Karnataka High Court

Adiveppa S/O. Ishwarappa Patani vs The Managing Director on 17 June, 2022

Bench: Pradeep Singh Bypsyj

                              1




              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

           DATED THIS THE 17TH DAY OF JUNE, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

          MISC. FIRST APPEAL NO.101715/2015 (MV-I)

BETWEEN

SHRI ADIVEPPA S/O. ISHWARAPPA PATANI
AGE: 25 YEARS, OCC: DRIVER (NOW NIL)
R/O. SUTAGATTI, TQ: SAUNDATTI,
NOW R/AT: C/O. SHANKAR
CHANNAPPA PARAMANAIKAR,
R/O. BELAWADI, TQ: BAILHONGAL,
DIST: BELAGAVI.

                                              ....APPELLANT

(BY SRI UMESH C.AINAPUR, ADVOCATE)

AND :

1.      THE MANAGING DIRECTOR
        M/S. VRL LOGISTICS LTD,
        REGD & ADM OFFICE, P. B. ROAD
        VARUR-H HUBBALLI-581207.

2.      THE DIVISION MANAGER
        NEW INDIA ASSURANCE CO.LTD,
        MARKET-HUBBALLI -580029,
        SUMMONS TO BE SERVED ON
        THE DIVISIONAL MANAGER
        NEW INDIA ASSURANCE CO.LTD.,
        CLUB ROAD, BELAGAVI.

        (INSURER OF CANTER BEARING REG.
        NO.KA.25/A.9688)
        (POL.NO.67070031110200007522,
        VALID FROM 30.3.2012 TO 29.03.2012)
                           2




3.   MR. RYIYAZAHMED S/O. ABDULSATTAR MUJAWAR
     AT-POST HIREKODI, TQ: CHIKODI,
     DIST: BELAGAVI.

     (OWNER OF TRUCK BEARING REG.
     NO.KA-49/1899)

4.   SHRIRAM GENERAL INSURNACE CO. LTD,
     E-8 EPIT-RIICO INDUSTRIAL AREA,
     SITAPUR-JAIPUR, RAJASTHAN-302072.

     (INSURER OF TRUCK BEARING REG.
     NO.KA-49/1899)
     (POL.NO.10003/31/13/022548,
     VALID FROM 24.04.2012 TO 23.04.2013)


                                        ...RESPONDENTS

(BY SHRI S.V.YAJI, ADVOCATE FOR R2 ;
SHRI HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R1;
SHRI SURESH S.GUNDI., ADVOCATE FOR R4.
NOTICE TO RESPONDENT NO.3-SERVED)

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

VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD

DATED:27.12.2014, PASSED IN MVC NO.2558/2012 ON THE

FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL

MOTOR ACCIDENT CLAIMS TRIBUNAL, BAILHONGAL, PARTLY

ALLOWING THE CLAIM PETITION FOR COMPENSATION AND

SEEKING ENHANCMENT OF COMPENSATION IN THE INTEREST

OF JUSTICE AND EQUITY.


     THIS APPEAL COMING ON FOR FINAL HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This appeal is preferred by the claimant being

aggrieved by the Judgment and Award passed by the

Senior Civil Judge and Addl. M.A.C.T., Bailhongal

(hereinafter referred as 'the Tribunal' for short) in MVC.

No.2558/2012 dated 27.12.2014. 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. Brief facts of the case are as under:

The claimant is stated to be an employee under

respondent No.1 and that he was a driver by profession

driving the Canter bearing Reg.No.KA-25/A-9688. On

29.07.2012, while claimant was driving the above said

Canter vehicle along with the cleaner with loaded parcel

from Vijayapur to Kalaburagi and while the vehicle was

driven in a moderate speed following the road safety rules.

At that time, when vehicle was passing through Buranapur

cross on Sindagi-Vijayapur State Highway No.128 at about

7:30 p.m to 8:00 p.m, the claimant suddenly hit a truck

bearing Reg.No.KA-49/1899 as the driver of said truck

parked the vehicle in the middle of road without showing

any parking lights or warning signals with regard to

parking of said vehicle in the middle of road. It is stated

that the driver of said truck was negligent in parking his

vehicle in the middle of State highway without showing

any signal and without any lights being displayed in the

parked vehicle. Due to which, the claimant driving his

Canter vehicle loaded with parcel could not sight the

parked truck in the middle of road and due to the

negligence of the driver of truck, claimant dashed against

the parked truck on the highway.

4. As a result of accident, the claimant suffered

injuries and was admitted to Dr.Rahul B. Tanga D'Ortho,

D.N.B (Ortho) Tanga Multi Specialty Hospital and Trauma

Center, Vijayapur, wherein the doctor conducted operation

on the claimant for the injuries sustained to his abdomen.

