Karnataka High Court

Divisional Controller vs Ajit S/O Uditanand Mahajan on 16 February, 2022

Bench: S G Pandit, Anant Ramanath Hegde

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

      DATED THIS THE 16TH DAY OF FEBRUARY 2022

                        PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                  MFA NO.102195/2014
             C/W. MFA No.100957/2015 (MV)


IN MFA NO.102195/2014

BETWEEN

DIVISIONAL CONTROLLER
NWKRTC, BELGAUM DIVISION
BELGAUM
BY ITS CHIEF OFFICER
NWKRTC, CENTRAL OFFICE
HUBLI 580029
                                            ...APPELLANT
(BY SRI.I C PATIL, ADVOCATE)

AND

AJIT S/O UDITANAND MAHAJAN
AGE: 50 YEARS,
OCC: CLERK, NOW NIL
R/O. 112, MUNICIPAL ANAMENTS
BUILDING NO. 6, ROOM NO.3
WORLI, MUMBAI
MAHARASHTRA STATE 40050
                                        ...RESPONDENT

(BY SRI.HARISH S MAIGUR, ADVOCATE)

THIS APPEAL IS FILED U/SEC.173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DTD:17.12.2013, PASSED IN MVC.NO.2010/2011 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, BELGAUM, AWARDING THE CLAIM AMOUNT OF RS.25,57,278/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

IN MFA NO.100957/2015

BETWEEN

SHRI.AJIT UDITANAND MAHAJAN AGE: 50 YEARS, OCC: SERVICE, NOW NIL, R/O: 112, MUNICIPAL ANAMENTS, BUILDING NO.6, ROOM NO.3, WORLI, MUMBAI-25, MAHARSHTRA STATE.

...APPELLANT (BY SRI.HARISH S MAIGUR, ADVOCATE)

AND

THE DIVISIONAL CONTROLLER NWKRTS BELAGAVI DIVISION, BELAGAVI.

...RESPONDENT (BY SRI.I.C.PTIL, ADVOCATE)

THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGEMENT AND AWARD DATED 17.12.2013 PASSED IN MVC NO.2010/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER ADDITIONAL MACT, BELAGAVI PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEALS COMING ON FOR HEARING ON I.A., THIS DAY, ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:

COMMON JUDGEMENT

N.W.K.R.T.C., Belagavi Division, Belagavi is in appeal

in MFA No.102195/2014 invoking Section 173 of Motor

Vehicles Act impugning the judgement and award passed

in MVC No.2010/2011. In terms of the said judgement and

award dated 17.12.2013, II Additional Senor Civil Judge

and Additional MACT, Belagavi (for short, 'Tribunal')

awarded compensation of Rs.25,57,278.00 to the

claimants as against their claim for compensation of

Rs.50,00,000.00.

2. The Tribunal has held the driver of the bus

involved in the accident has contributed 75% to the

accident and remaining 25% contribution is from the driver

of car bearing Reg.No.MH-43/V-6002 which is also

involved in the accident.

3. The claimant Ajit Mahajan has also filed MFA

No.100957/2015 seeking enhancement of compensation.

Both the appeals are arising out of the judgement and

award passed in MVC No.2010/2011, as such are taken up

together for hearing.

4. The learned counsel for the appellant-NWKRTC

has also filed an application under Order 41 Rule 27 of

C.P.C. seeking production of additional documents. The

appellant- N.W.K.R.T.C. claims that, though claimant

suffered injuries, he continued in service and presently

working as Chief Auditor in Department of Municipal Chief

Auditors, Brihunmumbai Mahanagarpalika, Mumbai. To

support this contention, a report dated 14.12.2021 issued

by the Divisional Security Officer of the department is

enclosed. Along with the said report, a certificate issued by

the Municipal Chief Auditor of Department of Municipal

Chief Auditors, Brihunmumbai Mahanagarpalika, Mumbai is

also produced. This certificate is accompanied by pay-slip

of the claimant for the year November-2021.

5. The learned counsel for the claimant,

Sri.Harish S Maigur would vehemently oppose the

application seeking production of additional documents and

would submit that in case the Court is inclined to allow

production of additional documents, the case may be

remitted to the trial Court to give finding on additional

documents.

6. This Court considered the contentions of the

appellant-Corporation and the respondent-claimant with

respect to production of additional documents. The

documents sought to be produced are the pay slip and the

certificate issued by the Municipal Chief Auditor of

Department of Municipal Chief Auditors, Brihunmumbai

Mahanagarpalika, Mumbai. From these documents, it is

apparent that the claimant is working in the Department of

Municipal Chief Auditors, Brihunmumbai Mahanagarpalika,

Mumbai as auditor. From the salary slip for the year

November-2021, it is noticed that Rs.1,14,755.38 is the

gross monthly salary payable to the claimant. Merely

because the document is produced at the belated stage, it

is not always necessary for the Appellate Court to remand

the matter to give a finding based on additional documents

produced before the Appellate Court. The Appellate Court

has the power to consider the documents in appeal and to

pass appropriate judgement based on additional

documents. The Appellate Court may allow production of

documents for sufficient reasons or may reject production

of additional documents or even after allowing the

production of documents, the Court may find that the

documents are not helpful to the case of the party who

seeks production of documents or may consider the effect

of the documents and based on the documents produced

at appellate stage pass appropriate orders on merits.

