Rudrappa S/O Mallappa Kandagal vs The Divisional Controller
2022 Latest Caselaw 8828 Kant

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            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

          DATED THIS THE 15TH DAY OF JUNE 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
                MFA No.201535/2016 (MV)

BETWEEN:

RUDRAPPA S/O MALLAPPA KANDAGAL,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: DEVAR HIPPARAGI,
TQ: SINDAGI, DIST: VIJAYPUR-586101.
                                           ... APPELLANT

(BY SRI. BABU H.METAGUDDA, ADVOCATE)

AND:

THE DIVISIONAL CONTROLLER,
DIVISIONAL OFFICE, NORTH EAST,
KARNATAKA STATE ROAD TRANSPORT
CORPORATION, GULBARGA-586101.
                                         ... RESPONDENT
(BY SRI. SANTOSH BIRADAR, ADVOCATE)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO
CALL FOR RECORDS AND         ALLOW THIS APPEAL BY
MODIFYING THE JUDGMENT AND AWARD DATED 30.12.2015
PASSED IN MVC NO.1201/2013 BY THE IV ADDL. DISTRICT &
SESSIONS JUDGE AT VIJAYAPUR.      AND ENHANCING THE
COMPENSATION FROM RS.80,000/- WITH 9% INTEREST TO
RS.14,00,000/- WITH 12% INTEREST AND ETC.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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                          JUDGMENT

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

Vehicles Act, 1988 challenging the judgment and award dated

30.12.2015 passed by the IV Additional District and Sessions

Judge, Vijayapura ('Tribunal' for short) in MVC No. 1201/2013

seeking enhancement of compensation awarded by the

Tribunal.

2. For the sake of convenience, the parties herein

are referred as per the ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are

that, 26.07.2013 at about 9.00 p.m., on Bijapur-Sindagi

Road near Laxmi Temple of Shivanagi Village, the petitioner

was proceeding in a car bearing No.KA.29/M.5036. At that

time, a KSRTC bus bearing Registration No.KA.32/F.1377

driven by its driver in rash and negligent manner and dashed

against the car resulting in the accident. The petitioner and

other inmates of the said car sustained injuries and

immediately, the petitioner was shifted to Dhanvantari

Hospital at Bijapur for treatment as indoor patient and later

on shifted to Dr. A.R. Nayak Hospital at Bijapur. It is claimed

that the accident in question has occurred because of

actionable negligence on the part of the driver of the offending

KSRTC bus and because of accidental injuries, the claimant

has suffered permanent disability and as such he is unable to

perform his work as before. Hence, he filed a claim petition

seeking compensation of Rs.14.00 Lakhs from the

respondents.

4. The respondent-KSRTC ('Corporation' for short)

appeared before the Tribunal and contended that there is

collision between two vehicles and the owner and the insurer

of the car are necessary parties. It is further alleged that the

accident is because of actionable negligence on the part of the

driver of the car and further it denied the age, occupation and

income of the deceased as on the date of accident and sought

for dismissal of the claim petition.

5. The Tribunal after appreciating the oral as well as

documentary evidence, has awarded a total compensation of

Rs.80,000/- to the claimant/petitioner along with interest at

9% pa., from the date of petition till the date of realisation.

Being aggrieved by this judgment and award, the claimant has

filed this appeal seeking enhancement .

6. Heard the arguments advanced by the learned

counsel for the appellant and the respondent-Insurer.

Perused the records.

7. Learned counsel for the appellant would contend

that, though the evidence discloses that the claimant has

suffered disability and the Doctor has deposed to this effect,

the same was not taken into consideration and no amount was

awarded by the Tribunal under the head of Loss of Future

earning. He would also contend that the compensation

awarded under other heads is also on lower side and as such,

he would seek for enhancement of compensation.

8. Per contra, the learned counsel appearing for the

respondent-Corporation would support the judgment and

award passed by the Tribunal and prayed for dismissal of this

appeal.

9. Having heard the arguments advanced by the

learned counsels appearing on both sides and perusing the

records, it is evident that the Tribunal has given a finding to

the effect that the accident has occurred because of actionable

negligence on the part of the driver of the offending KSRTC

bus. This finding is not at all challenged. The Tribunal has

also fastened the liability on the respondent-Corporation and

the liability is not challenged by the respondent-Corporation.

