Prakash S/O Basappa Managuli vs Rangappa S/O Bhimappa Gudadar
2022 Latest Caselaw 10775 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 14TH DAY OF JULY, 2022

                       BEFORE

   THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

              MFA NO.100531/2016 (MV-I)
BETWEEN:

PRAKASH
S/O BASAPPA MANAGULI
AGE: 43 YEARS,
OCC: BUSINESS,
NOW NIL,
R/O: JAMKHANDI,
DIST: BAGALKOT.
                                        ...APPELLANT
      (BY SHRI : HARISH S MAIGUR, ADVOCATE)
AND

1 . RANGAPPA
    S/O BHIMAPPA GUDADAR,
    AGE ABOUT 34 YEARS,
    OCC: AGRICULTURE,
    R/O: BABALADI,TQ: JAMKHANDI,
    DIST: BAGALKOT.

2 . THE BRANCH MANAGER,
    THE ORIENTAL INSURANCE CO. LTD.,
    BRANCH OFFICE,
    VISWANATH PLAZA, 1ST FLOOR,
    RANNA CIRCLE, MUDHOL,
    DIST: BAGALKOT.
                                      ..RESPONDENTS
      (By SHRI : G. N. RAICHUR, ADVOCATE FOR R2;
      NOTICE TO R1 IS DISPENSED WITH)

                        ***
                             2




      MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED:30.11.2015,
PASSED IN MVC.NO.94/2010 ON THE FILE OF THE
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., & MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL NO.VI,
JAMKHANDI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION IN THE INTEREST OF JUSTICE AND
EQUITY.

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


                         JUDGMENT

This appeal is directed against the judgment and

award dated 30.11.2015 passed by the Addl. Senior Civil

Judge and M.A.C.T. No.VI at Jamkhandi (hereinafter

referred as 'tribunal' for short) in M.V.C. No.94/2010 by

the claimant. This appeal is premised on the ground of

inadequate and meager compensation awarded by the

Tribunal.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as

per their status before the Tribunal.

4. Brief facts of the case are as under:

On 05.09.2009 when the claimant was proceeding

from Gopal Chamber to Ambedkar Circle at Jamkhandi by

walk on left side of the road along with his friends Suresh

Kadakol and Prakash Mathapati and when they came near

Jambagi Cross at 9.00pm at that time one Tractor and

Trailer bearing Registration No. KA-48 T-213 and 214

came in a rash and negligent manner and in a high speed

so as to endanger human life and dashed against the

claimant from behind.

5. Due to the accident claimant fell down and

sustained grievous injuries. Immediately he was shifted

to KLE Hospital, Jamakhandi and thereafter he was shifted

to KLE Hospital, Belgaum, where he was admitted as

inpatient for one month and thereafter he took treatment

in other private hospital.

6. It is the case of the claimant that he has spent

more than Rs.1,50,000/- for medical expenses and he

require additional amount to undergo further treatment to

the injuries sustained by him in the accident.

7. The claimant was hale and healthy prior to

accident and was doing clothing and textile business and

earning Rs.10,000/- per month. He was the sole bread

winner in the family and due to the occurrence of accident

and injuries sustained he is unable to speak and cannot do

his business. He became partially disabled and the said

disability has effected his future earning capacity.

Therefore, he has filed a claim petition seeking for

compensation for the injuries and for loss of future earning

capacity.

8. On notice being issued, respondent No.1 -

Owner of the Tractor and Trailer and respondent No.2 -

Insurer of the said vehicle have appeared. Respondent

No.1 - Owner of the offending vehicle appeared through

Counsel and filed a detailed objections.

9. It was pleaded by the respondent No.1 that

the injuries were not caused to the claimant due to

occurrence of accident and vehicle belonging to

respondent No.1 was not involved in the accident and not

responsible for causation of the injuries by the claimant.

He further pleaded that the driver of the Tractor and

Trailer did not possess valid and effective driving license

as on the date and time of accident. He further pleaded

that since he has insured his vehicle with the respondent

No.2 - Insurer and in view of the policy being in force and

is covered to his vehicle if any liability is fastened by this

Court against the him the same will have to be

indemnified by respondent No.2.

