Shri. Sannabhimappa Yallappa ... vs Shri. Mallappa Mutteppa Baligar
2022 Latest Caselaw 8525 Kant

                              1




              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 10TH DAY OF JUNE, 2022

                           BEFORE

        THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

          MISC. FIRST APPEAL NO.101209/2021 ( MV-I)

BETWEEN

SHRI. SANNABHIMAPPA YALLAPPA NAIK
AGE: 45 YEARS, OCC: MESON & AGRICULTURE
(NOW NILL), R/O. NAGANOOR, TQ:MUDALGI,
DIST: BELAGAVI, NOW AT RAMATIRTH NAGAR,
BELAGAVI-590017.

                                              ....APPELLANT

(BY SRI S.R.KAMATE, ADVOCATE)


AND :

1.      SHRI. MALLAPPA MUTTEPPA BALIGAR
        AGE: 40 YEARS, OCC: AGRICULTURE,
        R/O. LAXMI NAGAR MUDALAGI,
        TQ: GOKAK, DIST: BELAGAVI 591312.
        (OWNER OF THE TRACTOR NO. KA-49 T 4072)

2.      SHRI. PUNDALIK MUTTEPPA BALIGAR
        AGE: 45 YEARS, OCC: AGRICULTURE,
        R/O. LAXMI NAGAR MUDALAGI,
        TQ: GOKAK, DIST: BELAGAVI 591312,
        OWNER OF TRAILER NO. KA49 T 7583
        AND KA 49 T 7584)

3.      THE DIVISIONAL MANAGER
        THE NATIONAL INSURANCE COMPANY LTD.,
        DIVISIONAL OFFICE AT RAMDEV GALLI,
        BELAGAVI-590001,
        (INSURER OF THE TRACTOR AND
        TRAILER NO.KA-49 T 4072,
        KA49 T 7583 AND KA 49 T 7584)
                              2




     POLICY NO OF TRACTOR-
     610201/31/14/6300005309
     VALID FROM 19-11-2014 TO 18-11-2015,
     AND TRAILER POLICY NO.
     610201/31/14/6700005104,
     VALID FROM 12-11-2014 TO 11-11-2015.


                                           ...RESPONDENTS

(BY SHRI RAJASHEKHAR S.ARANI, AND ;
    SHRI R.R.MANE, ADVOCATES FOR R3;
NOTICE TO RESPONDENT NOS.1 & 2-DISPENSED WITH)


     THIS M.F.A. IS FILED U/SEC.173(1) OF THE MV ACT,

AGAINST THE JUDGMENT AND AWARD DATED 26.02.2021

PASSED IN MVC NO.1183/2015 ON THE FILE OF THE VIII

ADDITIONAL DISTRICT AND SESSIONS JUDGE BELAGAVI,

PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION

AND SEEKING ENHANCEMENT OF COMPENSATION IN THE

INTEREST OF JUSTICE.


     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal is preferred by the claimant being

aggrieved by the Judgment and Award passed by the VIII

Addl. District and Sessions Judge, Belagavi (for short 'the

Tribunal') in MVC. No.1183/2015 dated 26.02.2021. 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. This matter is listed for admission with consent

of both the parties, matter is taken up for disposal.

4. Brief facts of the case are as under:

On 26.11.2014 when the claimant was proceeding

on his motorcycle from Naganoor village towards Tokratti

for his personal work in a slow and cautious manner.

When he reached near Mudalagi cross Sunadolli village

limits, Sunadolli-Bairnatti road, Tq: Gokak at about

7:20pm, the driver of the tractor trailer bearing No.KA-

49/T-4072 , KA-49/T-7583 and KA-49/T-7584 came from

Koujalgi side in a high speed in a rash and negligent

manner so as to endanger to human life and safety and

lost control over the offending vehicle and dashed against

the claimant causing the accident. Due to the accident,

claimant suffered serious injuries and he took treatment

as inpatient and spent more than Rs.2,50,000/- for his

treatment. Due to the accident, claimant suffered

permanent total physical disability and has lost his earning

capacity.

5. It is stated that the claimant was aged about

38 years as on the date of accident and was earning

Rs.10,000/- per month as a mason along with another

sum of Rs.1,50,000/- p.a. by doing agricultural work. In

view of the injuries sustained in the accident and financial

expenditure met by the treatment, the claimant filed claim

petition seeking compensation.

appeared before the Tribunal and filed their detailed

statement of objections respectively inter alia denying the

contents of the claim petition including occurrence of

accident, involvement of the offending vehicle, negligence

of the driver of the vehicle, age, avocation, involvement

and income of the claimant and sought for dismissal of the

claim petition.

