Karnataka High Court
Sri. Nagesh Chandrashekhar Billa vs The Manager on 3 June, 2022
Bench: Pradeep Singh Bypsyj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.24750/2011 (MV-I)
BETWEEN:
SRI. NAGESH CHANDRASHEKHAR BILLA,
AGE: 24 YEARS, OCC: STUDENT/PART TIME JOB,
R/O H. NO. 837/C, VIDYARANYA NAGAR,
GADAG ROAD, HUBLI. NOW AT SAMBRA ROAD,
GANDHI NAGAR, BELAGAVI
...APPELLANT
(BY SHRI B. M. PATIL, ADVOCATE)
AND:
1. THE MANAGER
SHRIRAM GENERAL INSURANCE CO. LTD.,
HAVING ITS OFFICE: 10003, 8,
RIICO INDUSTRIALAREA, SITAPUR,
JAIPUR, RAJASTHAN.
2. LALSAB IMAMSAB BAGWAN
AGE: MAJOR, OCC: BUSINESS,
R/O: GANDHI NAGAR, BILAGI,
DIST: BAGALKOT.
... RESPONDENTS
(BY SHRI SURESH S.GUNDI, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/
SEC.173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT & AWARD DTD:22-06-2011 PASSED IN
MVC NO.2450/2009, ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT-III & ADDL. M.A.C.T, BELAGAVI, IN
AWARDING COMPENSATION OF RS.7,37,000/- & INTEREST
AT RATE OF 8% FROM THE DATE OF PETITION & MAY
KINDLY BE MODIFIED BY ENHANCING TO RS.16,00,000/-
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WITH 18% INTEREST, IN THE INTEREST OF JUSTICE &
EQUITY.
THIS APPEAL COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant challenging
the judgment and award passed by Fast Tract Court-III and
Additional Motor Accident Claims Tribunal, Belagavi (for
short 'the tribunal') in MVC.No.2450/2009 dated
22.06.2011. This appeal is founded on the premise of
inadequacy of compensation.
2. Parties to the appeal shall be referred to as per
their status before the tribunal.
3. Brief facts of the case is as under:
On 18.10.2009, claimant and his friend
Joseph.M.Adikalswamy were proceeding on motorcycle
bearing No.KA.25/W-5760 from Hubballi to Goa viz
Belagavi. Claimant was riding the motorcycle while his
friend Joseph was a pillion rider. The motorcycle was ridden
in a slow and cautious manner on the left side of the road
and when they reached near railway bridge Khanapur on
NH-4 A road at about 10:15 hours, at that time a truck
bearing No.KA.28/A-3726 driven by its driver in a rash and
negligent manner came in a high speed from the opposite
direction so as to endanger human life and safety lost
control of the vehicle and dashed against the claimants
motorcycle causing the accident. Due to the accident
claimant sustained grievous injuries so also the pillion rider.
It is stated that claimant had to incur huge expenditure for
the medical treatment and other miscellaneous expenses.
Claimant was hale and healthy prior to the date of accident
and in view of injuries sustained in the accident he has
sustained permanent physical disability and lost future
earning capacity. Hence, he has filed a claim petition before
the tribunal seeking compensation.
3.2. On service of notice, respondent No.1 remained
absent and was placed exparte. Whereas respondent No.2-
insurer of the offending vehicle has filed his detailed
statement of objections inter alia contending that the
accident occurred due to the rash and negligent riding of
the rider of the motorcycle, who did not have valid driving
licence, as on the date of accident.
3.3. The respondent-insurer also denied the age,
avocation and income of the claimant, also pleaded that
exorbitant amount of compensation is sought for by the
claimant. Respondent No.2-Insurer also took up the plea
that the driver of the offending car did not possess valid
and effective driving licence as on the date of accident and
that the owner of the offending vehicle has not complied
with mandatory provisions of Sections 134(c) and 158(b) of
the Motor Vehicles Act. It was further pleaded that the
claim petition is bad for mis-joinder and non-joinder of
parties as the owner and insurer of motorcycle were not
arrayed as parties in the claim petition. Accordingly, insurer
sought for dismissal of the claim petition.
3.4. On the basis of pleadings, the tribunal has
framed relevant issues for consideration.
3.5. In order to substantiate the issues and to
establish the case, the claimant got examined himself as
PW.1 and the Doctor as PW.2 and got marked documents
as Exs.P1 to P39. Whereas respondent No.2 adduced
evidence of RW1 and got marked Exs.R1 to R3.
