Karnataka High Court
Bhupanna vs Prakash And Anr on 2 June, 2022
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
MFA No.201465/2021 (MV)
BETWEEN:
Bhupanna S/o Hanamant @
Hanamantappa Chimmalagi,
Age: 61 years, Occ: Agriculture,
R/o Biraldinni, Tq. B.Bagewadi,
Dist. Vijaypur, Now at Jal Nagar,
Vijaypur - 586 101.
... Appellant
(By Sri. Shivashankar H. Manur, Advocate)
AND:
1. Prakash S/o Basavaraj Alur,
Age: 46 years, Occ: Business,
R/o: Opp: ITI College, Solapur road,
Vijaypur - 586 101.
2. The Branch Manager,
Oriental Insurance Co. Ltd.,
S.S. Front Road,
Vijaypur - 586 101.
... Respondents
(V/O dated 27.01.2022 notice to R1 is dispensed with;
Sri. J. Augustin, Advocate for R2)
2
This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to enhance the compensation amount
by suitably modifying the judgment and award dated
14.09.2020 passed by the II Addl. Senior Civil Judge and
Motor Accident Claims Tribunal No.VII, Vijayapura, in MVC
No.615/2015.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This appeal is filed by the claimant under Section
173(1) of the Motor Vehicles Act, challenging the judgment
and award dated 14.09.2020 passed in MVC No.615/2015
by the II Additional Senior Civil Judge and MACT-VII,
Vijayapura (hereinafter referred to as 'the Tribunal' for
short), seeking enhancement of compensation.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Tribunal.
3. The brief factual matrix leading to the case are
that, on 05.06.2014, the claimant was coming from field
towards Biraldinni village on NH-50 road and when he
came near Biraldinni Cross, the Tata 407 goods vehicle
bearing Reg. No.KA-28/A-9361 came from opposite
direction driven by its driver in a high speed as well as in
rash and negligent manner and dashed to the claimant
resulting in the accident, due to which the claimant
sustained injuries to both his legs and other parts of the
body. Immediately he was shifted to Dr. Daddennavar
Hospital in Bagalkot and he has taken treatment for 25
days as an indoor patient. The claimant was underwent
investigations and surgeries for more than two times and
implants have been inserted. The claimant was aged about
55 years prior to his accident and was earning Rs.10,000/-
per month and due to accidental injuries, he has become
permanently disabled and hence lost his income. As such,
the claim petition is filed under Section 166 of the M.V.
Act, claiming compensation of Rs.8,00,000/- against the
respondents.
4. Respondent No.1 though served, did not
appear before the Tribunal and was placed ex-parte.
5. Respondent No.2-insurer has appeared
through counsel and filed objection statement denying the
allegations and assertions made thereunder. It is denied
that the accident is because of the actionable negligence
on the part of the driver of the Tata goods vehicle and the
age, occupation as well as income of the claimant came to
be denied. It is further asserted that the driver of the
offending vehicle was not possessing valid and effecting
driving licence and hence, the claim came to be disputed.
6. The Tribunal, after appreciating the oral and
documentary evidence has awarded total compensation of
Rs.2,52,900/- with interest at the rate of 6% p.a. from the
date of petition till its realisation by fastening the liability
on both respondent Nos.1 and 2 jointly and severally.
7. Being dissatisfied with the quantum of
compensation on the ground that it is on the lower side,
the claimant has filed this appeal, seeking enhancement of
compensation.
8. Heard the arguments advanced by the learned
counsel for the appellant and the learned counsel for
respondent No.2-insurer. Perused the records.
9. The learned counsel for the appellant/claimant
would contend that the Tribunal has taken the monthly
income at the rate of Rs.4,000/-, which is on the lower
side and considering the fact that the accident has
occurred in the year 2014, the notional income ought to
have been taken at the rate of Rs.7,500/- per month. He
would further contend that considering the medical
evidence, the disability taken by the Tribunal at 8% is on
the lower side. Hence, he would seek for enhancement of
the compensation.
10. Per contra, learned counsel for respondent
No.2-insurer would support the judgment and award
passed by the Tribunal.