7. It was also pleaded by the insurer that there

was violation of policy condition by the driver of the

offending vehicle and he did not have a valid and effective

driving license as on the date of occurrence of accident

and that accident occurred due to the rash and negligent

riding of the rider of the motorcycle.

8. On the basis of pleadings, the Tribunal has

framed relevant issues for consideration.

9. In order to substantiate the issues and to

establish the case, the claimant got examined himself as

P.W.1 and the Doctor as P.W.2 and got marked documents

as Exs.P1 to Ex.P.115, whereas respondent did not adduce

any evidence. However, got marked Exs.R.1 and Ex.R.2

with consent, which are the copies of the policies.

10. On the basis of material evidence both oral

and documentary and on hearing the submissions of

learned counsel appearing for both parties, the Tribunal

has awarded a total compensation of Rs.5,73,730/- with

interest at the rate of 6% p.a. and directed the 3rd

respondent-insurer to deposit above said amount in favour

of the claimant.

11. Being aggrieved by the meager compensation

amount awarded by the Tribunal, claimant is before this

Court seeking enhancement of compensation.

12. It is the vehement contention of learned

counsel for appellant-claimant that the Judgment and

Award passed by the Tribunal is erroneous and contrary to

the material evidence placed on record both oral and

documentary. Hence, the same requires to be modified

and enhanced. It is contended by learned counsel that the

Tribunal has grossly erred in assessing the income of the

claimant at Rs.5,500/-, whereas the claimant was earning

more than Rs.10,000/- per month. It was also contended

by learned counsel for the claimant that even under the

other heads the tribunal has awarded meager

compensation, which is not commensurate to the

principles laid down for awarding compensation under the

road traffic accident cases. On these grounds, he seeks to

allow the appeal and to enhance the compensation

awarded by the Tribunal.

13. Per contra, learned counsel Shri Rajashekhar

Arani for the respondent-Insurer vehemently opposes the

contentions put forth by the learned counsel for the

claimant. He further contends that the Judgment and

Award passed by the Tribunal is fair, just and reasonable

and the same does not call for interference, as all material

evidence both oral and documentary and the statement of

doctor has been taken into consideration while awarding

just and reasonable compensation to the claimant,

commensurate to the injuries sustained by the claimant in

the accident. Learned counsel further contends that the

tribunal in fact has awarded excess compensation on

many of the heads, but however he restricts his

arguments to the award of compensation granted by the

tribunal to be just and fair. On these grounds the learned

counsel for the respondent insurer seeks to dismiss the

appeal by affirming the orders passed by the tribunal.

14. Having heard the learned counsel for the

appellant/claimant and learned counsel for the

respondent/insurer, the points that arise for consideration

before this Court are:

i) Whether the tribunal has committed an error in awarding inadequate compensation which is meager ?

ii) Whether the tribunal has not considered the proper income for assessment of the compensation ?

iii) What order?

15. Having considered the vehement contentions

of both learned counsel, having perused the impugned

judgment and the exhibits produced therein, this Court is

of the opinion that the tribunal has committed an error in

awarding meager compensation. Hence, the same requires

marginal indulgence for enhancement of compensation for

the reasons stated herein below.

16. It is not in dispute that the accident occurred

on 26.11.2014, when the claimant was riding his

motorcycle and the offending vehicle namely tractor and

trailer came and dashed against the claimant. In order to

establish this aspect, the claimant has produced Exs.P.1 to

6 and Ex.P.115 being the police records. It is not in

dispute that the criminal case is registered against the

driver of the tractor and trailer-offending vehicle for the

offences punishable under Section 279, 338 of IPC. This

Court could not want to delve into the police records and

criminal case having been registered against the driver of

the offending vehicle as the occurrence of accident, filing

of charge sheet and registration of criminal case against

the driver of offending vehicle is not in dispute and the

same is not challenged by the driver of the offending

vehicle and neither is any contra material placed before

this Court to disprove the case of claimant with regard to

evidentiary value of the police records stated above.

Therefore, the occurrence of accident, involvement of the

offending vehicle, rashness and negligence it proved by

production of the police records stated above.

17. Now coming to the age, avocation and income

of the claimant, though the claimant has stated that he is

earning Rs.10,000/- per month, nothing material has been

placed before the Court to prove the said income. In view

of the same, the tribunal has assessed a notional income

of Rs.5,500/- per month. I am in agreement with the

learned counsel for the claimant that the said amount is

on the lower side, as in the absence of proof of income,

the tribunal and this Court will have to do guess work and

in doing so, a standard method would have to be adopted

for arriving at such guess work. Legal authority has

prescribed a chart of notional income for relevant year of

accident. The tribunal at least could have adopted the

method when there was no proof of income. A per the

notional income, chart of the legal services authority for

the accident year 2014, income is prescribed at Rs.7,500/-

per month. Accordingly, I deem it proper to assess the

income of claimant at Rs.7,500/- per month as against

Rs.5,500/- adopted by tribunal.