3.6. On the basis of material evidence both oral and
documentary, the tribunal awarded the compensation of
Rs.7,37,000/- with interest @ 8% p.a. Respondent Nos.1
and 2 were jointly and severally held liable to pay
compensation. However, the tribunal directed respondent
No.2 to deposit the compensation amount.
4. Being aggrieved by the meager compensation
amount awarded, the claimant is before this Court seeking
enhancement of compensation.
5. It is the vehement contention of learned
counsel for appellant-claimant that the tribunal has erred in
awarding meager compensation and has not taken into
consideration the material evidence both oral and
documentary thereby causing miscarriage of justice to the
claimant. He further contends that the tribunal has not
taken into consideration the avocation of the claimant and
has assessed meager amount as income thereby
committing an error in not awarding just and reasonable
compensation. It is also contended that the tribunal has
erred in not awarding interest @ 9% and has awarded only
8% which is on the lower side. On the basis of these
submissions, he seeks to allow the appeal and to enhance
the compensation.
6. Per contra, learned counsel Shri Suresh Gundi
for the respondent-Insurer vehemently contends that the
judgment and award passed by the tribunal is in
accordance with material evidence both oral and
documentary and same does not call for interference at the
hands of this Court. He further contends that the claim
petition itself is liable to be rejected on the ground of non-
joinder and mis-joinder of proper parties. He contends that
the claimant has not impleaded the owner and insurer of
two wheeler, who were necessary and proper parties to the
case on hand. On the basis of these submissions, he seeks
to dismiss the appeal as the same does not merit
consideration.
7. Having heard the learned counsel for the
appellant-claimant and learned counsel for respondent-
Insurer, the points that would arise for consideration before
this Court are:
"i) Whether the tribunal has awarded meager
compensation, calling for interference by
this Court?
ii) Whether the claimant is entitled for
enhancement of compensation?
iii) What order ?"
8. Having perused the entire material evidence both
oral and documentary and original records and the
impugned judgment and award and having heard the
submissions of learned counsel, I am of the opinion that the
tribunal has committed an error in awarding meager
compensation thereby point Nos.1 and 2 are answered in
the affirmative i.e. in favour of the claimant. Therefore, the
claimant would be entitled for enhancement of
compensation for the reasons stated herein below:
(a) It is not in dispute that the accident occurred on
18.10.2009, claimant and his friend Joseph.M.Adikalswamy
were proceeding on motorcycle bearing No.KA.25/W-5760
from Hubballi to Goa viz Belagavi. Claimant was riding the
motorcycle while his friend Joseph was a pillion rider. The
motorcycle was ridden in a slow and cautious manner on
the left side of the road and when they reached near
railway bridge Khanapur on NH-4 A road at about 10:15
hours, at that time a truck bearing No.KA.28/A-3726 driven
by its driver in a rash and negligent manner came in a high
speed from the above said direction so as to endanger
human life and safety lost control of the vehicle and dashed
against the claimants motorcycle causing the accident.
(b) In order to substantiate and establish the case
claimant has got produced Exs.P1 to P7, which are the
Police records wherein the driver of the offending truck has
been charged with criminal offence by filing an FIR, spot
panchanama, MV report and charge sheet. There is no
dispute that the charge sheet has been laid against
offending truck for the offences punishable under Sections
279 and 338 of IPC and Section 134, 184 read with 187 of
M.V Act. There is no challenge made to the laying of
charge sheet either by the driver of the offending car or by
the respondents herein. It is also not the case of
respondent-Insurer that the said initiation of criminal
proceedings against the driver of the truck is fictitious and
concocted, so also, no contra material has been placed
before the Court before the tribunal or before this Court to
prove the same as invalid or not being genuine. In the
absence of such material before the Court and there being
no challenge to the charge sheet against the driver of
offending vehicle, the negligence is rightly attributed
against the driver of the offending truck by the tribunal.
(c) Coming to the aspect of age, avocation and
income of claimant, no doubt the claimant has averred that
he was working in private job city finance at home loan
recovery officer on a part time basis and he was sports man
in football and he was earning an income of Rs.4,000/- per
month. However, no material evidence with regard to proof
of income. Tribunal has assessed the income of claimant at
Rs.150/- per day and arrived at Rs.54,000/- per year, as no
material documents were placed by the claimant. In the
absence of any material proof with regard to income, the
tribunal and this Court are left with no other option but to
do guess work and same will have to be done in the
standard manner for which the Legal Services Authority
prescribed the notional income for the relevant year of
accident. In the present case though the tribunal has taken
the income at Rs.4,500/- per month, the same is lesser
than the chart value prescribed by the Legal Service
Authority.