7. As noticed above, the documents are coming

from the public authority relating to current employment of

the claimant. Though the claimant has opposed production

of additional documents has not disputed the fact that is

currently working in the Department of Municipal Chief

Auditors, Brihunmumbai Mahanagarpalika, Mumbai. Under

these circumstances, this Court is of the opinion that

production of additional documents is to be permitted and

effect of those documents on the merits of the case is

required to be considered.

8. This Court has also heard the learned counsel

for the appellant-Corporation and the claimant at length on

merits and this court is of the opinion that the judgement

and award passed by the Tribunal requires to be modified

for the following reasons:

9. The Tribunal determined the compensation of

Rs.34,09,705.00 on the following heads:

            Medical expenses            Rs.75,842.00
            Attendant       charges,    Rs.15,000.00
            conveyance and other
            incidental expenses

Loss of future earnings Rs.30,68,863.00 due to disability Loss of marriage Rs.50,000.00 prospects Pain and sufferings Rs.1,00,000.00 Loss of amenities in life Rs.1,00,000.00 and future unhappiness Total Rs.34,09,705.00

10. Thereafter the Tribunal has taken the extent of

negligence on the part of the driver of the bus at 75% and

extent of contribution of the driver of the car at 25% and

fastened liability to the extent of 75% on the driver of the

bus and awarded a compensation of Rs.25,57,278.00.

11. Learned counsel, Sri.Harish S Maigur appearing

for the claimant would contend that rejection of

compensation to the extent of 25% on the premise that

the driver of the car is also responsible for the accident to

the extent of 25%, is without any basis. He would submit

police after investigation have filed charge sheet against

the driver of the bus only and not against the claimant.

12. The Tribunal while adjudicating the issue

relating to negligence in paragraph Nos.10 and 11 of the

impugned judgement has recorded a finding that the

drivers of both vehicles have contributed to the accident

and extent of contribution of the driver of the bus is assed

at 75% and the driver of the car at 25%. It is also

forthcoming from the judgement that the spot sketch is

not produced by the investigating officer. Nevertheless

charge sheet is filed against the driver of the bus and no

charge sheet is filed against the driver of the car. It is also

pertinent to note that the claimant in this case is not the

driver of the car involved in the accident. He was the

inmate. Under these circumstances, this Court is of the

opinion that the finding of the Tribunal relating to

negligence is not based on acceptable materials to rebut

the presumption arising out of the charge sheet filed

against the driver of bus. Thus, the Tribunal could not

have held that the driver of the car has also contributed to

the accident. To this extent, the judgement of the Tribunal

requires modification and this Court holds that the driver

of the bus is solely responsible for the accident.

13. Now coming to the compensation awarded

under the head loss of future earnings due to disability,

the Tribunal has awarded Rs.30,68,863.00 on the premise

that the claimant has suffered financial loss and his

disability is taken at 100% on the premise that he has lost

his job on account of disability suffered by him. The

additional documents which are allowed by this Court on

an application filed by the appellant-Corporation would

reveal that the claimant is still working in the Department

of Municipal Chief Auditors, Brihunmumbai

Mahanagarpalika, Mumbai. Thus, the compensation

awarded under the said head is to be set aside.

14. As far as compensation under the head medical

expenses is concerned, Rs.75,842.00 is awarded, which is

supported by medical bills and does not require any

interference. It is noticed that the claimant was in the

hospital for 40 days as inpatient and that being the

position award of Rs.15,000.00 under the head attendant

charges, conveyance and other incidental expenses

requires enhancement by another Rs.15,000.00 and

therefore this Court awards Rs.30,000.00 under the said

head.

15. The claimant was aged 46 and was bachelor at

the time of accident. There is no material whether he is

married or not. The Tribunal has awarded Rs.50,000.00

towards loss of marriage prospects. This Court considering

the age of the claimant at the time of accident is not

inclined to modify the said award.

16. Compensation of Rs.1,00,000.00 each is

awarded under the head of pain and suffering and loss of

amenities in life and future unhappiness. The Tribunal has

recorded the finding that the claimant has suffered

multiple grievous injuries and the doctor has also assessed

permanent disability to the extent of 81% to the whole

body, 50% to his limb and it is also opined by the doctor

that the claimant has suffered speech and memory

disfunction. Under the circumstances, the compensation

under the head pain and suffering needs to be enhanced

by Rs.1,00,000.00 and compensation under the head loss

of amenities in life is also to be enhanced by

Rs.1,00,000.00.

17. Accordingly, the compensation payable would

be:

             Medical expenses                    Rs.75,842.00
             Attendant     charges,              Rs.30,000.00
             conveyance and other




            incidental expenses
            Loss     of    marriage      Rs.50,000.00
            prospects
            Pain and sufferings         Rs.2,00,000.00

Loss of amenities in life Rs.2,00,000.00 and future unhappiness Total Rs.5,55,842.00

18. Hence the following:

ORDER

Both the appeals are allowed in part.

The judgement and award dated 17.12.2013 passed

in MVC No.2010/2011 on the file of the II Additional Senor

Civil Judge and Additional MACT, Belagavi stands modified.

The claimant is entitled for total compensation of

Rs.5,55,842.00 as against Rs.25,57,278.00 awarded by

the Tribunal.

The compensation amount shall carry interest at the

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