Karnataka High Court

Shri. Mukandar S/O Noorahamed ... vs The Divisional Controller on 17 January, 2022

Bench: S G Pandit, Anant Ramanath Hegde

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

       DATED THIS THE 17TH DAY OF JANUARY 2022

                        PRESENT

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

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              M.F.A.NO.103774 OF 2017 (MV)
                           C/W
              M.F.A.NO.102889 OF 2017 (MV)

IN M.F.A.NO.103774 OF 2017 (MV)

BETWEEN

THE DIVISIONAL CONTROLLER NWKRTC
BELAGAVI DIVISION, BELAGAVI.
(OWNER OF BUS BEARING NO. KA-42/F-1276)
REPRESENTED BY CHIEF LAW OFFICER.
                                             ... APPELLANT
(BY SRI.S.C.BHUTI, ADVOCATE)

AND

SHRI.MUKANDAR S/O. NOORAHAMED DONSAL
AGE: 24 YEARS, OCC:CENTERING, NOW MIL,
R/O. TERGAV, TQ:HALIYAL,
NOW RESIDING AT ANGOL-590006.
TQ & DIST:BELAGAVI.
                                       ... RESPONDENT

(BY SRI. B.M.PATIL, ADVOCATE)

THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED

14.07.2017 PASSED IN MVC NO.22/2017 ON THE FILE OF THE XI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING THE COMPENSATION OF RS.3,45,400/-, ALONG WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

IN M.F.A.NO.102889 OF 2017

BETWEEN

SHRI. MUKANDAR S/O NOORAHAMED DONSAL, AGE: 24 YEARS, OCC: CENTERING, NOW NIL, R/O: TERAGAV, TQ: HALIYAL, NOW RESIDING AT ANGOL, TQ & DT: BELAGAVI.

... APPELLANT (BY SRI. B.M.PATIL, ADVOCATE)

AND

THE DIVISIONAL CONTROLLER, N.W.K.R.T.C, BELAGAVI DIVISION, BELAGAVI.

(OWNER OF BUS BEARING NO. KA-42/F-1276) ... RESPONDENT (BY SRI. C.R.MENASINAKAI, ADVOCATE)

THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 14.07.2017 PASSED IN MVC NO.22/2017 ON THE FILE OF THE XI-ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE MFA's COMING ON FOR ADMISSION, ANANT RAMANATH HEGDE, J DELIVERED THE FOLLOWING:

COMMON JUDGMENT

Both the appeals filed by the Insurance Company as

well as the claimant are taken up together and disposed of

by this common judgment.

2. Award of Rs.3,65,400/- along with interest at

the rate of 9% per annum awarded by XI Addl. District

and Sessions Judge & Addl.M.A.C.T, Belagavi in

M.V.C.No.22/2017 as against claim of Rs.40,00,000/- has

not satisfied the claimant as well as respondent-

corporation. Thus, respondent-corporation has filed

M.F.A.No.103774/2017 with a prayer to reduce the

compensation and claimant has filed

M.F.A.No.102889/2017 seeking enhancement of

compensation.

3. With the consent of the learned counsel for the

parties, both the cases are taken up together for final

disposal.

4. The accident occurred on 4.12.2016 as there

was collision between the motorcycle bearing Reg.No.KA-

31/V-0547 and bus bearing Reg.No.KA.42/F-1276 near

Karka Check post in Haliyal. The claimant was the pillion

rider in the said motorbike. It is alleged that the driver of

the bus was solely responsible for the accident as he was

driving the bus in a rash and negligent manner. The

claimant claims to have suffered multiple fractures on

meta carpel bone, right tibia and fibula. It is further

contended by the claimant that he has suffered a

disability to the extent of 40% to the lower limb and 15%

to the left wrist joint. It is further contended that he was

doing centering work and was also an agriculturist and

was earning Rs.25,000/- per month from his centering

work and Rs.2,00,000/- per annum from agriculture.

5. The respondent-corporation contested the

petition before the Tribunal and took a defence that the

rider of the bike being responsible for the accident, is also

a necessary party to the proceeding and further contended

that the rider of the bike did not possess a valid and

effective driving license to ride the bike. The claim made

by the claimant is denied by the respondent-corporation

and the respondent-corporation prayed for dismissal of

the petition.