10. Respondent No.2 - Insurer also appeared and

filed its detailed statement of objections, inter alia denied

the occurrence of accident, income, avocation and injuries

having been sustained by the claimant and disputed the

medical expenses and future medical expenses sought for

in the claim petition. It was further pleaded that accident

did not occur due to rash and negligent driving of the

Tractor and Trailer and in fact, the accident occurred due

to the negligence of the claimant himself. It is also

pleaded that the driver of the offending vehicle did not

possess valid and effective driving license and hence there

is breach of terms and conditions of the policy. Hence, he

seeks to dismiss the claim petition filed by the claimant.

11. On the basis of pleadings, Tribunal framed

relevant issues for consideration.

12. In order to substantiate the issues and to

establish the case, claimant got himself examined as PW1

and got marked Ex.P1 to 19. Claimant has also examined

Doctor as PW2. On behalf of respondent No.2 - Insurer,

its Manager was examined as RW1 and ARTO, Jamkhandi

as RW2 and in support of its case got marked Ex.R1 -

Copy of the Insurance Policy and Ex.R2 - Extract of

driving licence.

13. On the basis of pleadings, evidence both oral

and documentary, the tribunal awarded the total

compensation of Rs.2,38,000/- along with interest @ 6%

p.a. and held respondents No.1 and 2 would be jointly and

severally liable to pay the compensation.

14. Being aggrieved by the said Judgment and

Award passed by the Tribunal, appellant-insurer is before

this Court in appeal.

15. Learned counsel appearing for claimant

vehemently contends that the judgment and award passed

by the Tribunal is erroneous as it is contrary to the

material evidence on record and the same is liable to be

modified. He further contends that the Tribunal has failed

to consider the evidence adduced by Doctor-PW2 with

regard to disability to the extent of 25% and having

ignored the same Tribunal has committed gross error

thereby causing mis-carriage of justice to the claimant.

16. It is also contended by the learned counsel

that the Tribunal has committed serious error in not

awarding suitable compensation under the head pain and

sufferings, loss of income during the laid up period and

Tribunal has also committed an error in not awarding any

compensation under loss of amenities. So also no amount

is awarded towards attendant charges, conveyance and

nourishment. On the basis of these submissions he seeks

to enhance the compensation and modify the judgment

and award passed by the Tribunal.

17. Per contra, learned counsel appearing on

behalf of respondent - Insurer contends that the Tribunal

has awarded reasonable compensation commensurate to

the injuries sustained by the claimant. Hence, interference

at the hands of this Court would not be required. He

further contends that Tribunal, in fact, assessed excess

income in comparison to the Notional Income Chart

prescribed by the Legal Services Authority. Therefore, the

other compensation awarded under different heads are

just and reasonable and the same does not all for

interference by this Court.

18. Learned counsel for respondent - Insurer

further contends that the Tribunal has rightly assessed the

disability at 10% in view of the evidence of the Doctor -

PW2, who has adduced evidence and given disability

certificate, but he is not the doctor who treated the

claimant. Therefore, he contends that the judgment and

award passed by the Tribunal in accordance with material

evidence placed on record and the same does not call for

any enhancement and he seeks to dismiss the appeal.

19. Having heard learned counsel for the appellant

and the respondents, the points that would arise for

consideration are;

     (1)    Whether     claimants     are     entitled    to
            enhancement of compensation?

     (2)    What order?

