Karnataka High Court
Gurushantappa S/O Satalingappa ... vs Jagadish S/O Sadashiv Jitti And ... on 3 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.200615/2016 (MV)
Between:
Gurushantappa S/o Satalingappa Kore,
Age: 36 Years, Occ: Agriculture,
R/o Loni B.K., Tq.: Indi,
and also residing at Tidagundi,
Tq.: & Dist.: Vijayapura.
... Appellant
(By Sri.Sanganagowda V.Biradar, Advocate)
And:
1. Jagadish S/o Sadashiv Jitti,
Age: 42 Years, Occ: Business,
R/oLoni B.K., Tq.: Indi,
Dist.: Vijayapura-586 101.
2. The Branch Manager,
Oriental Insurance Co.Ltd.,
1st Floor, Bidari Complex,
S.S.Front Road, Vijayapura-586 101.
... Respondents
(By Sri.Sanjay.M.Joshi, Advocate for R2;
Notice to R1 served)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act, praying to allow this appeal and
consequently set aside the judgment and award dated
29.12.2015 passed by the Member, MACT No.V, at
Vijayapura, in MVC No.107/2014.
This appeal coming on for admission, this day, the
Court delivered the following:-
JUDGMENT
This appeal is filed by the claimant under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
aggrieved by the judgment and award dated 29.12.2015
passed by Principal Senior Civil Judge and MACT-V,
Vijaypur, (for short hereinafter referred to as 'the
Tribunal') in MVC No.107/2014.
2. Facts giving rise to filing of this appeal are
as under:
On 06.10.2013 at about 6.45 p.m., claimant was
travelling as a pillion rider on the motorcycle bearing
registration No.KA-05/HK-4423. When he was near
Yelgi cross on Dhulkhed-Zalaki road, the rider of the
said motorcycle caused the accident due to rash and
negligent, in which the claimant has sustained fracture
injuries and spent huge amount for medical
treatment. It is contended that the claimant was an
agriculturist and getting monthly income of
Rs.10,000/- Now he is permanently physical disabled.
Hence, the claimant has filed claim petition under
Section 166 of M.V.Act, seeking compensation for the
injuries sustained in the road traffic accident.
2.1. Respondent No.2-Insurance Company filed
written statement denying the averments made in the
claim petition. It is specifically contended that liability
of the Insurance Company is subject to the terms and
conditions of the Insurance Policy. As on the date of
the accident, rider of the motorcycle was not holding
valid and effective driving license. Hence, the prayed
to dismiss the claim petition.
2.2. On the basis of the pleading, the Tribunal
framed the following issues;
(a) Whether petitioner proves that he has
sustained injuries in a motor vehicle
accident that was taken place on
06.10.2013 at about 06.45 p.m., near
Yelagi cross, on Dhulkhed-Zalaki road,
due to rash and negligent riding of the
motorcycle bearing its registration
No.KA-05/HK-4423 by its driver involved
in this case, as contended?
(b) What is just and reasonable
compensation amount for which
petitioner is entitled for? If so, what
amount, what interest and from whom it
is recoverable?
(c) What is final order or award?
2.3. The claimant was examined himself as
PW.1 and also one witness as PW.2 and got marked
documents Exs.P1 to P10. Respondent No.2-
Insurance Company got marked the insurance policy
as Ex.R1 and did not chose to adduce any oral
evidence. After recording the evidence and
considering the material on record, the tribunal held
that the claimant failed to prove that he has sustained
injuries in a motor vehicle accident that has taken
place on 6.10.2013 at about 6.45 p.m. near Yelagi
cross on Dhulkhed-Zalaki road, due to rash and
negligent riding of the motorcycle bearing registration
No.KA-05/HK-4423, by its driver involved in this case
as contended and further held that the claimant is not
entitled for any compensation and consequently
dismissed the claim petition. Hence, this appeal.
3. Heard the learned counsel for the appellant
and learned counsel for respondent No.2-Insurance
Company.
4. Learned counsel for the appellant submits
that the appellant-claimant has produced records to
show that the accident was occurred on 06.10.2013
and the appellant sustained injuries in the said road
accident. The said fact was not properly considered
by the tribunal. He further submits that in order to
establish the disability the claimant examined the
doctor as PW.2. The tribunal had overlooked the
documents produced by the appellant. He further
submits that the judgment and award passed by the
tribunal is arbitrary and erroneous. Hence, on these
grounds, he prays to allow the appeal.
5. Per contra, learned counsel for the
respondent No.2-Insurance Company supports the
impugned the judgment and award. He further
submits that the alleged accident took place on
06.10.2013, wherein a complaint was lodged on
14.10.2013. He further submits that the appellant-
claimant has not explained the reasons with regard to
the registering the FIR after 8 days from the date of
alleged accident. He further submits that the
judgment and award passed by the tribunal is just and
proper and does not call for any interference. Hence,
on these grounds, he prays to dismiss the appeal.
6. Perused the records.
7. After hearing the learned counsel for the
parties, the point that arise for consideration is in
regard to the quantum and liability.
