Revappa S/O Appanna Metri vs Smt.Bangaravva W/O Kallappa ...
2022 Latest Caselaw 8066 Kant

                              1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 3RD DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR


                MFA No.200277/2015 (MV)

BETWEEN:

REVAPPA S/O APPANNA METRI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. BALLLLI, NOW RESDNG AT
GACHINAKATTI COLONY,
BIJAPUR-586101.
                                                .....APPELLANT

(BY SRI.KOUJALAGI CHANDRAKANT LAXMAN, ADVOCATE)

AND:

1.     SMT. BANGARAVVA
       W/O KALLAPPA KAMBALE,
       AGE: 49 YEARS,
       OCC: OWNER OF THE TEMPO,
       R/O: AGASANAL, TQ: INDI,
       DIST: BIJAPUR-586208.

2.     THE DIVISIONAL MANAGER,
       UNITED INDIA INSURANCE CO. LTD.,
       S.FRONT ROAD, BIJAPUR-586101.
                                          .....RESPONDENTS

(BY SRI. SHIVANAND PATIL, ADVOCATE FOR R2)
      NOTICE TO R1 SERVED;

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND MODIFY
                                2



THE JUDGMENT AND AWARD DATED 27.11.2014 PASSED IN MVC
NO.620/2010 ON THE FILE OF THE MOTOR ACCIDENT CLAMS
TRIBUNAL BIJAPUR AT BIJAPUR. AND ALLOW THIS APPEAL TO
GRANT THE COMPENSATION AMOUNT BY RS.12,81,000/- ONLY AS
CLAIMED BY THE APPELLANT BEFORE THIS HON'BLE COURT, ETC.

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

                        JUDGMENT

This appeal is filed by the Appellant-petitioner under

Section 173(1) of Motor Vehicles Act, 1988 ('MV.Act' for

short), challenging the judgment and award dated

27.11.2014 passed in MVC No.620/2010 by the MACT,

Bijapur ('Tribunal' for short).

2. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

3. The factual matrix leading to the case are that

on 29.03.2008 at about 12.30 hours, the claimant-

petitioner along with others was traveling in a tempo

bearing registration NO.KA-31/2375 on Zalaki-Chadachan

road. When they reached near Dever Nimbargi cross,

near Bandarkamate land, driver of the said tempo drove

it in a rash and negligent manner and lost control, as a

result the he dashed the tempo to the road side neem

tree resulting in the accident. Due to the said accident,

the petitioner sustained injuries along with other inmates.

Immediately, he was shifted to Primary Health Centre,

Chadchan and after first aid, he was shifted to Private

Hospital, Miraj, wherein he has spent more than

Rs.1,50,000/-. The petitioner is an agriculturist and

earning Rs.6,000/- per month and due to the accidental

injuries, he is permanently disabled. Hence, he filed claim

petition seeking compensation of Rs.14,34,000/-.

4. The respondent No.1 is the owner and

respondent No.2-insurer and they filed their objections

denying the allegations and assertions made thereunder.

The respondent No.1 contended that the vehicle was duly

insured with respondent No.2 and hence he sought for

exonerating the respondent No.1 from paying any

compensation.

5. The respondent No.2 has denied the age,

occupation and income of the petitioner and further

contended that the policy was issued with one Pandurang

and the vehicle was transferred to Bangarewwa and the

same was not intimated and there was no privity of

contract between them. It is also alleged that there is

breach of policy conditions. Hence, sought for dismissal of

the claim petition.

6. After appreciating the oral and documentary

evidence, the tribunal has awarded the total

compensation of Rs.1,53,000/- with interest @ 6% p.a.

to the petitioner by fastening the liability jointly and

severally on respondent Nos.1 and 2.

7. Being aggrieved by the award of the tribunal,

the appellant-petitioner has filed this appeal for

enhancement.

8. Heard the arguments advanced by the learned

counsel for the appellant-petitioner and learned counsel

for respondent No.2/Insurance Company. Perused the

records.

