Karnataka High Court
Sri.Vishwaraj S/O. ... vs The Divisional Controller on 12 January, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
MFA NO.200336/2016 (MV)
BETWEEN:
Sri. Vishwaraj
S/o Veerabhadrappa Police Patil,
Age: 57 years, Occ: Nil,
R/o H.No.51-106/3, Annapurna Nivas,
Bukki Mantappa House, Venkatesh Nagar,
Kalaburagi - 585 102.
... Appellant
(By Sri Ajay Kumar A.K., Advocate)
AND:
The Divisional Controller,
NEKSRTC, Kalaburagi - 585 102.
... Respondent
(By Smt. Sangeeta Bhadrashetty, Advocate)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the
appeal by modifying the judgment and award dated
04.09.2014 passed in MVC No.324/2011 by the learned
Prl. Senior Civil Judge & CJM, Kalaburagi, C/c. I Addl.
Senior Civil Judge & MACT, Kalaburagi and enhance the
compensation amount as prayed for with cost throughout.
2
This appeal coming on for Orders this day,
K.S. Hemalekha J, delivered the following:
JUDGMENT
The present appeal is filed by the claimant, assailing
the judgment and award dated 04.09.2014 passed in MVC
No.324/2011 by the Prl. Senior Civil Judge & CJM,
Kalaburagi, C/c. I Addl. Senior Civil Judge & MACT,
Kalaburagi (for short 'the Tribunal'), seeking enhancement
of compensation.
2. It is claim of the claimant that the accident
occurred on 10.10.2010 at about 5.30 p.m. when he was
going to Jewargi from Gulbarga on his Bajaj Chetak
Scooter bearing No. KA-32/H-3415 and when he was near
Kasaradagi Road, the NEKRTC bus bearing No.KA-32/F-
1551 came in a rash and negligent manner and dashed the
vehicle of the claimant, due to which he sustained grievous
injuries. It is further contended that he was admitted in
the hospital and he was operated and his left foot was
amputated above the ankle and he was sustained 70%
permanent disablement. He further contended that he is a
businessman and also doing agriculture work and earning
around Rs.30,000/- per month. It is further contended
that the accident occurred due to rash and negligent
driving of the driver of the NEKRTC bus and hence, sought
for compensation.
3. On service of notice by the Tribunal, the
respondent-NEKSRTC appeared and filed their objection
denying the age, income and occupation of the claimant.
It is contended that the accident occurred due to the
negligence on the part of the claimant, as he was
approaching in a speed manner without following the
Traffic Rules and as such dashed the bus. It is also
contended that the claimant was not holding a valid and
effective driving licence at the time of the accident and
thus, sought for dismissal of the claim petition.
4. On the basis of the rival contentions of the
parties, the Tribunal framed the following:
ISSUES
1. Whether the petitioner proves that on
10.10.2010 at about 5.30 p.m. he was
going to Jewargi from Gulbarga on his
Bajaj Chetak scooter brg.No.KA-32/H-3415
after taking Darshan of "Samadhan Patt
Math", near small bridge on Kasaradagi
road and one NEKRTC Bus brg.No.KA-
32/F-1511 being driven by its driver came
in rash and negligent in zig-zag manner,
resulting lost control over the bus and
dashed to the petitioner's over the bus and
dashed to the petitioner's above said
vehicle, due to which the petitioner
sustained grievous injuries in the accident?
2. Whether respondent proves that accident
occurred due to negligence riding of the
petitioner himself?
3. Whether Respondent further proves that
the petitioner was not holding valid and
effective DL at the time of accident?
4. Whether Respondent further proves that it
is the petitioner who got involved alleged
bus to collision with the police to claim
compensation?
5. Whether the petitioner is entitled for
compensation? If so, what amount and
from whom?
6. What award or order?
5. In order to substantiate his case, the claimant
examined himself as PW1 and examined the doctor as
PW.2 and got marked 24 documents as Exs.P1 to P24. On
the contrary, the respondent examined its driver as RW.1.
No documentary evidence was marked on behalf of the
respondent.
6. Having heard the learned counsel for the
parties, perusing the evidence and material on record and
considering the documentary evidence at Exs.P1 to P24,
the Tribunal has awarded a compensation of Rs.6,22,000/-
along with interest at 6% p.a. from the date of petition till
the date of deposit under the following heads.
1. Loss of future income Rs.3,30,000/-
2. Pain and suffering Rs.40,000/-
3. Loss of income during Laid off Rs.14,608/-
period (for 88 days)
4. For Food & nutrition during Rs.8,800/-
Hospitalization period
5. For attendant charges during Rs.13,200/-
Hospitalization period
6. Medical expenses Rs.2,00,000/-
7. Diet, Nourishment & Rs.15,000/-
conveyance charges
Total Rs. Rs.6,21,608/-
Rounded off Rs.6,22,000/-
7. Being dissatisfied with the quantum of
compensation awarded by the Tribunal, the
appellant/claimant has preferred this appeal for
enhancement of compensation.