8. It is the case of the appellant-claimant that
the claimant has met with an accident on 06.10.2013
wherein he has sustained injuries. In order to
establish that the accident was occurred on
06.10.2013, the claimant has produced copy of FIR,
complaint, seizure of vehicle, MV report and wound
certificate.
9. From perusal of the records produced by
the appellant though it is alleged that the accident
was occurred on 06.10.2013 at about 6.45 p.m.,
whereas the crime was registered on 14.10.2013.
There is delay of 8 days in registering the crime and
there is no explanation from the claimant for the said
delay in registering the crime. Further in the first
information some attempt has been made to give
explanation for non registration of the crime at the
earliest point of time. But, however these documents
makes it clear that the Investigating Officer after
detailed investigation found sufficient evidence against
the rider of the said motorcycle and filed charge
sheet. The said charge sheet has been filed against
the rider of the vehicle. The respondent No.2-
Insurance Company has not challenged the charge
sheet filed against the rider of the vehicle. Further,
the appellant has produced Ex.P10 i.e. the entire case
sheet of Tanga hospital. As per Ex.P10, the appellant-
claimant was admitted in the said hospital on
06.10.2013 at 1.00 p.m., and even in the case sheet
it is specifically mentioned that the claimant has
sustained injuries in the road traffic accident on
06.10.2013. From perusal of the aforesaid record it
clearly indicates that the accident was occurred due to
rash and negligent riding of the rider of the vehicle
involved in the accident. The tribunal has committed
an error in rejecting the claim petition solely on the
ground that there is delay in registering the crime.
10. The case sheet produced by the appellant-
claimant discloses that the claimant was discharged
from the hospital on 15.10.2013, wherein the crime
was registered on 14.10.2013, wherein the claimant
was under medical treatment because of the injuries
suffered by him in the road traffic accident. Hence, for
the said reason, the appellant-claimant could not able
to lodge the criminal case at the earlier point of time.
The tribunal without considering Ex.P10 has
proceeded to reject the claim petition filed by the
claimant.
11. In order to prove the disability, the
claimant examined the doctor as PW.2, who has
issued the wound certificate which is marked as Ex.P5
and also issued disability certificate as per Ex.P9.
From perusal of Ex.P9, the claimant has sustained in
all two injuries (1) fracture of right proximal 1/3rd
right without DNVD and (2) injury is Type-1 fracture
of right Tibial condyle. The appellant-claimant was in-
patient from 06.10.2013 to 15.10.2013.
12. From perusal of the records, the appellant-
claimant has sustained permanent disability as per the
doctor-PW2 who stated in his evidence that the
appellant is having 10-15% of physical disability in
respect of right upper limb and also to some extent of
right lower limb. The tribunal has assessed the
disability at 7%. The disability assessed by the
tribunal is just and proper and does not call for any
interference in respect of assessment of disability is
concerned. It is the case of the appellant that he was
an agriculturist and earning Rs.10,000/- per month
from the agricultural sources. In order to support the
contention of the appellant-claimant, he has not
produced any records to show that he was having
income of Rs.10,000/- per month. In the absence of
any proof, this Court assessed the income as per the
Lok Adalath chart prepared by the Karnataka State
Legal Services Authority, which is based on minimum
wages, in the absence of any specific evidence, during
the year 2013, the minimum wages is to be
considered as Rs.7,000/-. Therefore, the
compensation calculated at Rs.6,000/- by the Tribunal
is in-correct and the income to be calculated at
Rs.7,000/- per month.
13. As on the date of the accident, the claimant
was aged 34 years, as per the decision of Hon'ble
Apex Court in the case of SARLA VERMA (SMT) &
OTHERS VS. DELHI TRANSPORT CORPORATION &
ANOTHER, reported in (2009) 6 SCC 121, the
multiplier applied to the age group of the appellant is
16. The compensation under the head loss of future
income on account of permanent physical disability
works to Rs.7,000 x 12 x 16 x 7% = Rs.94,080/- as
against Rs.80,640/- awarded by the tribunal.
14. Considering the documents produced by
the appellant, this Court re-assessed the
compensation as under;
Sl.No. Heads By Tribunal By this Court
1. Injury, pain & Rs.30,000/- Rs.40,000/-
sufferings
2. Medical expenses Rs.56,073/- Rs.56,073/-
3. Loss of future income Rs.80,640/- Rs.94,080/-
4. Attendant charges, Rs.15,000/- Rs.25,000/-
conveyance charges,
food & nourishment,
loss of income during
laid up period
5. Loss of amenities Rs.25,000/- Rs.40,000/-
Total Rs.2,06,713/- Rs.2,55,153/-
15. In view of the above discussions, I pass the
following:
ORDER
(a) The appeal is allowed in part.
(b) The appellant/claimant is entitled for the
compensation in a sum of Rs.2,55,153/- as
against Rs.2,06,713/- granted by the
Tribunal with interest @ 6% p.a. from the
date of petition till realization.
(c) The respondent No.2-Insurance Company
shall deposit the compensation within a
period of two months from the date of
receipt of a copy of this order.
Sd/-
JUDGE
msr
