Kariya vs M G Mahesh
2022 Latest Caselaw 8245 Kant

        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 07TH DAY OF JUNE, 2022

                          PRESENT

             THE HON'BLE MR. JUSTICE B. VEERAPPA

                               AND

           THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA

       MISCELLANEOUS FIRST APPEAL No.2369/2019 (MV-I)


BETWEEN:

KARIYA,
AGED ABOUT 41 YEARS,
S/O LATE SHANKARA HARIJANA,
R/O KODGI,
SIDDAPURA VILLAGE,
JANSALE POST,
KUNDAPURA TALUK,
UDUPI DISTRICT.
                                                   ...APPELLANT

(BY MISS NAZEEFA M. MULLA, ADVOCATE FOR
    SRI PAVANA CHANDRA SHETTY H., ADVOCATE)

AND:

1.     M.G. MAHESH,
       AGED ABOUIT 38 YEARS,
       S/O GIRI GOWDA,
       R/AT MUDDANAHALLI,
       DANDIGANAHALLI POST,
       CHANNARAYAPATNA,
       HASSAN DISTRICT.
                                 -2-


2.   RELIANCE GENERAL INSURANCE CO.LTD.,
     RGICI, 4TH FLOOR,
     LIGHT HOUSE,
     HILL ROAD,
     HAMPANAKATTA,
     MANGALORE - 575 001.
     REP. BY ITS MANAGER.
                                                      ...RESPONDENTS

(BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE FOR R2)

                            ****
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED 30.06.2018, PASSED IN MVC NO.1200/2016, ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL
MACT, KUNDAPURA, ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING     ENHANCEMENT     OF
COMPENSATION.


     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, B.VEERAPPA J., DELIVERED THE
FOLLOWING:

                            JUDGMENT

The present Miscellaneous First Appeal is filed by the claimant

for enhancement of compensation against the impugned judgment

and award dated 30.06.2018, made in MVC.No.1200/2016 on the

file of the Senior Civil Judge and Additional Motor Vehicle Accident

Claims Tribunal, Kundapura (hereinafter referred to as "the

Tribunal" for short), awarding the total compensation of

Rs.4,83,625/- with interest @ 6% p.a. from the date of petition till

the date of realization.

2. It is the case of the injured claimant that on

14.06.2014, when he was riding the motor cycle bearing

registration No.KA-15-A-907 from Shankaranarayana side towards

Siddapura side, at about 4.15 p.m, when he reached near Karebailu

of Siddapura Village of Kundapura Taluk, a car bearing registration

No.KA-13-A-7951 came from the opposite direction with a rash and

negligent manner dashed against the vehicle of the claimant. As a

result, he fell down and sustained grievous injuries and the accident

occurred due to rash and negligent driving of the driver of the car

and the jurisdictional police registered a case against the driver of

the car in Crime No.96/2014. Immediately after the accident, he

was shifted to Vivek Hospital, Kundapura, wherein he took

treatment as inpatient and still is under treatment and he spent a

sum of Rs.2,00,000/- towards medical expenses, Rs.25,000/-

towards food and nourishment and attendant charges, Rs.15,000/-

towards conveyance charges and Rs.50,000/- towards future

treatment. Therefore, he sought to allow the claim petition.

3. In response to the notice issued by the Tribunal,

respondent No.1 was placed ex-parte.

4. Respondent No.2-Insurance Company filed the written

statement denying the averments made in the claim petition and

contended that the driver of the car did not possess valid and

effective driving licence to drive the car and thereby violated the

terms and conditions of the policy. Therefore, he sought to dismiss

the claim petition.

5. Based on the aforesaid pleadings, the Tribunal framed

eight points for consideration.

6. In order to prove the case, the claimant examined

himself as P.W.1 and marked the documents Exs.P.1 to P.49. On

behalf of the respondents neither any witness were examined nor

documents were marked.

7. The Tribunal, considering both oral and documentary

evidence on record, recorded a finding that the claimant proved

that the unfortunate accident occurred on 14.06.2014 due to rash

and negligent driving of the driver of the Car bearing registration

No.KA-13/A-7951 and the claimant sustained grievous injuries. The

2nd respondent-Insurer failed to prove that the driver of the car was

not holding valid and effective driving licence as on the date of the

accident and further failed to prove that the first respondent has

not furnished the details of respondent No.2 as per the mandate of

Section 134(C) of the Motor Vehicles Act and that the respondent

No.2 further failed to prove that the police have not forwarded the

documents to respondent No.2 as per the mandate of Section

158(6) of the Motor Vehicles Act. Thereby, claimant is entitled for

compensation. Accordingly, the Tribunal proceeded to award

compensation of `4,83,625/- with interest at 6% per annum from

the date of the accident till realization. Being not satisfied with the

award of compensation, the present Appeal is filed by the claimant

for enhancement of compensation.

8. We have heard the learned counsel for the parties to

the lis.

9. Ms.Nazeefa M Mulla, learned counsel for Sri Pavana

Chandra Shetty, learned counsel for the appellant/claimant

contended with vehemence that, though the claimant has stated on

oath that he was earning `25,000/- per month, ignoring the same,

the Tribunal erred in taking the income at `8,000/- per month. She

further contended that the compensation awarded by the Tribunal

under other heads is on the lower side. The Tribunal has not

considered the medical evidence of the Doctor who stated that the

claimant has to suffer through out his life due to shortening of right

leg by 1.5cm. Therefore, the learned counsel contended that the

compensation awarded is on the lower side and sought for further

enhancement, by allowing the Appeal.