It is stated that the claimant was inpatient for a period of

23 days and has spent more than Rs.1,50,000/- towards

treatment and incidental expenses. It is further stated that

prior to the date of occurrence of accident, the claimant

was hale and healthy and as he was working as driver, he

used to earn Rs.19,500/- p.m. He was unmarried. It is the

contention of claimant that the accident occurred due to

the rash and negligent manner of parking the truck by the

driver of the truck. Due to the occurrence of accident, the

criminal case came to be registered against the driver of

the offending truck in Crime No.181/2011 for the offences

punishable under Sections 279, 337 and 338 of Indian

Penal Code.

5. On service of notice, respondents appeared

before the Tribunal and filed their detailed statement of

objections. Ownership of the offending vehicles was

admitted by the respondents with regard to the goods

canter as well as goods truck and it was admitted with

regard to the claimant being the driver of the goods

canter. Respondents denied the accident having been

caused by their respective vehicles and pleaded that there

was no negligence by the respective vehicles and blame

the driver of goods canter vehicle, claimant herein for

having caused the accident and being negligent in causing

the accident. However, it was admitted that the

jurisdictional police have filed a charge sheet against the

driver of the truck, which had parked the vehicle in the

middle of road.

6. The insurance company appearing on behalf of

the respective vehicles pleaded that the injuries were

caused due to the rashness and negligence of the claimant

himself and that the liability, if any, would be subjected to

the limitation and exception to the insurance policy. In the

present case, since two vehicles were involved one goods

canter vehicle driven by the claimant and other goods

truck, which was parked in the middle of the road, due to

which the accident occurred. Both the vehicles have taken

the plea that they are not responsible for occurrence of

accident and the insurance company of both the vehicles

have taken a plea that their respective vehicles have

followed the necessary traffic rules and regulations and

that accident had occurred solely due to the negligence of

the driver himself and not due to the offending vehicle,

truck parked in the road. Inter alia the insurance company

also denied the age, avocation, income, possessing of

driving licence by the driver of the goods canter vehicle

namely the claimant herein. Accordingly, sought to dismiss

the appeal.

7. On the basis of pleadings, the Tribunal has

framed relevant issues for consideration.

8. 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.13.

9. 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.3,72,800/- with

interest at the rate of 9% p.a. By assigning 70%

contributory negligence on behalf of the driver of the

goods truck, which was parked in the middle of the road

and 30% contributory negligence on the part of the

claimant, who was driving the goods canter vehicle. The

tribunal held joint liability against respondents. However,

directed respondent Nos.2 and 4 being the insurer to pay

the said compensation amount as per the ratio of their

negligence.

10. Being aggrieved by the meager compensation

amount awarded by the Tribunal, claimant is before this

Court seeking enhancement of compensation.

11. It is the vehement contention of learned

counsel for appellant-claimant that the Judgment and

Award passed by the Tribunal is contrary to the material

facts both oral and documentary and evidence on record.

It is contended by learned counsel that the Tribunal has

grossly erred in awarding inadequate and meager

compensation on various grounds urged in the appeal

memo. More specifically on the ground that the amount of

income assessed by the tribunal is on the lower side. The

disability assessed is on the lower side and all other heads

of compensation, the tribunal has awarded meager

compensation which requires enhancement and hence,

seeks to allow the appeal and consequently, enhance the

compensation.

12. Per contra, learned counsel appearing for the

respondents vehemently contended that the judgment and

award passed by the tribunal is on the basis of sound

reasoning and does not call for interference as just and

reasonable compensation has been awarded by the

tribunal. It is further contended that in fact the

compensation awarded is on higher side. However, they

seek to dismiss of the appeal and affirm the judgment

passed by the tribunal.

13. Having heard the learned counsel for the

appellant/claimant and learned counsel for the

respondents/insurer, the points that arise for consideration

before this Court are:

i) Whether the claimant is entitled for enhancement of compensation ?

ii) What order?

14. It is not in dispute that the accident occurred

on 29.7.29012 while the claimant was driving his goods

canter vehicle and met with the accident having dashed

against the goods truck vehicle, which was parked in the

middle of the road, thereby causing the accident. The

occurrence of accident, the injuries sustained by the

claimant, the fact that the claimant was driver of goods

canter vehicle are all not in dispute. It is also seen from

the records Exs.P1 to P7 that the jurisdictional police has

registered a criminal case against the driver of the goods

truck, which was parked in the middles of the road. The

evidentiary value of Exs.P1 to P7 cannot be disputed and

so also the same is also not challenged. Hence,

genuinenity and veracity of the same cannot be doubted

by this Court.

15. This Court would not want to delve into the

occurrence of accident, injuries being sustained by the

claimant due to the accident, the involvement of both the

vehicles in the accident, registration of criminal case

against the driver of goods truck and so also parking of

the goods truck in the middle of the road. Therefore,

rashness and negligence on behalf of the driver of the

goods truck is established by way of the production of

police records at Exs.P1 to P7.

