Waheed Ali S/O Ismail Sab Payal vs Abdul Rashid S/O Nabisab And Anr
2022 Latest Caselaw 3746 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 5TH DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MFA No.200770/2021 (MV)

Between:

Waheed Ali S/o Ismail Sab Payal,
Aged 47 years, Occ: Vegetable Vendor,
R/o: Jum Jum Colony, Near City School,
Kalaburagi, Tq. & Dist: Kalaburagi-585 102.

                                              ... Appellant
(By Sri. Punith Markal, Advocate)

And:

1.     Abdul Rashid S/o Nabisab,
       Age: 50 Years, Occ: Business,
       R/o: Khaja Kadeer Colony, Bilalabad,
       Kalaburagi-585 104.

2.     The Divisional Manager,
       The United India Insurance Company Limited,
       Jawali Complex, Super Market,
       Kalaburagi-585 102.
                                        ... Respondents

(By Sri. Sudarshan M, Advocate for R2;
Notice to R1 is dispensed with)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to modify the judgment and
award dated 08.01.2018 passed in MVC No.735/2015 on
the file of the Court of the III Additional Senior Civil Judge
and   Motor      Accident    Claims   Tribunal   Kalaburagi    at
Kalaburagi    and allow      this appeal   by    enhancing    the
compensation amount by Rs.5,26,100/- only as claimed by
the appellant.


      This appeal coming on for orders, this day, the Court
delivered the following:-

                            JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) is filed by the claimants being aggrieved by

the judgment dated 08.01.2018 passed in MVC

No.735/2015 by the III Additional Senior Civil Judge

and Motor Accident Claims Tribunal, Kalaburagi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal.

3. Facts giving rise to the filing of the appeal

briefly stated are that on 22.12.2014 at about 10.30

a.m., the petitioner along with one Mashak was

standing near Rafiq Chowk Cross, Kalaburagi on the

left side of the road, at that time, the rider of a

motorcycle bearing No.KA-32/ED-0020 came from

Humnabad side in rash and negligent manner with

high speed and dashed to the petitioner, due to which

he fell down and sustained grievous injuries.

Immediately, he was shifted to Bahamani City

Hospital, Kalaburagi, wherein he took treatment as an

inpatient for one month and spent huge amount

towards his treatment. It is contended that prior to

the accident, the petitioner was hale and healthy and

working as vegetable vendor and earning `15,000/-

per month. Due to the accident, the petitioner cannot

work as early and permanently disabled to do any

work. Respondent No.1 is the owner and respondent

No.2 is the insurer of the vehicle. The respondents are

jointly and severally liable to pay compensation.

Hence, the petitioner filed a petition under Section

166 of the Act seeking compensation for the injuries

sustained in the road traffic accident.

3.1. Respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

3.2. Respondent No.2 filed written statement

denying the age, avocation, income and also accident

and manner of accident. It is also contended that the

rider of the motorcycle was not holding a valid and

effective driving licence at the time of the accident.

Respondent No.2 is not liable to pay compensation

and prayed to dismiss the claim petition.

4. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded evidence. The petitioner, in order to prove

his case, examined himself as P.W.1 and in order to

prove the disability, examined the doctor as P.W.2

and got exhibited documents namely Ex.P1 to Ex.P27.

The respondent No.2 has not adduced oral evidence

but with the consent has produced one document

which is marked as Ex.R.1. The Tribunal after

recording the evidence and considering the material

on record, by the impugned judgment, recorded a

finding that the petitioner has proved that he met with

an accident on 22.12.2014 and sustained grievous

injuries in the road traffic accident due to rash and

negligent riding of the rider of the motorcycle bearing

No.KA-32/ED-0020 and further held that the petitioner

is entitled for compensation and consequently allowed

the claim petition in part and awarded compensation

of `3,43,900/- along with interest at the rate of 6%

p.a. Being dissatisfied with the compensation awarded

by the Tribunal, the petitioner has filed the present

appeal seeking for enhancement of compensation

amount.

