Karnataka High Court
Sri. Basavarajappa vs Managing Partner on 9 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.5691 OF 2019 (MV)
BETWEEN:
SRI BASAVARAJAPPA
S/O.UJJINAPPA
AGED ABOUT 46 YEARS
AGRICULTURIST AND BUSINESS
R/AT GUDDADASANTHENAHALLI
VILLAGE, HOLALKERE TALUK
CHITRADURGA DISTRICT - 577 526 .. APPELLANT
(BY SRI T.C.SHIVAKUMARAPPA, ADVOCATE)
AND:
1. MANAGING PARTNER
M.MARIMUTHU
SRI MEENAKSHI BOREWELLS
R/AT VALMIKI NAGARA
B.H.ROAD, BATAWADI
TUMAKURU DISTRICT
OWNER OF THE BOREWELL
LORRY BEARING
REGISTRATION NO.KA-06/P-6031
2. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO.LTD.
BRANCH OFFICE 160/1
NARASARAJA ROAD
DAVANAGERE - 577 002 ... RESPONDENTS
(BY SRI RAVI S.SAMPATHI, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH
V.O.D 10.03.2020)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT
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PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
31.05.2019 PASSED IN MVC NO.402/2018 BY THE SENIOR
CIVIL JUDGE AND JMFC, HOLALKERE AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the claimant challenging
the judgment and award passed by the learned Senior Civil
Judge, Holalkere in MVC.No.402/2018 dated 31.05.2019.
Appeal is founded on the premise of inadequacy of
compensation.
2. Though this matter is listed for admission, with
consent of learned counsel on both sides, matter is taken
up for final disposal.
3. Parties to the appeal shall be referred to as per
their status before the tribunal.
4. Brief facts of the case are as under:
On 08.02.2018 at about 8.30 p.m., the claimant was
sitting on a tractor-trailer bearing registration No.KA.16/TB-
0731, beside the Guddadasanthenahalli gate road, near
Thirumalapura Village, Holalkere Taluk, at that time, the
driver of borewell lorry bearing registration No.KA-06/ P-
6031 came from opposite direction with high speed in a
rash and negligent manner without observing traffic rules
and regulations in order to endanger human life and safety,
dashed against the driver of tractor-trailer and thereby
caused the accident. Due to the impact of the accident, the
claimant fell down and sustained grievous injuries all over
his body. Pursuant to the accident, claimant was
immediately shifted to Government Hospital, Holalkere
where he took first aid treatment and thereafter shifted to
SSIMS Hospital, Davanagere where he took treatment as
inpatient and as outpatient. It is stated that the claimant
was doing agricultural work and business and the accident
was caused due to the sole rash and negligent driving of
the driver of the borewell lorry, the claimant has lost his
future earning capacity and accordingly, he has filed a claim
petition before the tribunal seeking compensation from the
respondents.
5. On service of notice, respondent No.1 admitted
that he was the owner of the offending borewell lorry and
respondent No.2 is the insurer of the said vehicle.
Respondent No.1 pleaded that since his vehicle was insured
with respondent No.2, liability if any will have to be saddled
on respondent No.2 as he has valid and effective driving
licence and the insurance policy was in force as on the date
of occurrence of the accident. Respondent No.2-Insurer in
his statement of objections denied the occurrence of
accident being solely due to the negligence of the driver of
the borewell lorry and attributed negligence to the claimant,
who was sitting on tractor-trailer being parked on the
middle of the road without giving any proper signal and
therefore, violated the rules and regulations of the motor
vehicle. On several other grounds urged therein, he sought
for dismissal of claim petition. Based on the pleadings, the
tribunal framed the issues.
6. In order to substantiate the issues and establish
his case, the claimant got himself examined as PW.1 and
examined the Doctor as PW.2 and got marked the
documents as per Exs.P1 to P11. On the other hand,
though the respondents have not examined any witness on
their behalf, respondent No.2-Insurer has got marked
Ex.R1-insurance policy.