11. Having heard the arguments and perusing the
records, it is evident from the records that the claimant
has met with an accident on 05.06.2014 involving Tata
407 goods vehicle bearing Reg. No.KA-28/A-9361. The
driver of the offending vehicle was prosecuted before the
Criminal Court, which is evident from Ex.P6-Charge Sheet.
The vehicle was also insured with respondent No.2 and
there is no dispute regarding this aspect. Apart from that,
the Tribunal has fastened the liability on respondent Nos.1
and 2 jointly and severally, but the insurance company has
not disputed the liability.
12. On perusal of the judgment of the Tribunal, it
is evident that the Tribunal has taken the monthly income
of the claimant at Rs.4,000/-. Admittedly, the accident has
occurred in the year 2014 and consistently this Court is
taking the notional income in respect of the accidents
occurred in the year 2014 as Rs.7,500/-. Further, there is
no serious dispute regarding the age of the claimant and
the Tribunal has rightly applied the multiplier of 9.
13. The other main dispute is regarding disability.
The medical evidence disclose that the petitioner has
suffered injury on the left hip joint and fracture of both the
lower limbs. The medical evidence disclose that the doctor
has opined 20% to 25% disability to right lower limb and
25% to 30% disability to left lower limb. However, the
Tribunal after considering the evidence on record has
taken the disability at 8% to the whole body, but however,
the Tribunal has not given any specific reasons for
restricting the disability to 8%. Hence, considering the
nature of the injuries sustained, in my considered opinion,
it is just and proper to take disability at 13% to the whole
body. Under these circumstances, the loss of future
income due to disability would work out to Rs.1,05,300/-
(Rs.7500 x 12 x 9 x 13%).
14. The Tribunal has awarded compensation of
Rs.30,000/- towards pain and suffering and it does not call
for any interference.
15. Further, after appreciating the evidence and
considering the medical bills, the Tribunal has awarded
compensation of Rs.1,38,300/- towards medical expenses,
which also does not call for any interference.
16. The Tribunal has also awarded Rs.10,000/-
towards food and nourishment, Rs.10,000/- towards
attendant charges and Rs.10,000/- towards conveyance
charges, which also does not call for any interference.
17. Further, under the head 'loss of amenities and
future unhappiness', the Tribunal has awarded
Rs.20,000/-, which also does not call for any interference.
18. The learned counsel for the appellant
contended that considering the nature of injuries, the
claimant was not able to attend his normal work for at
least four months. Hence, he would contend that the
Tribunal has not awarded any compensation towards loss
of income during laid up period. Considering the nature
and gravity of the injuries, in my considered opinion, the
claimant is entitled for compensation of Rs.22,500 towards
loss of income during laid up period for three months.
19. As such, the claimant is entitled for total
compensation under various heads as under:
Sl. Heads Amount
No.
1. Pain and suffering Rs.30,000/-
2. Loss of amenities and Rs.20,000/-
future unhappiness
3. Loss of future income Rs.1,05,300/-
4. Medical expenses Rs.1,38,300/-
5. Loss of income during laid Rs.22,500/-
up period
6. Food & nourishment Rs.10,000/-
7. Attendant charges Rs.10,000/-
8. Conveyance charges Rs.10,000/-
Total Rs.3,46,100/-
Hence, the claimant is entitled for total
compensation of Rs.3,46,100/- along with interest at the
rate of 6% p.a. as against Rs.2,52,900/- awarded by the
Tribunal.
20. Under such circumstances, the appeal needs to
be allowed in part. Accordingly, I proceed to pass the
following:
ORDER
i. The appeal is allowed in part.
ii. The appellant/claimant is held entitled for total
compensation of Rs.3,46,100/- as against
Rs.2,52,900/- awarded by the Tribunal.
iii. The enhanced compensation of Rs.93,200/-
(Rs.3,46,100/- less Rs.2,52,900/-) shall carry
interest at the rate of 6% p.a. from the date of
petition till its realisation.
iv. The primary liability is fastened on respondent
No.2-insurer and he is directed to deposit the
enhanced compensation with interest accrued
thereon within six weeks from the date of this
order.
v. The entire enhanced compensation shall be
released in favour of the claimant.
Sd/-
JUDGE
LG