(d) Admittedly, claimant was an extraordinary
sportsman, to be specific, a very good football player. To
substantiate the same, he has produced Exs.P26 to P31. In
order to show the educational qualification he has produced
Ex.P.32 to P36. It is stated that the claimant was pursuing
BSW (Bachelor of Social Work) to substantiate the same he
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has produced Exs.P18 to P20. Claimant has also produced
Exs.P17 to P23 to show that he was an extraordinary
sportsman in football having participated in several events
and competitions of the college and university level and has
won accolades and several medals and trophies. These
documents are not seriously disputed but, however learned
counsel appearing for the insurer vehemently contends that
the claimant was only a sportsman in football though he
may have secured medals and trophies, he has not
produced any material/cogent evidence to show his income.
Therefore, he contends that the tribunal was right in
assessing notional income of Rs.4,500/- p.m, which does
not call for interference.
(e) Admittedly, the claimant is a double graduate in
B.A and BSW. Though it is claimed that he was working as
home loan recovery officer at Hubballi, nothing material has
been placed before the Court with regard to proof of
income. As per the documents produced by claimant it is
apparently evident that he was an extraordinary sportsman
in the game of football and had received several medals
and trophies in appreciation of skill in football. The claimant
was hardly aged 22 years and his bright future of excelling
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in the game of football has been diminished due to the rash
and negligent act of the driver of the truck. The claimant is
now rendered helpless due to amputation of his right leg
below the knee. His dream of playing football, which was
his passion has come to an end due to the accident caused
by driver of truck.
(f). While assessing income of claimant, his age and
avocation requires to be taken for consideration. The
traditional mindset of sports not being a good avocation to
secure handsome income will have to be ruled out
considering the present state of affairs across the world so
also in our country. In the age of premier leagues of
cricket, football, hockey, kabaddi and other sports this
Court will have to keep in mind growth and advancement of
sports and the enormous huge income i.e., drawn and paid
to the excelling extraordinary sportsman. Undoubtedly, in
the present case on hand claimant based on his credentials
appears to be an extraordinary sportsman in football but,
due to the accident and amputation of his right leg below
the knee he would never be able to play football or dream
earning extraordinary huge income, which would be paid or
drawn by similar sportsman.
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(g). The claimant cannot be considered to be a mere
coolie or an unskilled worker to be awarded a notional
income on the basis of chart provided by the Legal Services
Authority. Though, there may not be proof of his income
but, the fact remain that he has produced several
documents and records from Exs.P17 to P37, which would
show his skill, caliber, capacity and capability to reach
greater heights. I am in agreement with the learned
counsel for the claimant that a sum of Rs.12,000/- would
be reasonable amount to be taken as income for
assessment of compensation. Accordingly, Rs.12,000/- is
taken as income as against Rs.4,500/- assessed by the
tribunal.
(h) The claimant was aged 22 years as on the date of
occurrence of accident and the multiplier to be adopted in
this case is '18' as per the judgment of the Hon'ble 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 has been
rightly adopted by the tribunal. Hence, the same does not
call for interference. The claimant has also examined the
Doctor as PW.2 who has clearly stated on oath that the
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claimant has incurred physical disability at 65% to the right
lower limb as per Ex.P14. Ex.P.15 issued by Karnataka
Institute of Medical Science shows that the claimant has
suffered a permanent physical disability at 75%. However,
the author of the said document is not been examined. The
tribunal has assessed the disability to be 30% to the whole
body.
(i) It is the contention of learned counsel for the
claimant that 100% disability would have to be taken as
claimant cannot play football as he used to play prior to the
occurrence of accident. I am afraid the said contention
cannot be accepted as this is a legislation under the Motor
Vehicles Act and not under the Employees Compensation
Act. However, this Court will have to keep in mind that the
exclusivity and extraordinary skill of the claimant to achieve
greater heights and earn more income was on the basis of
his skill in football, which has been diminished due to the
amputation of his right leg below the knee. Therefore, in
the present case on hand, considering the documents
produced and keeping in mind the growth of sports in
present age and in future. I am of the considered view that
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the disability is to be assessed at 50% as against 30%
adopted by the tribunal.