7. On the basis of material evidence both oral and
documentary, the tribunal arrived at a conclusion in
awarding compensation to an extent of Rs.2,33,635/- with
interest @ 6% p.a.
8. Being dissatisfied with the amount of
compensation awarded by the tribunal, the claimant is
before this Court in this appeal seeking enhancement of
compensation.
9. It is vehement contention of learned counsel for
claimant that the tribunal has erred in not appreciating the
material evidence both oral and documentary and has
grossly erred in not awarding suitable compensation to the
claimant. It is further contended that the tribunal has
assessed meager income which is not commensurate to the
notional income chart prescribed by the Legal Services
Authority. Therefore, the judgment and award passed by
the tribunal requires to be set aside and the compensation
requires to be enhanced in favour of claimant.
10. Learned counsel for appellant-claimant further
contends that despite examination of the Doctor as PW.2
who has issued disability certificate-Ex.P7 assessing the
permanent disability to an extent of 31.80% to the right
upper limb and 15.23% to right lower limb. The total
disability works out to an extent of 15% whereas the
tribunal assessed the permanent disability to an extent of
10% which is erroneous in law and same requires
interference at the hands of this Court. On these grounds,
learned counsel for claimant seeks to allow the appeal and
for enhancement of compensation.
11. Per contra, learned counsel for respondent No.2-
Insurer vehemently contends that the judgment and award
of the tribunal is in accordance with law and material
documents produced by the claimant. He further contends
that no documentary evidence has been placed by the
claimant in proof of his income. Therefore, the tribunal has
rightly assessed the income at Rs.6,000/- per month, so
also, the disability stated by the Doctor to an extent of 15%
is rightly computed at 10% to the whole body. Therefore,
the same does not call for interference by this Court.
Learned counsel for the Insurer also contends that the
tribunal has awarded just and reasonable compensation
under the other heads as stated in para-31 in tabular
column. On these grounds, he contends that no
interference is required by this Court as the compensation
awarded by the tribunal is just and reasonable.
12. Having heard submissions of learned counsel for
appellant-claimant and learned counsel for respondent
No.2-Insurer, I am of the considered opinion that on
perusal of entire material placed before the Court both oral
and documentary, the claimant is entitled for marginal
indulgence in enhancement of compensation for the
reasons mentioned hereinbelow:
(a) It is not in dispute that on 08.02.2018 at 8.30
p.m., the claimant was sitting on a tractor-trailer bearing
No.KA-16/TB-0731 met with an accident, at that time, the
driver of borwell lorry bearing registration No.KA-06/P-6031
came from the opposite side and dashed against tractor-
trailer on Guddadasanthenahalli gate road. Due to which,
the claimant suffered grievous injuries. In order to establish
this aspect of the matter, the claimant has got examined
himself as PW.1 and produced documents as per Exs.P1 to
P6 which are the Police records to show the registration of
criminal case as against the driver of the borewell lorry.
13. These Police records produced at Exs.P1 to P6
are not disputed and it is not challenged by the driver of
lorry. In view of therebeing no challenge to said registration
of criminal case against the driver of offending vehicle, it
can be safely concluded that the lorry in question was
involved in the accident which was due to the rash and
negligent driving of driver of the lorry. There being no
contrary evidence by the Insurer to the effect that there
was contributory negligence and that the driver of the
offending vehicle was not involved in the accident, the
version and contention of the claimant will have to be
accepted and same is rightly accepted by the tribunal.
(b) Now coming to the aspect of avocation and
income of the claimant, though it is stated that the claimant
was doing agricultural work, no material has been produced
before the Court to show that the claimant was doing
agricultural work and earning income as stated in the claim
petition. More so, with regard to the amount claimed being
Rs.20,000/-, the same is not substantiated. In view of the
fact that no material documents has been produced
regarding proof of income, the tribunal has assessed the
income at Rs.6,000/- per month based on the judgment of
this Court.
