Shankuntala W/O Vasudev Jadhav vs Suresh And Ors
2022 Latest Caselaw 8445 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 9TH DAY OF JUNE 2022

                           BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                 MFA No.201259/2019 (MV)

BETWEEN:

Shakuntala W/o Vasudev Jadhav,
Age: 46 Years, Occ: Private Teacher,
R/o Bharatagi, L.T.No.5,
Dist: Vijayapura-586 101.
                                                 ... Appellant

(By Sri. Koujalagi Chandrakanth Laxman, Advocate)

AND:

1.     Suresh S/o Siddappa Biradar,
       Age: 46 Years, Occ: Business,
       R/o Bharatagi,
       Dist: Vijayapura-586 101.

2.     The Divisional Manager,
       Oriental Insurance Company Ltd.,
       Bidari Complex, 1st Floor,
       S.S. Front Road,
       Dist: Vijayapura-586 101.

3.     Manjunath S/o Gopal Karade,
       Age: 38 Years, Occ: Driver,
       R/o Sevalal Nagar,
       Dist: Vijayapura-586 101.
                                              ... Respondents
(Sri. Uday P. Honguntikar, Advocate for R2;
V/O Dtd. 21.08.2019 notice to R1 & R3 is dispensed with)
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      This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, praying to modify the judgment
and award dated 06.03.2019 passed in MVC No.1851/2013 on
the file of the Court of III Additional District Judge and
Member of Motor Accident Claims Tribunal No.IV, Vijayapura
and allow the appeal to grant the compensation amount by
Rs.10,80,000/- only as claimed by the appellant before this
Court.


      This appeal coming on for hearing on I.A., this day, the
Court delivered the following:-


                              JUDGMENT

This appeal is filed under Section 173(1) of the Motor

Vehicles Act, challenging the judgment and award dated

06.03.2019 passed in MVC No.1851/2013 by the Motor

Accident Claims Tribunal, 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 is that,

on 25.03.2013 at 9.30 a.m. near Ram Mandir on Lingadagudi

road, Bijapur, the claimant was travelling in an Auto bearing

No.KA-28/A-0566 from her native place to Bijapur. At that

time, another Auto bearing No.KA-28/A-3315 came from

Union Bank side and both the autos dashed against each other

resulting in the accident, due to which the claimant suffered

fracture of right femur, left shoulder and clavicle etc., and

immediately she was shifted to Kundaragi Hospital, Bijapur

and thereafter to Dr. G.S. Kulkarni Orthopedic Hospital, Miraj.

She has spent more than Rs.1,00,000/- towards medical

expenses and she needs Rs.50,000/- for follow up treatment

and removal of implants. She was working as a Private

Teacher and was earning Rs.3,300/- per month and due to

accidental injuries, she is permanently disabled. Respondent

Nos.1 and 2 being the owner and insurer of the auto in which

the claimant was travelling are liable to pay the compensation.

Hence, the claimant has filed a claim petition under Section

163(A) of the M.V. Act, under no fault liability.

4. Respondent Nos.2 and 3 have contested the

matter, while respondent No.1 did not contest the matter.

Respondent No.2 admitted that the offending vehicle was

insured with respondent No.2, but denied the other grounds

and further asserted that there is breach of policy conditions.

Hence, they would seek for dismissal of the claim petition.

5. The Tribunal, after assessing the oral and

documentary evidence has granted compensation of

Rs.20,000/- with interest at the rate of 6% p.a. from the date

of petition till realistion.

6. Being aggrieved by this judgment and award, the

claimant has filed this appeal, seeking enhancement of

compensation.

7. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for

respondent No.2-insurer. Perused the records.

8. The learned counsel for the appellant would

contend that the Tribunal has awarded medical expenses only

to the tune of Rs.15,000/-, though the claimant has produced

documents to show that she has spent more than

Rs.1,28,351/- towards medical expenses and hence, the

Tribunal has erred in awarding lesser compensation under the

said head. He would also contend that no compensation was

awarded under the head of loss of future earning and disability

was also not taken into consideration. Hence, he would seek

for enhancing the compensation.

9. Per contra, learned counsel for respondent No.2-

insurer would support the judgment and award of the Tribunal

contending that the Tribunal has assessed the oral and

documentary evidence and passed a reasoned judgment by

awarding just compensation. Hence, he would seek for

dismissal of the appeal.

10. Having heard the arguments advanced by the

learned counsels for the parties and perusing the records, it is

evident that the claim petition is filed under Section 163(A) of

the M.V. Act. Hence, the negligence is not a criteria for

maintaining the petition and only use of the vehicle is required

to be considered. It is evident that the claimant was traveling

in the offending vehicle and she suffered injuries due to use of

the vehicle.

11. The claimant got examined Dr. A.R. Nayak of

Bijapur as PW.2, who states that the claimant has suffered

about 40-45% permanent disability to right lower limb.

However, the Tribunal has assessed the evidence and in his

cross-examination, PW.2 has admitted that he has never

treated the claimant. Further, admittedly the claimant was

initially treated in Kundaragi Hospital, Bijapur and later on she

was treated in Dr. G.S. Kulkarni Orthopedic Hospital, Miraj.

The Tribunal by its reasoned judgment has considered that

there was no impediment for the claimant to examine a

treated doctor from Kundaragi Hospital, Bijapur itself, but that

was not done and hence, the Tribunal has rejected the

evidence of PW.2. No illegality is found and no explanation is

offered as to why a treated doctor who is staying in the same

city is not examined. He could have been at least examined on

commission to ascertain the disability, but that was not done.

Apart from that, the claimant claims to be a private teacher

and there is no evidence to show that because of the accident

she lost her job or she was compelled to resign her job.

Hence, even on this point, there is no material evidence to

show that there is any loss in the future income of the

claimant. Under such circumstances, the Tribunal is justified

in not considering the disability.

12. The Tribunal as per Schedule-II to the Motor

Vehicles Act has awarded a global compensation of Rs.5,000/-

in respect of grievous injury under the head of pain and

suffering in the absence of any material evidence regarding

disability, which is in accordance with the statute and does not

call for any interference.

13. Further, the Tribunal has awarded Rs.15,000/-

under the head of medical expenses. Since the petition is filed

under Section 163(A) of the Act, the maximum medical

expenses could be awarded is Rs.15,000/- and accordingly the

Tribunal was justified in awarding Rs.15,000/-.

14. Under these circumstances, the appellant/claimant

has failed to make out any case for enhancement of the

compensation and as such, the appeal needs to be dismissed.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

LG