20. Certain undisputed facts are accident occurred

on 05.09.2009, wherein Tractor and Trailer stated above

was involved in the accident due to which the claimant

suffered grievous injuries and simple injuries to various

parts of his body. It is also not in dispute that claimant

having been admitted in hospital, having obtained

medical treatment and incurred financial expenditure for

the same. In order to substantiate these aspects claimant

has examined himself and got produced Ex.P1 to P5 being

the police records for laying of charge sheet and criminal

case against the driver of the offending vehicle. These

documents being police records are not questioned,

challenged or disputed by the owner of the offending

vehicle. No material is produced before the Tribunal before

this Court to disprove the veracity of the said documents

at Ex.P1 to P6. In view of the same, it can be safely said

that Tribunal has rightly come to a conclusion with regard

to involvement of vehicle in the accident taken place on

05.09.2009, the charge sheet having been laid and

criminal proceedings having been proceeded against the

driver of the Tractor and Trailer. Hence, the rash and

negligent driving by the driver of the Tractor and Trailer

and the liability fastened on the owner of the offending

vehicle, cannot be disputed and the same is rightly

appreciated and does not require to be interfered and it is

confirmed by this Court.

21. Now, coming to the age, avocation and income

of the claimant, no doubt, the claimant has stated that he

was earning Rs.10,000/- per month by doing clothing and

textile business. Admittedly, it is seen that there is no

material evidence placed before the Court regarding proof

of income. In the absence of any proof of income, the

Courts are left with no option but to do a guess work and

in order to do a standard guess work without variation,

the Legal Services Authority has prescribed the notional

income chart, wherein the income is stipulated at

Rs.5,000/- for the accident occurred in the year 2009.

However, tribunal has assessed the income of the claimant

at Rs.6,000/- p.m. There is no cross-objection or appeal

preferred by the insurance company to counter the said

assessment of income made by the tribunal. Hence, I do

not wish to interfere with the assessment of income made

by the tribunal at Rs.6,000/- and the same is retained.

22. Claimant being 37 years old at the time of

accident, the appropriate multiplier applicable would be 15

as held by the Apex Court in the case of Sarla Verma

(Smt) and others vs. Delhi Transport Corporation

and another, reported in (2009) 6 Supreme Court

Cases 121, which is not seriously disputed. Hence, the

same is kept intact and not interfered.

23. The claimant got examined the doctor-PW.2,

who has adduced evidence before the Court and has

produced Ex.P19, the disability certificate. The wound

certificate at Ex.P4 clearly demonstrates the injuries

sustained by the claimant, which are six in numbers i.e,

1) Fracture of hard palate;

2) Fracture of ramus of right hemi mandible;

3) Multiple fractures of zygomatic arch, lateral wall of orbit, anterior wall of maxillary antrum on left side maxillary sinus bleed;

4) CLW of 4x 1 circumstances over left shoulder;

5) CLW of 2 x 4 circumstances over chin;

6) Abrasions over right thigh and blunt injury to pelvis.

24. The injuries at 1 to 3 are grievous in nature

and injuries at 4 to 6 are simple in nature. The doctor has

adduced evidence by stating that claimant has suffered

25% permanent disability to the whole body. The grievous

injuries are fracture of hard palate; fracture of ramus of

right hemi mandible; multiple fractures of zygomatic arch,

lateral wall of orbit, anterior wall of maxillary antrum on

left side maxillary sinus bleed.

25. On careful analysis of the evidence adduced by

the doctor and Exs.P4 and P17, it is apparent that the

claimant has sustained more than 3 fractures. The

assessment of disability assessed by the doctor is at 25%

as permanent disability. The tribunal has reduced said

disability to 10%. But no proper reasoning has been

assigned as to why the disability is toned down to 10%.

While assessing the disability, the functional disability will

have to be seen with regard to his avocation of job. In the

present case on hand, claimant has sustained more than

three fractures, which are stated above. In view of these

fractures and other injuries sustained which are stated to

be grievous in nature, certainly claimant would be put to

certain difficulty in performance of his regular day to day

work of doing cloth business whether he is selling cloths

sitting at his shop or by moving from one place to other.

Tribunal cannot step into the shoes of experts and reduce

a disability without there being any proper reasons

assigned to it. Unless, the tribunal comes to a proper

reason on the basis of which the disability is reduced,

same cannot be set to be proper and appropriate as the

tribunal cannot sit in the arm chair of an expert to assess

the permanent disability or functional disability.