16. Without going into further deliberations,

coming to the aspect of age, avocation and income, the

tribunal has assessed the income of claimant at Rs.7,000/-

which is more than the chart value for the accidental year-

2012. Claimant being 23 years old at the time of accident,

the appropriate multiplier applicable would be 18 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, which

is not much questioned or quarreled by the learned

counsel appearing for the claimant. Hence, the same is

kept intact and not interfered.

17. The claimant got examined the doctor-PW.2,

who was assessed the permanent physical and functional

disability to the whole body to an extent of 15%, which

also is not seriously controvert or questioned by the

learned counsel appearing for the respondents. But

however, submitted that the same is on the higher side in

view of their being no fractures forthcoming in the wound

certificate. However, the respondents having not filed any

cross-objection or appeal, their say cannot be taken into

consideration for reduction of the said disability assessed

by the doctor and affirmed by the tribunal.

18. Based on the above income, age and

disability, the loss of future income due to permanent

physical and functional disability is calculated and

assessed at Rs.2,26,800/- by the tribunal, which is not

much disputed by the learned counsel for the claimant.

19. Towards medical expenses though the

claimant has stated that he had spent Rs.1,50,000/-, no

document has been produced to prove the same. The

lump-sum amount of Rs.30,000/- is awarded under this

head. I am in agreement with the learned counsel

appearing for the claimant that since the claimant was

admitted to the hospital for more than 23 days, it cannot

be possible that he would not have spent substantial

amount for his treatment. But however, the claimant has

failed to produce necessary bills and expenditures for the

treatment. As per Ex.P.12 it is only Rs.2,000/- which is

shown. Hence, the tribunal has awarded Rs.30,000/-

under this head. I am of the opinion that under this head

at least another Rs.20,000/- could be added towards the

medical expenses incurred by the claimant towards his

treatment and so also keeping in view the claimant was

admitted for 23 days in the hospital from 29.07.2012 to

19.08.2012. Hence, the compensation under this head is

enhanced to Rs.50,000/- as against Rs.30,000/- awarded

by the tribunal.

20. Towards pain and suffering, the tribunal has

awarded Rs.50,000/-. I do not find any legal error in the

compensation awarded by the tribunal. Hence, the same is

left intact and not disturbed.

21. Towards loss of amenities and future

unhappiness, the tribunal has awarded Rs.25,000/-. I

deem it appropriate to award Rs.30,000/- under this head

as against Rs.25,000/- awarded by the tribunal.

22. Towards incidental expenses, the tribunal has

awarded Rs.20,000/-. This required marginal

enhancement as the claimant was admitted to the hospital

for a period of 23 days. Rs.22,000/- requires to be

awarded under this head as against Rs.20,000/- awarded

by the tribunal.

23. Towards loss of income during laid up period,

the tribunal has awarded Rs.21,000/-. Admittedly, the

claimant was admitted to the hospital for a period of 22

days as inpatient and it would not be possible for the

claimant to immediately get back to work. At least 3

months thereafter would be required to recuperate and

get back to his normal day to day activities. Accordingly,

inclusive of the inpatient period, four months period is

taken. Accordingly, Rs.28,000/- (Rs.7,000/- x 4) is

awarded under this head.

24. Though learned counsel for the claimant

vehemently argued for awarding future medical expenses,

I am afraid the same cannot be conceded to in view of the

fact that no proper evidence both oral and documentary

have been produced by the claimant to show that he

requires any future medical treatment, due to which the

tribunal has rightly rejected the same. I do not wish to

interfere with the said finding of the tribunal. In view of

the above, this Court is of the opinion that the claimant is

entitled to marginal indulgence for enhancement of

compensation.

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

enhancement of compensation as per the table mentioned

hereunder.

             Heads.             As awarded As awarded by
                                   by the    this Court
                                  tribunal      (Rs.)
                                    (Rs.)
Pain and suffering                50,000-00    50,000-00
Loss of amenities and             25,000-00    30,000-00
future unhappiness.
Medical expenses incurred      30,000-00             50,000-00
Incidental expenses            20,000-00             22,000-00
Loss of income during laid    21,000-00              28,000-00
up and rest period
Loss of future income       2,26,800-00             2,26,800-00
Future medical expenses          Nil                   Nil
                     Total: 3,72,800-00            4,06,800-00
  Enhanced compensation:                             34,000-00

26. Accordingly, I pass the following:

ORDER

i) Appeal is partly allowed.

ii) Judgment and award dated 27.12.2014 passed by

the Senior Civil Judge & Member Addl.MACT.,

Bailhongal, in MVC No. 2558/2012, is modified.

iii) Claimant is entitled for a total compensation of

Rs.4,06,800/- as against Rs.3,72,80/- awarded by

the tribunal.

iv) Respondent Nos.2 and 4-insurer shall pay the

enhanced compensation with interest at 6% p.a.

from the date of petition till the date of realization,