18. The claimant has got examined PW.2, who is

the treated doctor and who has adduced evidence and

stated on oath that the claimant has suffered following

fractures.

1) Comminuted Fracture lower 1/3 Rt Femur.

2) Comminuted Fracture upper 1/3 Rt tibia fibula.

3) Fracture of upper end Rt tibia in knee joint.

4) Fracture lower end Fibula, Tibia at Rt Ankle.

      5)     Neurovascular deficit in Rt foot.

      6)     Multiple abrasions and contusions Rt leg.

19. On the basis of clinical analysis of the same,

PW2, the doctor has opined disability to an extent of 95%

to the lower limb. Whereas, the tribunal has taken the

disability to the whole body at 25%. I am in disagreement

with the assessment made by the tribunal to the extent of

25% disability to the whole body. Even if 95% disability to

one lime is divided into 3 parts, the same will come to

31.6, rounded of to 32%. Accordingly, the disability

requires to be assessed at 32% as against 25% adopted

by the tribunal. The claimant being 41 years old at the

time of accident, the appropriate multiplier applicable

would be 14 as held by the 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. The same is not interfered.

In view of the above, loss of future earning capacity due

to the disability would be as follows;

Rs.7,500/- x 12 x 32% x 14 =Rs.4,03,200/-

as against Rs.2,31,000/- awarded by the

tribunal.

20. Towards pain and suffering, the tribunal has

awarded Rs.50,000/-. This Court is of the opinion that the

said amount is on the lower side, in view of the 4 fractures

having been suffered by the claimant. Accordingly, the

same is increased to Rs.80,000/-.

21. Towards food, transport and attendant

charges, the tribunal has awarded Rs.25,000/-. Where as

the claimant was inpatient for a period of one month.

Therefore, the claimant would be entitled to Rs.30,000/-

under the said head.

22. The tribunal has not awarded any amount

under the head of loss of income during the laid up period.

In view of the four fractures suffered by the claimant, it

would not be possible for the claimant to immediately get

back the work, even if he is discharged from the hospital.

So normally 3 months period is awarded, in view of one

month having been admitted in the hospital, it would be 4

months. Therefore, compensation towards loss of income

during laid up would be at Rs.7,000/- x 4= Rs.28,000/-.

23. Towards loss of amenities, the tribunal has

awarded Rs.40,000/-, which is enhanced by another

Rs.10,000/- making at Rs.50,000/-.

24. Towards medical expenses, the tribunal has

awarded Rs.97,730/- on the basis of actual bills produced

by the claimant. The same is retained in view of Exs.P.36

to 67.

25. Towards future medical expenses, the tribunal

has awarded Rs.30,000/-. The doctor had deposed stating

that Rs.80,000/- is required for removal of implants, which

is unreasonable. Therefore, Rs.40,000/- would be

reasonable amount to be awarded for removal of implants.

Accordingly, the same is awarded enhancing it to

Rs.40,000/-.

26. In view of the same, the claimant is entitled to

enhancement of compensation as per the table mentioned

hereunder.

Sl.No.                   Heads.                         Amount in
                                                          (Rs.)
1.         Loss of future earnings                        4,03,200
           (Rs.7,500/- x 12 x 14 x 32% =
           Rs.4,03,200/-)





2.
            Pain and sufferings                          80,000
3.          Food, transport and attendant                30,000
            charges including loss of income
4.          Loss of amenities in life.                   50,000
5.          Medical expenses                           1,97,730
6.          Future medical expenses                      40,000
7.          loss of income during the laid up            28,000
            period (Rs.7,000 x 4=28,000/-)

                                         Total:        8,28,930

                   Less: awarded by tribunal:          5,73,730

                     Enhanced compensation:            2,55,200

27. Accordingly, I pass the following:

ORDER

i) Appeal is partly allowed.

ii) The judgment and award dated 26.02.2021, passed

by the VIII Addl. District and Sessions Judge,

Belagavi, in MVC No.1183/2015 is modified.

iii) The claimant is entitled for a total enhancement

Rs.8,28,930/- as against Rs.5,73,730/- awarded by

the tribunal.

iv) All other terms and conditions stipulated by the

tribunal shall stands intact as it is not interfered.

v) The respondent-insurer shall pay the enhanced

compensation with interest at 6% p.a. from the date

of petition till the date of realization, within a period

of four weeks from the date of receipt of a copy of

this order, to be deposited before the jurisdictional

tribunal.

vi)    No order as to costs.




                                          Sd/-
                                         JUDGE

am/-