26. In the case on hand, learned counsel for the

insurer submits that PW2, the doctor is not the doctor who

has treated the patient. He has only made analysis of

report submitted to him. However, I do not agree with the

assessment of disability made by the tribunal with regard

to 10% as in comparison to 25% assessed by the doctor-

PW2. However, at least 20% disability would certainly be

suffered by the claimant in performance of his day to day

work or activities.

27. Learned counsel Shri G.N.Raichur contends

that it is the duty of claimant to establish before the Court

with regard to the functional disability and loss of income

due to the injuries sustained by him in the road traffic

accident for assessment of disability. It is his contention

that in the present case, no such reason or evidence has

been placed on record to show the loss of income in his

earning capacity. However, what has to be seen is the

injuries sustained are grievous in nature. There would be

certainly difficulty for the claimant to do his day to day

activities in view of the grievous injuries as stated in Ex.P4

and it would not be possible for the claimant to earn in the

same energetic and vigorous manner, as he was able to

do prior to occurrence of accident. Accordingly, I deem it

appropriate to assess the disability at 20% as against 10%

assessed by the tribunal. In view of the above, loss of

future earning capacity due to the permanent disability

would be as follows;

Rs.6,000/- x 12 x 20% x 15 =Rs.2,16,000/-

as against Rs.1,08,000/- awarded by the

tribunal.

28. Towards medical expenses, the tribunal has

awarded Rs.1,00,000/- on the basis of actual bills

produced at Ex.P11 by the claimant. I do not wish to

interfere in the same, as the same is awarded on the

actual basis.

29. Towards pain and suffering, the tribunal has

awarded Rs.20,000/-. This Court is of the opinion that the

said amount is on the lower side, in view of the 3 grievous

injuries having been suffered by the claimant. Accordingly,

the same is increased to Rs.40,000/-.

30. Towards food, transport and attendant

charges, the tribunal has not awarded any amount

separately. Where as the claimant was inpatient for a

period of 9 days. Therefore, the claimant would be entitled

to Rs.10,000/- under the said head.

31. The tribunal has awarded Rs.10,000/- under

the head of loss of income during the laid up period. In

view of three grievous injuries suffered by the claimant, it

would not be possible for the claimant to immediately get

back to the work, even if he is discharged from the

hospital. Normally 3 months period is awarded, in view of

9 days having been admitted in the hospital. Therefore,

compensation towards loss of income during laid up would

be at Rs.6,000/- x 3= Rs.18,000/-.

32. The tribunal has not awarded any amount

under the head loss of amenities. I deem it appropriate to

award Rs.30,000/- under this head.

33. In view of the same, the claimant is entitled to

enhancement of compensation as per the table mentioned

hereunder.

Sl.No.                 Heads.                     Amount in
                                                    (Rs.)
1.       Loss of future earnings                    2,16,000
         (Rs.6,000/- x 12 x 15 x 20% =
         Rs.2,16,000/-)
2.       Pain and sufferings                          40,000
3.       Food, transport     and      attendant       10,000
         charges
4.
         Loss of amenities in life.                   30,000
5.       Medical expenses                           1,00,000




6.
         loss of income during the laid up              18,000
         period (Rs.6,000 x 3=18,000/-)

                                        Total:        4,14,000

                 Less: awarded by tribunal:           2,38,000

                   Enhanced compensation:             1,76,000

34. Accordingly, I pass the following:

ORDER

i) Appeal is partly allowed.

ii) The judgment and award dated 30.11.2015, passed

by the Addl. Senior Civil Judge and JMFC and

M.A.C.T.No.VI, in MVC No.94/2010 is modified.

iii) The claimant is entitled for a total enhancement of

Rs.4,14,000/- as against Rs.2,38,000/- awarded by

the tribunal.

iv) All other terms and conditions stipulated by the

tribunal shall stands intact and it is not interfered.

v) The respondent-insurer shall pay the enhanced

compensation with interest at 6% p.a. from the date

of petition till the date of realization, within a period

of four weeks from the date of receipt of a copy of

this order, to be deposited before the jurisdictional

tribunal.

vi)    No order as to costs.



                                           SD/-
                                          JUDGE

VK
AM/-