Mallangouda S/O Hanamantraya vs S.B.Aski And Anr
2022 Latest Caselaw 1809 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

     DATED THIS THE 07TH DAY OF FEBRUARY, 2022

                         BEFORE

        THE HON'BLE MRS. JUSTICE J.M.KHAZI

               MFA No.30279/2013 (MV)

BETWEEN:

MALLANAGOUDA S/O HANAMANTRAYA BIRADAR,
AGE: 42 YEARS,
OCC. NIL, (EARLIER AGRI AND BUSINESS)
R/O TUMBAGI TQ. MUDDEBIHAL,
DIST. BIJAPUR
                                             ...APPELLANT
(BY SRI.HARSHAVARDHAN R MALIPATIL, ADVOCATE)
AND:

1.     S.B.ASKI
       AGE: 39 YEARS, OCC. AGRICULTURE,
       R/O KODAGANOOR TQ. MUDDEBIHAL,
       DIST. BIJAPUR-586101.

2.     NATIONAL INSURANCE CO.
       DIVISION OFFICE, RAMDEV GALLI,
       BELGAUM-590002.
                                          ... RESPONDENTS
(BY SRI.RAHUL R.ASTURE, ADVOCATE FOR R2
 NOTICE TO R1 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V.ACT, PRAYING TO ALLOW THIS APPEAL
AND ENHANCE THE COMPENSATION BY RS.9,36,000/- ALONG
WITH INTEREST BY MODIFYING THE JUDGMENT AND AWARD
OF SENIOR CIVIL JUDGE & MEMBER MACT-VIII, MUDDEBIHAL
DATED 23.11.2012 IN MVC NO.105/2009.
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     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT     ON    20.01.2022,  COMING    ON    FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                          JUDGMENT

This is claimant's appeal filed under Section

173(1) Motor Vehicles Act (for short 'M.V.Act'),

challenging the impugned judgment and award,

seeking enhancement of the compensation. However,

during the course of arguments the learned counsel

appearing for the claimant and respondent No.2

submitted that, though the Tribunal has fixed the

liability on respondent No.2, having regard to the fact

that at the time of accident the rider of the offending

motorcycle was not possessing valid driving license, in

MFA No.30526/2013 filed by respondent No.2, this

Court has directed respondent No.2-Insurance

Company to pay and recover the same from

respondent No.1. Therefore, they are also seeking a

similar order of pay and recovery.

2. For the sake of convenience, the parties

are referred to by their ranking before the Tribunal.

3. The facts leading to the filing of claim

petition are on 01.12.2008 at about 3.20 p.m.,

petitioner was standing by the side of the road near

Doni Bridge speaking to his friend. When he was

about to take turn and started his motor bike, a

motorcycle owned by respondent No.1 and driven by

its rider in a rash or negligent manner, caused

accident resulting petitioner sustaining fracture and

other injuries and has spent Rs.70,000/- for the

treatment.

4. After detailed trial, the Tribunal has

granted compensation in a sum of Rs.1,34,000/- as

detailed below:

Particulars                                         Amount
Pain and suffering                                  50,000/-
Loss of comfort                                     03,000/-
Loss of income during treatment                     06,000/-





Medical expenses                           70,000/-
Expenses for attender                      05,000/-
                      Total             Rs.1,34,000/-

5. Since the claimant has failed to examine

the doctor who treated him and secure disability

certificate from the treating doctor and also there was

large gap of four years in obtaining the disability

certificate from a non treating doctor, the Tribunal has

refused to grant any compensation under the head

loss of future earnings.

6. Claimant is seeking enhancement of

compensation also on the ground that the accidental

injuries resulted in permanent partial disability and as

such he is entitled for compensation for future loss of

earnings as well as future prospects.

7. Admittedly, the claimant has not secured

disability certificate from the doctor who treated him.

Consequently, he has also not examined the said

doctor to prove the disability. Moreover, the claimant

has not lead any evidence to show that on account of

the injuries sustained by him, there is loss of earning

capacity. In the petition, he has claimed that he is an

agriculturist and also doing business. However, he

has not produced any evidence to show whether he is

owning any agricultural land and what sort of business

he was doing and what was his income before the

accident and in what way after the accident, his

income has reduced and the same is attributable to

the accidental injuries sustained by him. He has also

not given any justifiable reasons in not getting the

disability certificate from the doctor who treated him

and also examine him before the Court. In the

circumstance, the Tribunal has rejected the evidence

of PW.2-doctor Netaji Sanganna Biradar, especially

when the disability certificate was secured after four

years of the incident. In the absence of proof of the

injuries sustained by the claimant resulting in

reduction of income of the claimant, I am also of the

considered opinion that claimant is not entitled for any

compensation under the head loss of future income

and loss of future prospects.

8. The Tribunal has granted compensation in

a sum of Rs.50,000/- under the head pain and

suffering. Having regard to the nature of the injuries

sustained by the claimant, this is reasonable.

9. Under the head loss of comfort, the

Tribunal has granted compensation in a sum of

Rs.3,000/- which is very meager. Therefore, under the

head loss of amenities granting compensation in a

sum of Rs.25,000/- would be appropriate and

reasonable.

10. Based on the medical bills produced by the

claimant, the Tribunal has rightly granted

compensation in a sum of Rs.70,000/- and I find no

reasons to interfere with the same. The claimant has

claimed that at the time of accident he was earning

Rs.6,000/- per month. However, he has not produced

any evidence to establish the said fact. Though during

the year 2008 as per the Lok Adalath chart prepared

by the Karnataka State Legal Services Authority, the

minimum wages is to be considered as Rs.4,250/-,

however, for the purpose of granting compensation

under the head laid up period, the Tribunal has

granted Rs.6,000/- and I find no reasons to interfere

with the same.

11. The Tribunal has granted compensation in

a sum of Rs.5,000/- towards expenses for attendant

charges which is also reasonable. Thus, except

increasing the compensation under the head loss of

amenities by Rs.22,000/-, and thereby rising total

compensation as Rs.1,56,000/- as against

Rs.1,34,000/-, I find no reasons to interfere with the

judgment and award of the Tribunal so far as quantum

is concerned.

12. It is pertinent to note that even though the

respondent No.2 took up a defence that at the time of

accident, the rider of the two wheeler which is owned

by respondent No.1 was not having valid driving

license, without giving any findings on that aspect, the

Tribunal has simply saddled responsibility on

respondent No.2. However, respondent No.2

challenged the same in MFA No.30526/2013. Based

on the decision in Pappu and Others Vs. Vinod

Kumar Lamba, reported in (2012) 3 SCC 208, and

New India Insurance Company Vs. Yallavva,

reported in AIR 2020 SC 986, this Court has allowed

the said appeal filed by the Insurance Company and

directed it to pay the compensation and recover the

same from respondent No.1. Therefore, in the

absence of proof of the fact that at the time of

accident, rider of the offending two wheeler was

holding a valid driving license, it is necessary that

respondent No.2 shall be permitted to pay and recover

the compensation from respondent No.1.

13. Accordingly, I proceed to pass the

following:

ORDER

(a) The appeal is allowed in part.

(b) The impugned judgment and award is modified granting compensation in a sum of Rs.1,56,000/- as against Rs.1,34,000/- granted by the Tribunal.

(c) Respondent No.2 is directed to pay the enhanced compensation with interest @ 6% p.a. and recover the same from respondent No.1.

Sd/-

JUDGE msr