

a result of which, the autorickshaw lost balance and turned

turtled to the right side of the main road. Due to the

impact, the claimant sustained fracture of left clavicle with

elastic nail in situ with serious discharge. The claimant

was admitted to Govt. General Hospital, Shorapur, where

she was administered first aid and thereafter, admitted for

higher treatment as an inpatient at Shorapur hospital for a

period of 20 days. The claimant spent huge amount

towards medical expenses. Hence, sought for

compensation of Rs.28,00,000/- along with interest at the

rate of 18% p.a.

3. Upon service of notice, Respondent No.1 remained

absent and placed exparte. Respondent No.2-Insruance

Company filed statement of objection denying the petition

averments, mode and manner of accident, age, occupation

and income of the complainant was also denied. It is

contended that the offending auto was insured with the

respondent No.2-Insurance Company. The driver of the

said auto did not possess effective and valid driving licence

and was also not having permit and fitness certificate. The

seating capacity of the auto was only 3 + 1, but 10 to 12

persons were traveling in the auto at the time of accident.

As such, there was violation of the terms of the policy.

Hence, sought for exoneration from the liability.

4. Based on the pleadings, the Tribunal framed

issues and recorded evidence. Claimant examined herself

as P.W.1 and exhibited 14 documents as Exs.P1 to P14.

One Shivaraj has been examined as R.W.1 and marked

two documents as Ex.R1 and Ex.R2 on behalf of the

respondents.

5. The Tribunal, on consideration of the material

evidence, held that the accident in question occurred due

to rash and negligent driving of the offending auto by its

driver resulting in injuries sustained by the claimant.

Consequently, held that the claimant is entitled for a total

compensation of Rs.5,64,200/- along with interest at the

rate of 6% p.a., from the date of petition till realization.

Aggrieved by the same, the Insurance Company is before

this Court by way of above appeal seeking reduction of the

compensation.

6. Learned counsel for the Insurance Company

submitted that the Tribunal grossly erred in assessing the

disability of the claimant at 30% which is extremely on the

higher side considering the injuries sustained by the

claimant. It is further submitted that the Tribunal could

not have placed reliance on the disability certificate issued

by the doctor as the injuries sustained by the claimant are

simple in nature. She submitted that the compensation

awarded under the other heads are also on the higher side

and sought for reduction of compensation.

7. On the other hand, learned counsel for the

claimant, justifying the award passed by the Tribunal,

submitted that though the claimant was earning

Rs.20,000/- p.m., the Tribunal has taken income of the

claimant at Rs.8,000/- p.m., and the Tribunal has

justifiably assessed the disability of the claimant at 30%

and the same do not warrant any interference. Hence,

sought for dismissal of the appeal.

8. On consideration of the rival submissions made by

the learned counsel for the parties, the only question that

arises for consideration is:

"Whether the appellant has made out any ground for reduction of compensation awarded by the Tribunal?"

9. The accident in question and the injuries sustained

by the claimant are not in dispute. The documents, viz.,

FIR, complaint, chargesheet and IMV report establish the

factum of the accident. The wound certificate at Ex.P3 and

disability certificate at Ex.P5 evidence the following injuries

sustained by the claimant:

Wound Certificate:

"The claimant sustained lacerated would over the chest - 3 x 2 inch, lacerated would over zygomatic bone - 4 x 2 cms, lacerated wound over right frontal bone, lacerated would over clavical and right trachea.

Disability Certificate:

i) Fracture shaft of the right humerus middle third;

ii) Fracture of the left clavicle and scapula region;

iii) Fracture of the ribs left part of the chest.

10. P.W.2-Dr.Muthappa who has examined the

claimant and issued disability certificate has opined that

the claimant has sustained permanent physical impairment

of 65% to the right upper limb, 55% to the chest and 50%

to the clavicle and permanent disablement to the whole

body at 50%. The Tribunal has however, taken disability

at 30% to the whole body.

11. Learned counsel for the Insurance Company

vehemently submitted that the said disability certificate

and the evidence of doctor-P.W.2 cannot be taken into

consideration as the assessment made by the doctor is

incorrect and unjustified.

12. Be that as it may. The nature of injuries

suffered by the claimant as stated above is not in dispute.

The nature of the work being carried on by the claimant is

that of Agriculture. Therefore, it in can be inferred that the

claimant would have discomfort in view of restriction of

movement of the right upper limb in carrying out day to

day activities. Claimant being an Agriculturst, would be

required to exert physically in the field in all weather

conditions. That from the nature of injuries suffered by

the claimant, it can very well be inferred that the claimant

will not be able to do the work as she would otherwise be

capable of doing before the accident. However, considering

the nature of injuries suffered by the claimant, the

assessment of disability made by the Tribunal at 30% to

the whole body, is on the higher side.

13. In the facts and circumstances of the case and

considering the nature of injuries sustained by the

claimant, this Court is of the considered view that the

disability be assessed at 25% instead of 30%. Thus, Loss

of Future income reworked would work out to

Rs.3,36,000/- (Rs.8,000/- x 12 x 14 x 25/100) instead of

Rs.4,03,200/- The award of compensation under other

heads is maintained. Thus, claimant is entitled to reduced

compensation of Rs.4,97,000/- as under:

       Heads              By Tribunal         By this Court
                                     In Rs.           In Rs.
 Loss of future income
                              4,03,200/-         3,36,000/-
 Pain and suffering               20,000/-         20,000/-
 Loss of income during            16,000/-         16,000/-
 treatment
 Medical, conveyance,            1,05,000/-      1,05,000/-
 nutrition and
 attendant charges
 Future happiness and             20,000/-         20,000/-
 amenities
 Total                           5,45,200/-      4,97,000/-

14. For the foregoing, the following:

ORDER

The appeal filed by the Insurance Company in MFA

No.202394/2019 is allowed in part. The Tribunal's order

dated 17.07.2019 in MVC No.264/2018 passed by the

Senior Civil Judge and MACT at Shorapur is modified,

granting compensation of Rs.4,97,000/- with interest at

the rate of 6% per annum from the date of petition till

realization instead of Rs.5,45,200/- awarded by the

Tribunal.

Sd/-

JUDGE

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