9. Learned counsel for the appellant-petitioner

would contend that the tribunal has taken the income of

the petitioner on lower side. Further, he would contend

that the disability was also taken on lower side and no

proper compensation was awarded under the head of

pain and suffering and loss of amenities. As such he

would seek for enhancement of compensation.

10. Per contra, learned counsel for the respondent

No.2/Insurance Company would support the judgment

and award passed by the tribunal.

11. Having heard the arguments and perusing the

records, it is evident that the petitioner has suffered

injuries in the accident dated 29.03.2008 involving the

tempo bearing registration No.KA-31/2375 and there is

no dispute regarding the involvement of the vehicle and

the petitioner sustaining injuries. Further, the tribunal

has fastened liability on insurer and the same is not

challenged. The tribunal has taken the income of the

petitioner @ Rs.4,000/- per month. However, as per the

Lok Adalat Chart, this Court is consistently taking the

notional income of Rs.4,250/- per month for the

accident occurred in the year 2008.

12. The Tribunal has taken the disability @ 10% to

the whole body. The Doctor-PW.2 has stated that the

disability is at 42% to 45%. But, however, the Tribunal

has given reasons for discarding his evidence, as he is

not the Doctor, who treated the claimant. Further, he

has admitted in his cross-examination that the fractures

were united and he is examined the claimant after six

years after the accident. Looking to these aspects, the

Tribunal has taken disability @ 10% to the whole body.

Considering the nature of injuries, it appears to be on

lower side. Hence, the disability can be taken at 12% to

the whole body. Apart from that the Tribunal has applied

the multiplier of '14'. As the age of the claimant is 40

years as on the date of accident, the multiplier applicable

is '15', but the Tribunal has taken the multiplier '14',

which is also on lower side. Hence, loss of future income

would work-out to Rs.91,800/- (Rs.4,250 x 12 x 15 x 12

divided by 100). Hence, the claimant is entitled for

Rs.91,800/- under the head of 'Loss of future income'

as against Rs.67,200/- awarded by the Tribunal.

13. The Tribunal has awarded compensation of

Rs.30,000/- under the head of 'Pain and Suffering',

which does not call for any interference.

14. Further, under the head of 'Medical Expenses',

compensation of Rs.43,421/- is awarded considering the

medical bills, which also does not call for interference.

However, the Tribunal has not awarded compensation

under the head of 'Loss of amenities' and considering the

fracture suffered, the claimant is entitled for

Rs.30,000/- under this head.

15. The Tribunal has awarded Rs.12,000/- under

the head of 'Loss of earning during laid up period', which

is on lower side and the claimant is entitled for

Rs.12,750/- (Rs.4,250x3).

16. In view of the above, the claimant is entitled

for revised compensation under the following heads:

Sl.No.     Heads                         Amount (Rs.)

  1      Pain & Suffering                  30,000.00

  2      Medical Expenses                  43,421.00





  3        Loss of earning during Laid-            12,750.00
           up period

  4        Loss of future earning                  91,800.00

  5        Loss of amenities                       30,000.00

           Total                                 2,07,971.00

           (-) Award of Tribunal                 1,53,000.00

           Enhanced Compensation                  54,971.00

17. In the facts and circumstances of the case,

the appeal needs to be allowed in part. Accordingly, I

proceed to pass the following:

ORDER

i) The appeal is allowed-in-part. The judgment and award dated 27.11.2014 passed by the MACT, Bijapur in MVC No.620/2010 is modified. The appellant/claimant is entitled for total compensation of Rs.2,07,971/- as against Rs.1,53,000/- awarded by the Tribunal. The enhanced compensation of Rs.54,971/-

(Rs.2,07,971 - Rs.1,53,000) shall carry interest

at the rate of 6% from the date of petition till the date of realisation.

ii) The Respondent-Insurance Company is directed to deposit the enhanced compensation with interest at 6% pa., from the date of petition till the date of payment, within six weeks from the date of this judgment.

iii) After deposit of the award amount, the entire enhanced compensation amount shall be released in favour of the appellant/claimant.

Sd/-

JUDGE

msr/KGR*