5. Heard the learned counsel for the petitioner

and the learned counsel for the respondent No.2.

6. The learned counsel for the petitioner

submits that the compensation awarded by the

Tribunal is on the lower side. He further submits that

the petitioner was selling vegetables and earning

`15,000/- per month and further submits that the

petitioner has suffered permanent disability in order to

establish that the petitioner has suffered permanent

disability examined the doctor as P.W.2. The doctor

was of the opinion that the petitioner has suffered

permanent disability at 36% to the whole body

wherein the Tribunal has assessed the disability at

10% which is on the lower side. Hence, on these

grounds, he prays to allow the appeal.

7. Per contra, learned counsel for respondent

No.2, Insurance Company supports the impugned

judgment and award passed by the Tribunal. He

further submits that the compensation awarded by the

Tribunal is just and proper. Hence, sought for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. The point that arise for consideration is

with regard to quantum of compensation.

10. The date, place of accident, manner of

accident is not in dispute. In order to prove the

negligence on the part of the driver of the offending

vehicle, the petitioner has produced the copy of FIR,

complaint, charge sheet and they are marked as Ex.P1

to P3. Ex.P3 charge sheet discloses that accident

occurred due to rash and negligent driving of the

driver of the motorcycle. The Tribunal was justified in

recording a finding that the accident occurred due to

rash and negligent riding of the rider of the

motorcycle. Petitioner was examined as P.W.1 and he

has reiterated the petition averments in the

examination-in-chief. He has stated that he met with

an accident and sustained grievous injuries and prior

to the accident he was doing the business of selling

vegetables and after accident he is unable to do his

work because of permanent disability, he has suffered

in the road traffic accident. In order to establish that

the petitioner has suffered permanent disability, the

petitioner examined the doctor as P.W.2 who has

issued the disability certificate as per Ex.P10. Doctor

has opined that the petitioner has suffered permanent

disability to the whole body is 36%. The Tribunal has

assessed the disability at 10% which is on the lower

side. This Court assess the disability at 12% to the

whole body.

11. The petitioner has contended that he was

doing the business of vegetable vending and earning

`15,000/- per month. In order to prove the same, the

petitioner has not produced any evidence. The

Tribunal has taken the income of the petitioner at

`6,000/- per month which is on the lower side.

Therefore, the notional income has to be assessed as

per the chart issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2014, the notional income has to be taken

at `7,500/- p.m. The petitioner is aged about 42 years

at the time of the accident and multiplier applicable to

his age group is '14'. The whole body disability is

taken at 12%. Thus, the petitioner is entitled for

compensation of `1,51,200/- (`7,500/- x 12 x 14 x

12%) on account of 'loss of future income'.

12. Considering the nature of injuries sustained

by the petitioner and also the evidence of P.W.2, this

Court reassess the compensation awarded under the

following heads:

Heads of income Awarded by Awarded by the Tribunal this Court (amount in `) (amount in `) Towards pain and 30,000/- 40,000/- suffering Towards medical 1,71,130/- 1,71,130/- expenses Towards future 1,00,800/- 1,51,200/- income Towards attendant's 14,000/- 25,000/-

     charges, food and
     conveyance
     Towards loss of                 10,000/-          25,000/-
     amenities and
     nutrition food
     Towards loss of                 18,000/-          22,500/-
     income during the
     period of treatment
     Total:                       `3,43,930/-       `4,34,830/-

Enhanced compensation : `90,900/-

Thus, the petitioner is entitled to total

compensation of `4,34,830/- as against `3,43,930/-.

13. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Tribunal in MVC No.735/2015 dated 08.01.2018 is modified. The petitioner is entitled to an enhanced compensation of `90,900/- along with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization.

             Respondent         No.2,        Insurance
     Company       is   directed     to    deposit     the
     enhanced      compensation       amount         along

with interest, within a period of eight weeks from the date of receipt of copy of this judgment.

The appellant is not entitled to interest for the delayed period of 1049 days.

The Tribunal is directed to release the enhanced compensation amount in favour of the petitioner.

Sd/-

JUDGE

VNR