Therefore, the claimant would be entitled for the loss
of income due to the disability of Rs.12,96,000/-
(Rs.12,000/- x 12 x 18 x 50%) as against Rs.2,92,000/-
awarded by the tribunal.
(j) Towards pain and suffering, the tribunal has
awarded Rs.80,000/-. Learned counsel for the claimant has
relied on the judgment of this Court in the case of
Sri. Rasool S/o Imamsab Dindilakoppa Vs The
Divisional Controller, N.W.K.R.T.C., Belagavi Division,
Belagavi in M.F.A.No.102469/2017 C/w
M.F.A.No.102845/2017, dated 02.09.2021, wherein
amount towards pain and agony is awarded at
Rs.2,50,000/-. Hence, being bound by the said judgment of
this Court in similar facts and circumstance of the case
where there was amputation below the knee, I am of the
opinion the claimant would be entitled to Rs.2,50,000/-
under this head as against Rs.80,000/- awarded by the
tribunal.
(k) Towards medical expenses, tribunal has
awarded Rs.1,95,000/-, I do not find any reason to
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interfere with the same as actual bill amount towards
medical expenses has been awarded. Hence, the same is
retained.
(l) Towards nursing, nourishment, conveyance and
attendant charges, the tribunal has awarded Rs.20,000/-
which is rightly awarded by the tribunal as the claimant was
inpatient for 20 days. The same is retained.
(m) Towards loss of income during laid up period,
the tribunal has awarded Rs.20,000/-. In view of this Court
enhancing the income of claimant to Rs.12,000/- p.m, at
least 5 months period would be required for claimant to get
back to work. Therefore, Rs.12,000/- x 5 would be
Rs.60,000/- as against Rs.20,000/-.
(n) Towards loss of marriage prospects, the tribunal
has awarded Rs.25,000/-, which in the opinion of this Court
is on the lower side. The same requires to be enhanced.
Accordingly, it is enhanced to Rs.1,00,000/-, as against
Rs.25,000/-.
(o) Towards expectation of life, the tribunal has
awarded Rs.25,000/-. I do not find any reason to interfere
with the same. Hence, it is retained.
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(p) Towards amenities of life happy and frustration,
the tribunal has awarded Rs.80,000/-. I am of the opinion
the same requires to be enhanced. Accordingly, it is
enhanced to Rs.1,00,000/- as against Rs.80,000/-.
(q) The tribunal has not awarded any amount towards
future medical expenses. As the claimant cannot walk
without the help and support of crutches/artificial leg, it is
necessary to award compensation for purchase of crutches/
artificial leg. Accordingly, Rs.50,000/- is awarded under this
head.
9. In view of the above discussions, claimant
would be entitled for enhancement of compensation as
mentioned in the table below:
Head As awarded by the As awarded by
tribunal this Court
(Rs.) (Rs.)
Loss of income 2,92,000-00 12,96,000-00
due to disability.
Injury pain and 80,000-00 2,50,000-00
agony including
the amputation of
right leg.
Medical expenses. 1,95,000-00 1,95,000-00
Nursing, attendant 20,000-00 20,000-00
charges, extra
nourishment and
conveyance
Loss of income 20,000-00 60,000-00
during laid up
period
Loss of marriage 25,000-00 1,00,000-00
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prospects
Loss of 25,000-00 25,000-00
expectation of life
Loss of amenities 80,000-00 1,00,000-00
of life, happiness
and frustration.
Future medical Nil 50,000-00
expenses/crutches
TOTAL 7,37,000/- 20,96,000-00
For the foregoing reasons, I pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and award passed by
PresidingOfficer, Fast Tract Court-III and Additional
Motor Accident Claims Tribunal, Belagavi in
MVC.No.2450/2009 dated 22.06.2011, is modified;
iii) The claimant is entitled for total compensation of
Rs.20,96,000/- as against Rs.7,37,000/- awarded
by the tribunal;
iv) The claimant shall be entitled for interest @ 6% on
the enhanced compensation which shall be paid
before the concerned tribunal within a period of six
weeks from the date of receipt of a certified copy
of this judgment;
v) All other terms and condition stipulated by the
tribunal shall stand intact and the same is not
disturbed.
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vi) Registry to transmit the records to the concerned
tribunal forthwith.
SD/-
JUDGE
AM/-.