(c) In a case, where the claimant does not produce
any proof of income and no material is placed before the
Court with regard to income, the Court will have to adopt a
guess work based on the avocation of the claimant and
income for computation of compensation. To facilitate the
same, the High Court Legal Services Authority prescribed a
chart of notional income for the year of accident.
Accordingly, in the present case, accident occurred in the
year 2018, the notional income prescribed by the Legal
Services Authority is Rs.12,500/- per month. Therefore, I
deem it appropriate that in the present case also, the
income is to be assessed at Rs.12,500/- per month.
(d) There is no dispute with regard to age of the
claimant being 45 years as on the date of accident.
Therefore, in accordance with the judgment of the Hon'ble
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,
appropriate multiplier would be '14' which is rightly
adopted by the tribunal.
(e) The claimant has got examined PW.2-Doctor who
has adduced evidence and provided disability certificate at
Ex.P7, wherein it is stated that there is a permanent
disability to an extent of 31.80% to the right upper limb
and to an extent of 15.23% to the right lower limb.
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Therefore, 1/3rd of the same, disability assessed by the
Doctor would be 15% whereas the tribunal has assessed
the disability to the whole body at 10%. I am in agreement
with the contention of the learned counsel for the claimant
that the same is erroneous and the same requires
interference by this Court. Accordingly, the tribunal
assessed the disability at 10%, is enhanced to 15% to the
whole body. In view of the above, the claimant would be
entitled for loss of earning capacity as under:
Rs.3,15,000/- (Rs.12,500/- x 12 x 14 x 15%) as
against Rs.1,00,800/- awarded by the tribunal.
(f) The tribunal has awarded a sum of Rs.25,000/-
under the head of pain and suffering, I deem it appropriate
to award a sum of Rs.45,000/- as against Rs.25,000/-.
The tribunal has awarded a sum of RS.10,000/- under the
head of loss of amenities, I deem it appropriate to award a
sum of Rs.25,000/- as against Rs.10,000/-.
(g) The tribunal has awarded a sum of Rs.10,000/-
under the head of loss of income during laid up period. In
view of this Court enhancing the income from Rs.6,000/- to
Rs.12,500/- per month, the same is enhanced to
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Rs.37,500/- as against Rs.10,000/- awarded by the
tribunal.
(h) Under the head of attendant charges,
nourishment and conveyance charges, the tribunal has
awarded Rs.10,000/- + Rs.5,000/- = Rs.15,000/-. I do no
find any legal error in the said amount and same is not
interfered.
(i) Towards medical expenses regarding treatment
and hospitalization, the tribunal has awarded a sum of
Rs.72,855/- which is on the basis of medical bills produced
by the claimant at Ex.P8. I do not find any reason to
interfere with the same.
13. In view of the above discussions, the claimant
would be entitled for enhancement of compensation as
mentioned below in the tabular column:
Sl.No. Heads Amount (Rs.)
1. Towards expenses relating 72,855-00
to treatment and
hospitalization
2. Towards Attendant 10,000-00
charges, nourishment and
diet food
3. Loss of amenities 25,000-00
4. Towards loss of earnings 37,500-00
during the laid-up period of
treatment
5. Towards pain and suffering 45,000-00
6. Towards conveyance 5,000-00
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charges
7. Towards loss of future 3,15,000-00
earnings on account of
permanent disability
TOTAL: 5,10,355-00
For the reasons aforestated, I pass the following:
ORDER
i) Appeal is allowed-in-part;
ii) Judgment and award passed by the learned
Senior Civil Judge, Holalkere in
MVC.No.402/2018 dated 31.05.2019 is
modified.
iii) The claimant is entitled for compensation of
Rs.5,10,355/- as against Rs.2,33,655/-
awarded by the tribunal;
iv) Respondent No.2 shall pay the enhanced
compensation amount to the claimant along
with interest @ 6% p.a. within a period of six
weeks from the date of receipt of a certified
copy of this order;
v) All other terms and conditions of the tribunal
shall stand intact;
Sd/-
JUDGE
LB
