Mr Harishchandra vs Mr Harishchandra
2022 Latest Caselaw 4109 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF MARCH, 2022

                       BEFORE

     THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL No.826 OF 2019 (MV-I)

BETWEEN:

MR. HARISHCHANDRA,
S/O DUGGANNA KULAL,
AGED ABOUT 39 YEARS,
R/AT SOUTHEBALLI HOUSE,
PANJIKALLU VILLAGE & POST,
BANTWAL TALUK,
PRESENTLY R/A DOOMAPPA COMPOUND,
PANDESHWAR, MANGALORE,
D.K. - 575 004.
                                         ... APPELLANT
(BY SRI.RAVISHANKAR SHASTRY G., ADVOCATE)

AND:

1.     MR. HARISHCHANDRA,
       S/O SHEENAPPA MOOLYA,
       AGED 39 YEARS,
       R/A KOBMARABAILU HOUSE,
       MOODU NADUGODU VILLAGE,
       BANTWAL TALUK,
       D.K. DISTRICT - 574 211.

2.     NATIONAL INSURANCE CO. LTD.,
       II FLOOR, OPP:HOTEL OCEAN PEARL,
       NAVABHARATH CIRCLE, INLAND ORNATE,
       KODIALBAIL, MANGALURU,
       D.K. - 575 003.
       REPRESENTED BY ITS
       BRANCH MANAGER.
                                        ... RESPONDENTS

(BY SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R2;
    R1 SERVED UNREPRESENTED)
                       *****
                           -2-


     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 04.05.2018 PASSED IN MVC NO.541/2016 ON THE
FILE OF THE III ADDITIONAL DISTRICT & SESSIONS JUDGE,
MEMBER, MACT - IV, D.K.MANGALURU, DISMISSING THE
CLAIM PETITION FOR COMPENSATION.

     THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                  JUDGMENT

This appeal is preferred by the claimant being

aggrieved by the impugned order of dismissal passed by

the III Additional District and Sessions Judge and MACT,

Dakshina Kannada, Mangaluru (hereinafter referred to

as 'the Tribunal' for short) in M.V.C.No.541/2016 dated

04.05.2018.

2. Brief facts of the case:

On 17.12.2015 when the claimant along with his

mother aged 75 years was proceeding towards Karenki

side by riding his motor cycle bearing Reg.No.KA-19-

EC3292, at about 9.00 a.m., an auto rickshaw bearing

Reg. No.KA-19-A-5926 came from the opposite direction

near Adambalike of Bantwal Taluk on Agrahara- Karenki

Road in a high speed and in rash and negligent manner

and dashed against the motor cycle, due to which, the

claimant sustained grievous injuries. Immediately, the

claimant has taken first aid treatment at Government

Hospital, Bantwal. Thereafter, he was shifted to Father

Muller's Hospital at Thumbe, wherein, he underwent

treatment as an in-patient from 17.12.2015 to

23.01.2016 and spent more than Rs.75,000/- towards

medical expenses and other incidental charges. It is

stated by the claimant that he was working as a

'Carpenter' prior to the date of the accident and was

earning an income of Rs.30,000/- per month. It is

further stated that due to the accident caused by the

driver of the auto rickshaw, the claimant has suffered

permanent disability due to which he has lost his future

earning capacity. Therefore, he had filed a claim petition

before the Tribunal seeking compensation against the

respondents, viz., the driver-cum-owner of the auto

rickshaw and the insurer of the said auto rikshaw.

3. On service of notice, respondents No.1 and

2 have appeared. However, respondent No.1 did not

file statement of objections. Respondent No.2 filed

statement of objections denying the accident having

occurred due to rashness and negligence as alleged

against respondent No.1. However, respondent No.2

admitted that the auto rickshaw in question was insured

with respondent No.2. It further denied the liability to

pay compensation on the ground that the driver of the

auto rikshaw was not holding a valid and effective

driving licence as on the date of occurrence of accident.

4. On the basis of the pleadings, the Tribunal

has framed relevant issues for consideration.

5. In order to substantiate the issues framed

and to establish the case, the claimant has examined

himself as P.W.1 and got marked documents from

Ex.P.1 to Ex.P.16. Respondent No.2 however has not

stepped into the witness box and did not choose to

produce any document in support of his case.

6. After hearing the learned counsel for the

claimant as well as respondents and on perusal of both

the oral and documentary evidence on record, the

Tribunal being not satisfied with the material document

produced by the claimant, dismissed the claim petition.

Aggrieved by the same, the claimant is before this Court

challenging the said dismissal order.

7. It is the vehement contention of learned

counsel for the claimant that the impugned judgment

and award passed by the Tribunal is erroneous and

opposed to law and facts and circumstance of the case.

He would further contend that the Tribunal has erred in

not considering both the oral and documentary evidence

and the impugned judgment deserves to be set aside

due to erroneous appreciation of evidence. He further

contends that the Tribunal has not considered the

material evidence produced by the claimant at Ex.P.1 to

Ex.P.16, moreso with the fact that Ex.P.1 to Ex.P.8

being the police records which are not disputed by the

respondents has not been appreciated and has given a

go-bye to the same thereby, causing miscarriage of

justice to claimant. Learned counsel further contends

that in view of there being no challenge to the charge

sheet filed by the police after conducting enquiry and

investigation, the Tribunal has erred in not accepting it

on the face value and since there being no contra

material evidence produced by the respondents, same

requires to be set aside and compensation needs to be

awarded in favour of the claimant.

