Shiddaramagouda S/O ... vs Abdulkhadar S/O Allauddinsab ...
2022 Latest Caselaw 3378 Kant

Citation : 2022 Latest Caselaw 3378 Kant
Judgement Date : 28 February, 2022

Karnataka High Court

Shiddaramagouda S/O ... vs Abdulkhadar S/O Allauddinsab ... on 28 February, 2022

Bench: N.S.Sanjay Gowda

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

 DATED THIS THE 28 T H DAY OF FEBRUARY, 2022

                            BEFORE

 THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

                  M.F.A. No.22559/2012 (MV)

BETWEEN:

SRI. SHIDDARAMAGOUDA,
S/O. PUTTANAGOUDA CHANNAGOUDRA,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: CHIKKABASUR, TQ: BYADAGI,
DIST: HAVERI.
                                                ... APPELLANT
(ABSENT)

AND:

1.     ABDULKHADAR
       S/O. ALLAUDDINSAB LALANNAVAR,
       AGE: MAJOR, OCC: BUSINESS,
       R/O: MOULALI NAGAR, SHIGGAON-581205,
       TQ: SHIGGAON, DIST: HAVERI.

2.     THE MANAGER,
       NATIONAL INSURANCE CO. LTD.,
       BRANCH OFFICE, 1ST FLOOR, P.B. ROAD,
       NEAR BUS STAND HAVERI-581110,
       DIST: HAVERI.
                                              ... RESPONDENTS
(BY SRI. S. V. YAJI, ADV. FOR R2;
 R1-SERVED)

     THIS APPEAL IS FILED UNDER SECTION 173(1) OF M.V. ACT
AGAINST THE JUDGMENT AND AWARD DATED 16.07.2011 PASSED IN
MVC NO.334/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDITIONAL MACT, HAVERI, PARTLY ALLOWING THE CLAIM
                                 :2:



PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

Being dissatisfied with the compensation awarded by the

Tribunal, the claimant has preferred this appeal.

2. The fact that an accident occurred on 04.03.2009 is

not in dispute.

3. The only contention advanced in this appeal is that,

the apportionment of negligence at the ratio of 50:50 and

reducing the compensation of the claimant by 50% on the

ground that the owner of the offending tractor-trailer was

responsible.

4. It is not in dispute that the claimant was an inmate

of the tempo which collided with the tractor-trailer which was

coming from the opposite direction. The Tribunal has stated that

both the tempo driver and the driver of the tractor-trailer were

responsible for the accident. In order to come to the said

conclusion, the Tribunal has relied upon the charge-sheet in

which both the drivers had been charged with committing the

crime. The Tribunal has held that on the basis of the evidence of

the claimant and the contents of the documents produced, the

wrong doing on the part of both the tempo driver and the

tractor-trailer driver, stood established. Though, this finding

may be debatable having regard to the fact that the owner and

driver of tractor-trailer were not made parties in the claim

petition, it would however be sufficient to consider the

compensation payable to the claimant reserving liberty to the

owner of the tempo and his Insurance Company to recover the

compensation that is payable to the claimant from the owner of

the tractor-trailer and his Insurance Company.

5. The Tribunal has determined the age of the claimant

as 30 years and applied the multiplier of 17. It has applied the

monthly income of the claimant at Rs.4,000/- p.m. for computing

the compensation.

6. The Tribunal, though has taken note of the fact that

the evidence of the doctor indicated that there was 43%

permanent physical impairment to the claimant's left upper limb,

it has however come to the conclusion that the permanent

physical disability would be only 5%.

7. In my view, this assessment would be incorrect.

Admittedly the claimant was an agriculturist. If the left upper

limb of an agriculturist has sustained 43% permanent physical

impairment, it is obvious that the permanent physical disability

to his entire body would be at least 1/4th i.e. 25%.

8. As regards the monthly income, as per the income

determined by the Karnataka State Legal Services Authority, in

respect of the accident of the year 2009, the monthly income of

the victim is to be considered as Rs.5,000/- in the absence of

any documentary evidence. Consequently, I hold that the

notional income of the claimant was Rs.5,000/- p.m.

9. Since the Tribunal has found that the claimant had

suffered and sustained 43% permanent physical impairment, the

loss of future prospects would also have to be taken into

consideration as per the decision rendered in PAPPU DEO

YADAV VS. NARESH KUMAR reported in (AIR 2020 SC 4424)

and ERUDHAYA PRIYA VS. STATE EXPRESS TRANSPORT

CORPORATION LIMITED reported in (AIR 2020 SC 4284),

wherein future prospects at the rate of 40% is taken into

consideration and as a result, the monthly income of the

claimant will have to be taken at Rs.7,000/-.

10. The multiplier of 17 adopted by the Tribunal is in

accordance with law.

11. Hence, the claimant is entitled to the modified award

which reads as under:

Sl.               Heads                        Modified Award
No.
 1    Towards loss of income
      (Rs.5,000+2,000=7,000/-)                 Rs.3,57,000/-
      (7,000X25%X17X12)
2     Towards pain and suffering               Rs. 25,000/-
3     Towards medical expenses                 Rs. 25,815/-
4     Towards transportation charges           Rs.   2,000/-
5     Towards loss of amenities                Rs. 25,000/-
                   Total                       Rs. 4,34,815/-

12. Thus, the claimant is entitled for total compensation

of Rs.4,34,815/ instead of Rs.88,615/- awarded by the Tribunal.

13. In view of the above, I pass the following:

ORDER

(i) The appeal is allowed in part,

(ii) The Judgment and Award dated

16.07.2011 passed in MVC No.334/2010,

on the file of the Senior Civil Judge and

AMACT, Haveri, is hereby modified. The

claimant is entitled to a total

compensation of Rs. 4,34,815/- instead of

Rs.88,615/- awarded by the Tribunal. The