Now, the only issue is regarding enhancement of

compensation.

10. The claimant was admittedly travelling in the car

bearing No.KA.29/M.5036, when it met with accident. The

Medical Officer deposed regarding the disability to the extent

of 18% to 20%. But, the Tribunal has rightly held that, he is

not the Doctor, who treated the Claimant after the accident.

However, it is evident that the claimant has suffered fracture

of C7 Vertebra and T-1 vertebra and though the medical

officer deposes regarding spondolytic changes, there is no

material evidence on this point by the Doctor, who treated

the claimant. However, records disclose that the claimant was

admitted in the hospital for considerable period of more than

one week and he has spent sufficient amount towards his

treatment. Considering the fracture of vertebra and also the

evidence of the medical officer, the Tribunal is not justified in

ignoring the disability in totality and at least some percentage

of disability should have been considered. Therefore,

considering the evidence of medical officer (PW.4) and also

considering the nature of injuries, in my considered opinion,

the total disability to the whole body can be taken at 6%.

11. The accident has occurred in the year 2013. The

claimant though assert that he suffered loss of income, there

is no material evidence regarding proof of his income.

However, this Court is consistently taking the notional income

of Rs.7,000/- p.m., pertaining to the accidents which took

place in the year 2013. The claimant is aged 60 years.

Hence, the multiplier '9' is applicable. Hence, under such

circumstances, the loss of income would work-out to

Rs.45,360/- (Rs.7,000/-x12x9x6/100). Hence, the claimant is

entitled for compensation of Rs.45,360/- Under the head of

Loss of future income.

12. The Tribunal has awarded compensation of

Rs.25,000/- under the head of Pain and Suffering. It appears

to be on lower side and considering the nature of fractural

injuries, the claimant is entitled for Rs.30,000/- under this

head.

13. The Tribunal has not awarded any compensation

under the head of Loss of Amenities and as such, the

claimant is entitled for Rs.30,000/- under this head.

14. The Tribunal has awarded compensation of

Rs.6,300/- under the head of Loss of Income during laid-up

period for one month, which appears to be on lower side.

Looking to nature of injuries, the claimant ought to have been

prevented from attending his work for at least two months.

Hence, the claimant is entitled for Rs.14,000/- under the

head of Loss of Income During Laid-up Period.

15. Further, under the head of diet, conveyance and

attendant charges, the claimant is entitled for Rs.6,000/- as

against Rs.3,000/- awarded by the Tribunal.

16. In the above facts and circumstances, the claimant

is entitled for a total complainant of Rs.1,25,360/- as

against Rs.80,000/- awarded by the Tribunal, under the

following heads:-

       Sl.      Particulars                      Amount (RS.)
       No.
        1       Loss of future income              45 360/-
        2        Pain & suffering                  30,000/-
        3       Loss of amenities                  30,000/-
        4       Loss of income during laid-        14,000/-
                up period

            5    Diet, Conveyance and              6,000/-
                Attendant Charges
                 Total                           1,25,360/-
                Award of Tribunal                - 80,000/-
                Enhanced compensation              45,360/-

17. Considering these facts and circumstances, the

appeal needs to be allowed-in-part. Accordingly, I proceed to

pass the following:

ORDER

i. The appeal is allowed-in-part.

ii. The judgment and award dated 30.12.2015 passed by the Tribunal viz., IV Additional District and Sessions Judge, Vijayapura in MVC No.1201/2013, is modified.

iii. The appellant/claimant is held entitled for total compensation of Rs.1,25,360/- as against Rs.80,000/- awarded by the Tribunal.

iv. The enhanced compensation of Rs.45,360/-

(Rs.1,25,360 - Rs.80,000) shall carry interest at the rate of 6% p.a. from the date of petition till its realisation.

v. Respondent No.2-Insurer is directed to deposit the enhanced compensation with interest accrued thereon within six weeks from the date of this judgment.

vi. The entire enhanced compensation amount shall be released in favour of the appellant/claimant.

Sd/-

JUDGE

KGR*