6. The parties led the evidence in support of their

respective claim. The petitioner also examined the doctor

to prove the disability. The respondent examined its

driver. On the basis of evidence available on record, the

claims Tribunal has awarded compensation of

Rs.3,65,400/- as against a claim of Rs.40,00,000/- as

under;

Sl.No.                 Heads             Compensation
                                         amount in Rs.
1.         Loss of future income            Rs.1,94,400/-
2.         Pain and suffering                 Rs.45,000/-
3.         Medical expenses                   Rs.77,999/-
4.         Loss of income during laid of      Rs.18,000/-
           period
5.         Loss of food, nutrition and        Rs.10,000/-
           attendant charges.
6.         Towards      future   medical      Rs.20,000/-
           expenses
                                  Total     Rs.3,65,399/-
                             Rounded off    Rs.3,65,400/-

7. The learned counsel for the appellant-claimant

in M.F.A.No.102889/2017, in support of his contention

would urge that the Tribunal erred in taking Rs.9,000/-

per month as the income of the claimant and should have

taken Rs.20,000/- per month. According to the claimant,

he was working as a centering worker. It is further urged

that no compensation is awarded under the head of loss of

amenities. It is the further case that the award of

compensation on the heads of loss of income during laid

off period is on lower side and these grounds learned

counsel for the claimant-appellant prayed for

enhancement of compensation.

8. Learned counsel appearing for the corporation

supporting its appeal and opposing the appeal of the

claimant would urge that, as the income of the claimant

was not established by the claimant, in the absence of

proof relating to the income, Rs.8,750/- should have been

taken as the income of the claimant as per the chart

prepared by the Karnataka State Legal Services Authority,

which indicates notional income of Rs.8,750/- in respect

of accidents occurred in the year 2016. Learned counsel

for the appellant would also urge that the award of

Rs.1,94,400/-towards loss of future income is on higher

side and without any justification. It is further urged by

the learned counsel for the appellant-corporation, that the

Tribunal could not have awarded interest at the rate of 9%

per annum.

9. We have considered the rival contentions urged

at the bar and we have perused the materials on record.

10. The contention of the respondent-corporation

that rider of the bike was also negligent and responsible

for the accident, is not supported by any material. The

police after investigation have filed the charge sheet

against the driver of the bus. Thus, the Tribunal has come

to the conclusion that the driver of the bus alone is

responsible for the accident. We are not inclined to take a

different view on the contention of contributory negligence

raised by the respondent-corporation.

11. The contention of the claimant that he was

doing centering work and that he is an agriculturist, is not

accepted by the Tribunal for want of proof. In the absence

of proof, the Tribunal has taken Rs.9,000/- per month as

the income of the deceased. Though the chart prepared by

the Karnataka State Legal Services Authority would

indicate that Rs.8,750/- can be taken as notional income

in respect of accidents occurred in the year 2016 in

respect of persons, whose actual income cannot be

ascertained, this Court is of the view that excess of

Rs.250/- per month taken by the Tribunal will not make

much of the difference to the final out come of the verdict

in this case. Thus, we are not inclined to interfere with the

said finding of the Tribunal taking income of the claimant

at Rs.9,000/- per month.

12. It is noticed from the judgment of the Tribunal

that the Tribunal has taken note of 40% disability to the

claimant, which is supported by Ex.P.10-the disability

certificate issued by the doctor. Considering the disability

of 40% assessed by the doctor, the Tribunal has taken

10% disability for the whole body while calculating loss of

future prospects. This in our view, requires modification

considering the nature of injury sustained by the

claimant. This Court deems it appropriate to take the

disability of earning at 15% as against 10% taken by the

Tribunal. Thus, the compensation under the head of loss

of future income would be Rs.9,000/- (Income per month)

x 12 (months) x 18 (multiplier) x 15%=2,91,600/-.

13. It is also noticed that the Tribunal has not

awarded any compensation towards loss of amenities in

life. Considering the nature of injury, this Court deems it

appropriate to award Rs.30,000/- under the head of loss

of amenities. As far as loss of income towards laid off

period, the Tribunal has awarded Rs.18,000/- and

considering the nature of injury and the facture suffered

by the claimant, it is appropriate to award loss of income

at Rs.27,000/-, as it takes almost 3 months to recover

from the injury of this nature.

14. The compensation in respect of other heads are

not disturbed. Thus, the compensation payable would be

as under:

Sl.No.               Heads              Compensation
                                        amount in Rs.
1.       Loss of future income             Rs.2,91,600.00
2.       Pain and suffering                 Rs.45,000.00
3.       Medical expenses                   Rs.77,999.00
4.       Loss of income during laid off     Rs.27,000.00
         period
5.       Loss of food, nutrition and        Rs.10,000.00
         attendant charges
6.       Towards      future   medical      Rs.20,000.00
         expenses
7.       Loss of amenities                  Rs.30,000.00
                                 Total    Rs.5,01,599.00
                           Rounded off    Rs.5,01,600.00

15. The contention of the respondent-corporation

that award of 9% interest on the compensation, awarded

by the Tribunal on higher side is concerned, this Court

has no difficulty in agreeing with the said contention. The

rate of interest applied by the nationalized banks have

come down and accordingly, the rate of interest payable

on the compensation awarded would be 6% from the date

of petition till the date of actual payment.

16. Thus, the claimants are entitled for total

compensation of Rs.5,01,600/- with interest at 6% p.a

from the date of petition till the date of actual payment.

Accordingly, both the appeals are allowed in part, as