10. Per contra, H.N.Keshava Prashanth, learned counsel for

respondent No.2/Insurance Company, sought to justify the

impugned judgment and award passed by the Tribunal and

contended that, in the absence of any material documents produced

by the claimant to show that he was earning `25,000/- per month,

the Tribunal was justified in taking the income of the claimant at

`8,000/- per month. The Doctor has stated that the claimant has

suffered 10% disability to the right upper limb and 20% to the

right lower limb. Thus the Tribunal erred in taking 20% disability

and ought to have taken 1/3rd of 30% i.e., 10% disability.

Therefore, sought to dismiss the Appeal.

11. In view of the aforesaid rival contentions urged by the

learned counsel for the parties, the only point that arises for our

consideration is:

"Whether the claimant has made out a case for further enhancement of compensation, in the facts and circumstances of the present case?"

12. It is an undisputed fact that in the accident that

occurred on 14.06.2014, the claimant sustained grievous injuries as

spoken to by the doctor-P.W.2 and as can be seen from the wound

certificate-Ex.P.5. The fact that the accident occurred due to rash

and negligent driving of the car bearing registration No.KA-13/A-

7951 by its driver is is evident from the material documents i.e.,

the FIR-Ex.P.1 and charge sheet-Ex.P.7. The Insurer has not

challenged the FIR and charge sheet and no material is placed on

record to prove that there was no fault on the part of the driver of

the car. Thereby, rash and negligent driving on the part of the

driver of the car has been proved. It is the specific case of the

claimant that he was doing coolie work and was earning `25,000/-

per month. In the absence of any document to show the income,

the Tribunal ought to have taken the notional income fixed by the

Karnataka State Legal Services Authority. The same has not been

done. Since the accident is of the year 2014, the Tribunal has

erred in taking monthly income of the claimant at `8,000/- as

notional income. As per the guidelines of Karnataka State Legal

Services Authority, the notional income has to be taken at `8,500/-

per month. Though learned counsel for the insurance company

contended that disability at 20% taken by the Tribunal is on the

higher side, the fact remains that the Insurance Company has not

filed any appeal. Since the claimant was aged 38 years as on the

date of the accident, the applicable multiplier would be '14'. Taking

income of the claimant at `8,500/- per month, loss of future

prospects would come to `8,500/- x 12 x 14 x 20%=`2,85,600/-.

13. The Doctor who examined the claimant has issued the

disability certificate-Ex.P.47 and has stated that the claimant has

suffered the following injuries:

(i) Shortening of Right leg: 1.5cm (R:38.5, L-37 cm)

(ii) Posttraumatic stiffness of right ankle: Plantar flexion: 15/45: dorsiflesion: 15/45

(iii) Posttraumatic stiffness of right knee (0-100;R-0-

130)

(iv) Functional assessment: Walk:6/10; stairs:5/10;

squat:5/10 stand 6/10.

(v) C/o, pain in the Right shoulder and difficulty to lift the shoulder.

(vi) O/E shoulder movement is dissected in all direction 15.

14. The doctor has further opined that, because of the

above injuries, the claimant is unable to do his work normally and

unable to walk normally, sit normally, and accordingly, issued the

Disability Certificate, assessing the total disability to the right upper

limb as permanent and partial up to 10% and right lower limb 20%.

15. Considering the injuries sustained, age of the claimant

and the evidence of the Doctor, this Court is of the considered

opinion that the Tribunal is justified in taking disability at 20%. The

Tribunal has awarded `30,000/- towards pain and sufferings and

- 10 -

`30,000/- towards loss of amenities. The same requires to be

enhanced.

16. For the reasons stated above, the claimant has made

out a case for enhancement of compensation. Accordingly, the

point raised for consideration is answered partly in the affirmative.

17. After re-assessing both oral and documentary evidence

on record, this Court is of the considered opinion that the claimant

is entitled to just and proper compensation, as under:

     Loss of future prospects                        `2,85,600/-
     Pain and sufferings                               `60,000/-
     Hospital and medical expenses (as               `1,00,625/-
     awarded by the Tribunal)
     Loss    of   income   during    laid   up         `25,500/-
     period.
     Loss of amenities                               `1,00,000/-
     Food,        nourishment,      attendant          `35,000/-
     charges and transportation charges.
     Total                                           `6,06,725/-

18. Accordingly, claimant is entitled to total compensation

of `6,06,725/- as against `4,83,625/- awarded by the Tribunal.

- 11 -

19. In view of the above, we pass the following:

ORDER

(i) The Miscellaneous First Appeal is allowed in

part.

(ii) The impugned judgment and award dated

30.06.2018 passed in MVC No.1200/2016 on the

file of the Senior Civil Judge, Kundapura and

Member, Addl. MACT, Kundapura, is hereby

modified.

(iii) The claimant is entitled to total compensation of

`6,06,725/- as against `4,83,625/- awarded by

the Tribunal. Thus, the compensation awarded by

the Tribunal is enhanced by `1,23,100/-, with

interest at 6% per annum from the date of the

petition till realization.

(iv) The Insurance Company is directed to deposit the

enhanced compensation within a period of six

weeks from the date of receipt of copy of this

Order.

- 12 -

        (v)    The    entire    compensation      amount       shall   be

                disbursed      to     the    claimant,    on      proper

identification, in accordance with law.

(vi) Registry is directed to return the Trial Court

Records, forthwith.

Sd/-

JUDGE

Sd/-

JUDGE

Paragraphs No.1 to 4 - MBM 5 to end kcm