8. Heard the learned counsel for the appellant
and the learned counsel for the respondent.
9. Sri. Ajay Kumar A.K., learned counsel for the
appellant/claimant would contend that the Tribunal was
not justified in taking the monthly income at Rs.5,000/-,
as the claimant was doing business and also doing
agriculture work and he was earning more than
Rs.30,000/- per month and also filed an application - I.A.
No.2/2016, seeking permission to produce the Income Tax
Returns for the year 2009-10 pertaining to the appellant
by way of additional document showing that the appellant
is an income tax assessee and that he was a business man
and sought for allowing I.A. No.2/2016.
10. It is further contended that the Tribunal has
assessed the disability of the appellant to an extent of
50%, whereas PW2, the doctor who has treated the
appellant has clearly opined that there is permanent
disability to an extent of 70% to the whole body. It is his
further contention that the record of rights produced by
the appellant to prove his income has not been considered
by the Tribunal and thus, sought for enhancement of the
compensation.
11. Per contra, Smt. Sangeeta Bhadrashetty,
learned counsel for the respondent-NEKRTC would justify
the judgment and award passed by the Tribunal and
contends that the judgment and award do not require any
interference by this Court and the document sought to be
produced are not relevant to the present facts and
circumstances and the same was not produce before the
tribunal at the first instance.
12. Having heard the learned counsel for the
parties and having perused the material on record, the
points that arise for consideration in this appeal are,
i) Whether IA No.2/2016 filed by the appellant
under Order XLI Rule 27 of CPC needs to be
allowed?
ii) Whether the appellant is entitled for
enhanced compensation?
13. The occurrence of the accident and the nature
of injuries sustained by the claimant are not in dispute.
However, the controversy is with regard to the quantum of
compensation awarded by the Tribunal.
14. The claimant has sought to produce the
Income Tax Returns for the year 2010-11 filed on
18.02.2011 showing the gross total income as
Rs.1,22,224/- and the balance sheet of the proprietary
business M/s. Veer Jyoti Traders, which is being run by the
appellant Vishwaraj Police Patil. Since the document
sought to be produced by way of additional document is a
public document, we do not find any necessity to remit the
matter back to the Tribunal for reconsideration. The said
documents are received on record. In view of the same,
point No.1 is answered in the affirmative and accordingly
IA No.2/2016 is allowed.
15. Looking into the documents produced by the
claimant by way of additional document along with IA
No.2/2016, it would clearly depict that the claimant was
earning Rs.10,000/- per month and after adding 10% i.e.,
Rs.1,000/-, it will come to Rs.11,000/- and considering the
age of the appellant, the proper multiplier would be '11'
and looking into the material on record and the evidence of
PW2, the disability assessed by the Tribunal to the extent
of 50% is just and proper. Thus, under the head 'loss of
future income', the appellant would be entitled for a total
sum of Rs.7,26,000/- (Rs.11,000 x 12 x 11 x 50%).
16. The compensation awarded by the Tribunal
under the other heads is in adequate and needs to be
reassessed. Towards pain and suffering, the appellant is
entitled for a sum of Rs.50,000/-. Towards loss of income
during the treatment period, the appellant is entitled for a
sum of Rs.36,000/-. The compensation of Rs.2,00,000/-
awarded by the Tribunal towards medical expenses is as
per the bill produced, which remains undisturbed. Towards
food and nutrition, the appellant is entitled for a sum of
Rs.20,000/-. Further, the appellant is entitled for a sum of
Rs.15,000/- towards attendant charges and a sum of
Rs.15,000/- towards diet and nourishment. So also, the
appellant is entitled for a sum of Rs.50,000/- towards loss
of amenities.
17. Thus, in all, the appellant is entitled for total
compensation of Rs.11,12,000/- under the various heads
as under:
1. Pain and suffering Rs.50,000/-
2. Loss of future earning Rs.7,26,000/
3. Loss of income during Rs.36,000/-
treatment period
4. Medical expenses Rs.2,00,000/-
5. Loss of amenities Rs.50,000/-
6. Food & Nutrition Rs.20,000/-
7. Attendant charges Rs.15,000/-
8. Diet & Nourishment Rs.15,000/-
Total Rs.11,12,000/-
The Tribunal has already awarded a sum of
Rs.6,22,000/-. Hence, after deducting the same, the
appellant would be entitled for the enhanced compensation
of Rs.4,90,000/- (Rs.11,12,000/- less Rs.6,22,000/-) with
interest at 6% p.a. from the date of petition till realization.
In view of the same, point No.2 is answered in the
affirmative.
18. In the result, we pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated 04.09.2014
passed by the Tribunal in MVC No.324/2011 is
hereby modified.
iii) The appellant-claimant is entitled for the
enhanced compensation of Rs.4,90,000/- with
interest at 6% p.a. from the date of petition till
realization.
iv) The respondent-NEKRTC is directed to deposit
the said compensation within a period of four
weeks from the date of receipt of a
certified copy of this judgment.
v) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP
