Shankar S/O Krishna Naik vs Arunkumar S/O Krishna Shetty
2022 Latest Caselaw 8947 Kant

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                                                       MFA No. 20677 of 2010


                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 16TH DAY OF JUNE, 2022

                                              BEFORE

                             THE HON'BLE MR JUSTICE KRISHNA S.DIXIT

                                   M.F.A. NO.20677 OF 2010 (MV)

                      BETWEEN:

                      SHANKAR
                      S/O KRISHNA NAIK
                      AGE: 35 YEARS, OCC: AGRIL
                      R/O GULADKERI, POST MANKI,
                      TQ HONNAVAR
                      DIST UTTRA KANNADA
                                                                  ...APPELLANT
                      (BY SRI. VISHWANATH K BHAT, ADVOCATE)


                      AND:


                      1.   ARUNKUMAR SHETTY,
                           S/O KRISHNA SHETTY,
                           AGE: 34 YEARS, OCC DRIVER,
         Digitally
                           RAJARAJESHWARI SERVICE STATION,
         signed by
         VISHAL            AT & POST GANGENATH,
         NINGAPPA
VISHAL   PATTIHAL
NINGAPPA Location:         BANLERY ROAD, BANGALORE -32
PATTIHAL DHARWAD
         Date:
         2022.06.22
         10:04:44
         +0530        2.   B V PRAKASH, S/O VEERANNA
                           AGE MAJOR,
                           NO.4, 4TH CROSS,
                           ERAPPA LAYOUT
                           SUBRAMANNYA PALAYA
                           BANASAVADI
                           BANGALORE-43
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                                     MFA No. 20677 of 2010


3.   THE DIVISIONAL MANAGER
     THE ORIENTAL INSURANCE CO.LTD
     ENKAY COMPLEX
     KESHWAPUR
     HUBLI

4.   SATISH
     S/O PERNU MOOLYA
     AGE MAJOR
     OCC DRIVER
     SABARABALLA PANAKAJA POST
     TQ BELTHANGADI
     DIST MANGALORE

5.   MURALI B NAIK
     S/O NARAYANA NAIK
     OWNER OF BUS NO KA-47/153
     R/O BELKE, BHATKAL

6.   THE DIVISIONAL MANAGER
     UNITED INDIA INSURANCE CO.LTD
     DIVISIONAL OFFICE, KARWAR,
     DIST: UTTARA KANNADA
                                           ...RESPONDENTS
(BY SRI. S.K.KAYAKAMATH, ADVOCATE FOR R3)
(NOTICE TO R1 & R4-R6 DISPENSED)
(R2 - SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT6, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 19.08.2009 PASSED IN MVC NO.142/2007 ON
THE FILE OF THE MEMBER, MACT, HONNAVAR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKIGN ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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                                       MFA No. 20677 of 2010


                           JUDGMENT

This appeal by the owner of the building, which has

suffered loss because of the vehicular accident, seeks to

lay a challenge to the Judgment & Award dated 19.08.2009

rendered by the Additional MACT at Honnavar, whereby

appellant's claim in M.V.C. No.142/2007 having been

favoured, a compensation of Rs.65,000/- with interest at

the rate of 6% p.a. has been awarded. The claimant

grieves before the Court that the Award is militantly on the

lower side.

2. After service of notice, the answering

respondent having entered appearance through it's Panel

Counsel opposes the appeal making submissions in

justification of the impugned Judgment & Award and the

reasons on which it has been constructed. The Panel

Counsel contends that the MACT having the advantage of

accumulated wisdom in matters like this, has made the

Award and therefore, the Appellate Court should be slow in

MFA No. 20677 of 2010

granting indulgence. So contending, he seeks dismissal of

the appeal.

3. BRIEF FACTS:

(a) The accident involved two offending vehicles namely a

KSRTC Bus bearing Registration No.KA-47/153 and the

tanker lorry bearing Registration No.KA-16/7809. It

happened on 18.05.2007 at about 4.15 a.m., when

Sun was yet to rise; people in slumber were yet to

wake up. Because of the accident, the shopping mall

belonging to the claimant was extensively damaged

and that he incurred a huge expenses for its

restoration, in costly days like this.

(b) The claim petition filed by the appellant was stoutly

resisted by the respondents viz., both the owners of

offending vehicles by lodging independent Written

Statements. To prove the claim, the claimant got

himself examined as P.W.1; he also examined an

expert witness i.e., Approved Engineer, Mr. Ganesh

Hegde as P.W.2. In their deposition, 27 documents

MFA No. 20677 of 2010

came to be marked as per Exs.P.1 to P.27. From the

side of respondents, though none was examined, two

documents came to be marked viz., the Insurance

Policies of the offending vehicles as per Exs.R.1 & R.2.

(c) The MACT having adverted to the pleadings of the

parties and having weighed the evidentiary material

borne out by the record, has entered the Judgment &

Award that are put in challenge by the claimant on the

ground that what has been awarded is frugal and

therefore enhancement thereof is eminently warranted.

4. Having heard the learned counsel for the parties

and having perused the original records in the light of

appeal papers, this Court is inclined to grant indulgence in

the matter as under and for the following reasons:

(a) There is no much dispute about the vehicular accident

with the involvement of two offending vehicles

belonging to the respondents on the eventful day;

there is also not much dispute about the damage

caused to the building in question and the material

MFA No. 20677 of 2010

stored therein; however, learned Panel Counsel

appearing for the contesting respondent vehemently

contends that what has been awarded by the MACT, in

its accumulated wisdom, cannot be faltered; it is

difficult to sustain the said submission. The damage

caused to the building in question and to the material

stored therein, is apparent from the Report of the

expert witness viz., P.W.2; his credentials have not

been impeached in the cross-examination; nothing

worth mentioning is elicited to discredit the version of

the expert witness and the Valuation Report at Ex.P.5.

(b) This Court cannot turn Nelson's Eye to the continuously

rising prices of the construction material and labour

charges. There is a great difficulty involved in restoring

the damaged building and replacing the valuables

especially when the damage is marked by enormity;

the depreciation of the building under the extant

Income Tax Rules vide New Appendix-I is mentioned at

the rate of 5%. No plausible reasons are assigned by

MFA No. 20677 of 2010

the MACT for discrediting the expert evidence coupled

with the Valuation Report marked in his deposition at

Ex.P.5. The compensation awarded is grossly

inadequate.

In the above circumstances, this appeal succeeds; the

impugned Judgment & Award having been modified, the

compensation awarded by the MACT in a sum of

Rs.65,000/- is enhanced to Rs.2,09,982/- (Two Lakh Nine

Thousand Nine Hundred & Eighty Two) only, all other terms

and conditions thereto having been left intact.

The respondent-Oriental Insurance Company Limited

is directed to make payment of the differential amount

within eight weeks, failing which the rate of interest shall

stand enhanced from 6% to 12% with retrospective effect.

No costs.

Sd/-

JUDGE KMS