Karnataka High Court
Sri Thimmanna vs Sri B M Nandish on 4 July, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO.3026 OF 2014 (MV)
BETWEEN:
SRI THIMMANNA
S/O THIMMANNA
AGED ABOUT 43 YEARS,
PREVIOUSLY AGRICULTURIST AND BUSINESS,
TEMPORARY R/O
C/O SRI.DARANEPPA,
BEHIND SSIM HOSPITAL RAMANAGAR,
S.O.G COLONY,
DAVANGERE - 577 005.
PERMANENTLY R/O CHIKKABBIGERE VILLAGE,
CHANNAGIRI TALUK,
DAVANGERE DISTRICT - 577 213. ... APPELLANT
(BY SRI. SHANTHARAJA K G, ADVOCATE)
AND:
1. SRI B M NANDISH
S/O B.MANJESH
AGED ABOUT 37 YEARS,
DRIVER OF THE CAR BEARING
REG NO.KA-15/M-1674
R/O 4TH CROSS, RIGHT SIDE,
HOSAMANE
SHIMOGA - 577 202
2. SRI.H.M.SURESH
S/O MUDDU POOJAR
MAJOR, R/O B-52,
"SINCHU" 100 FEET ROAD,
GOPALA GOWDA EXTENSION, GOPALA,
SHIMOGA - 577 202
2
3. THE MANAGER
DIVISIONAL OFFICE
THE UNITED INDIA INSURANCE COMPANY LTD.,
P.B.NO.88, 1187/197,
2ND FLOOR, RUB BUILDING
AA CIRCLE,BH.ROAD,
SHIMOGA - 577 202
4. THE MANAGER
BRANCH OFFICE,
THE UNITED INDIA INSURANCE CO.LTD.,
DAVANGERE - 577 001
... RESPONDENTS
(BY SRI. RAVISH BENNI, ADVOCATE FOR R3 AND R4
NOTICE TO R1 AND R2 ARE DISPENSED WITH
VIDE ORDER DATED 19.01.2015)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.8.2013 PASSED IN MVC
NO.1218/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE & MEMBER, MACT-IV, DAVANAGERE PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned advocate appearing for the
appellant-claimant and the learned advocate appearing for
respondents Nos.3 and 4 - the insurance company.
2. The appeal is filed impugning the judgment and
award dated 26.08.2013 passed in MVC No.1218/2011 on
the file of Principal Senior Civil Judge and Member, Motor
Accident Claims Tribunal-IV, Davanagere.
3. The Tribunal has awarded a compensation of
Rs.2,05,000/- along with interest of 6% per annum from
the date of the petition till the date of payment. The
Tribunal has fastened liability of 25% on the insurer and
75% on the appellant-claimant on the ground that the
claimant himself has contributed to the accident. The
claimant is in appeal seeking enhancement of compensation
and also challenging the award imposing 75% liability on
him.
4. There is no dispute that the accident took place on
22.09.2011 between two vehicles namely, motor bike
bearing registration No.KA-17-EE-4867 and also car bearing
registration No.KA-15-M-1674. FIR is registered based on
the statement of the claimant which was recorded in the
hospital. After an investigation, the police filed a charge
sheet against the driver of the car. The Tribunal has held
that the appellant-claimant himself has contributed to the
accident, by interpreting the spot mahazar, which is at
Ex.P.2. This Court perused the spot mahazar (Ex.P.2).
Based on Ex.P.2, the Tribunal has held that the claimant
has contributed 75% to the accident.
5. The spot mahazar does not reveal that the
claimant has contributed to the accident in question and the
sketch of place of accident is also not been produced before
the Tribunal. The police have filed a charge sheet against
the driver of the car. No evidence is adduced on behalf of
the insurer, to disbelieve the charge sheet. The inference
from the charge sheet relating to negligence and cause of
the accident is not rebutted. In the absence of any such
rebuttal evidence to disbelieve the charge sheet, this
Court is of the view that the finding of the Tribunal that the
claimant is responsible for the accident to the extent of
75% is liable to be set aside and as such, the said finding is
set aside. Entire liability is on the insurer to satisfy the
award.
6. Claimant claims that he was doing agricultural
work and on account of the accident and he is not able to
do his work as he did before the accident. He suffered a
fracture of both legs. The doctor who treated the claimant
is examined as P.W.2 and he assessed the disability to the
extent of 35% to 40% to the lower limb. The doctor in the
cross-examination stated that the claimant can carry out
the work which he used to do before the accident. The
Tribunal has assessed the disability of the claimant to the
whole body at 10% to 12%. There is no functional
disability as far as the claimant is concerned. Under the
circumstances, the contention of the learned Counsel for
the appellant-claimant that the claimant suffered from a
functional disability is to be rejected.
7. The evidence on record would indicate that the
claimant was inpatient for 44 days in the hospital. The
Tribunal has awarded Rs.25,000/- under the head of 'pain
and suffering', Rs.83,000/- towards 'medical expenses' and
Rs.20,000/- towards attendant charges.
8. No compensation is awarded under the head of
'loss of amenities in life and also under the head of 'loss of
income during the laid up period'.
9. The fact that the claimant has suffered 35% to
40% disability to the lower limb is not disputed. The
claimant was an inpatient in the hospital for 44 days.
Therefore, this Court is of the view that the compensation
under the head of 'pain and sufferings is to be enhanced to
Rs.60,000/- from Rs.25,000/- awarded by the Tribunal.
10. The Tribunal has not awarded any compensation
towards 'loss of amenities in life. The claimant was aged
40 years at the time of the accident. Since the disability to
the lower limb is assessed at 30% by the Tribunal, which is
not disputed by the insurer, Rs.40,000/- is to be awarded
under the head of 'loss of amenities in life.
11. The claimant was hospitalised for 44 days and
the Tribunal has failed to take note of the fact that the
claimant has suffered a loss of income during the laid-up
period. Therefore, this Court is of view that Rs.19,500/-
(Rs.6,500 x 3 months) under the head of 'loss of income
during the laid up period' is to be awarded.
12. Thus, the claimant would be entitled to
compensation as under:
Sl. Particulars Amount (Rs)
No.
1 Pain and sufferings 60,000-00
(60,000/- - 25,000/-)
2 Loss of amenities in life 40,000-00
3 Loss of income during the laid-up 19,500-00
period
4 Medical expenses 83,000=00
5 Attendent charges 20,000=00
Loss of amenities 75,000=00
Total 2,97,500-00
13. Hence the following.
ORDER
(i) The appeal is allowed in part.
(ii) Impugned judgment and award dated 26.08.2013
passed in MVC No.1218/2011 by the Principal Senior Civil
Judge and Member, Motor Accident Claims Tribunal-IV,
Davanagere, is modified.
(iii) The claimant is entitled to enhanced compensation of
Rs.2,97,500/- in addition to what has been awarded by the
Tribunal. The enhanced compensation shall carry interest @
6% p.a. from the date of petition till the date of realization.
However, the appellant-claimant is not entitled to interest
for 107 days in terms of the order dated 10.11.2017 passed
on I.A. No.1/2014 seeking condonation of delay in filing the
appeal.
(iv) The entire compensation shall be paid by the insurer.
(v) The enhanced compensation shall be released in
favour of the claimant.
Sd/-
JUDGE
Cs/-