8. He further contends that the Tribunal has

erred in not noticing the fact that the respondents have

not stepped into the witness box to disprove the case of

the claimant. Learned counsel further contends that the

Tribunal has ignored Ex.P.6 which is a true copy of spot

mahazar and Ex.P.7 being a true copy of the sketch,

which would clearly depict the area of occurrence of the

accident which is just two feet away from the road,

wheras the entire width of the road was 12 feet and the

auto rikshaw namely respondent No.1 had come to the

extreme right of the road and leading to occurrence of

the accident. Thereby, negligence ought to be attributed

to the driver of the auto rickshaw- respondent No.1,

which has been ignored completely ignored by the

Tribunal. Hence, the same is erroneous in law.

9. Learned counsel for the claimant further

contends that the respondents in fact have not disputed

the involvement of the vehicle in question, whereas, the

Tribunal has doubted the involvement of the vehicle

namely the auto rickshaw bearing registration No.KA-

19-A-5926 which is beyond the scope of pleadings and

the same is erroneous in law and hence, interference of

this Court is required in the matter. Learned counsel

further contended that the Tribunal has not taken into

consideration the avocation and the monthly income of

the claimant for assessing the income for computation

of compensation to be awarded, which again calls for

interference by this Court. Learned counsel further

contends that as per the evidence of P.W.2 who is none

other than the doctor having examined the claimant has

rightly assessed that there is 16% permanent disability

to the right lower limb of the claimant. Therefore, 16%

disability has been attributed and therefore, the same

ought to have been applied as it was the expert opinion

expressed by the doctor, which has not been considered

by the Tribunal, thereby, causing miscarriage of justice

to the claimant.

10. On these grounds, learned counsel for the

appellant claimant seeks to allow the appeal and to

award compensation by setting aside the impugned

judgment and award passed by the Tribunal.

11. Per contra, learned counsel Sri S.V.Hegde

Mulkhand appearing on behalf of respondent No.2

vehemently contends that the impugned judgment and

award passed by the Tribunal is in accordance with both

the oral and documentary evidence and there is no legal

infraction or infirmity in the judgment and award passed

by the Tribunal. Hence, it does not warrant interference

at the hands of this Court. Learned counsel further

contends that the occurrence of the accident is due to

the sole negligence and rashness by the claimant who

was riding the motor cycle in a high speed coming from

the down hill.

12. The primary contention of the learned

counsel for the respondent is that the vehicle in

question mainly KA-19-A-5926 was not at all involved in

the accident and even according to the MLC register

received from the Government Hospital, Bantwala, the

auto rikshaw which was involved in the accident is

stated to be KA-19-9632. Therefore, according to the

learned counsel there is no involvement of the auto

rikshaw bearing registration No.KA-19-A-5926 in the

alleged accident as claimed by the claimant. It is his

contention that it is a fictitious case preferred by the

claimant and the Tribunal has rightly rejected the claim

and dismissed the claim petition.

13. Learned counsel further contends that

admittedly no document is produced by the claimant to

show the proof of his income as the claimant being a

carpenter by profession. Merely, by stating that he was

earning Rs.30,000/- p.m., same cannot be accepted and

the Tribunal has rightly rejected the same. Learned

counsel further contends that on over all consideration,

it is also seen that if this Court accepts that the auto

rikshaw as alleged was KA-19-A-5926, even then, there

is a contributory negligence that should be attributed

against the claimant who was riding his motor cycle in a

high speed from the down hill gradient. Learned

counsel for the Insurer further contends that the P.W.2-

doctor who has examined the claimant has categorically

stated that the claimant has fully recovered after the

surgery and the fractures have been united. It is

further contended by learned counsel that P.W.2 has

stated that the claimant has no difficult to work as a

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Carpenter. Apart from statement of P.W.2 that the

claimant cannot do Carpenter work continuously, no

document is produced before the Court to show that the

claimant has suffered permanent disability and thereby,

he is unable to work in future as Carpenter.

14. On the basis of these submissions, learned

counsel for the Insurer prays for dismissal of this appeal

as there is no merit in the appeal and the impugned

judgment and award does not warrant interference by

this Court.

15. Having heard learned counsel for the

appellant- claimant as well as learned counsel for the

respondent- Insurer, point that would arise for

consideration before this Court is;

1. "Whether the Tribunal is justified in dismissing the claim petition preferred by the claimant?

2. Whether the claimant is entitle to compensation for the accident having occurred on 17.12.2015 between the motor cycle bearing Reg.No.KA-19-9632 and KA-19-A-5926?"

- 11 -

16. It is not in dispute that the accident

occurred on 17.12.2015 between the rider of the

motorcycle bearing Reg.No.KA-19-EC-3292 i.e., the

claimant and the driver of the auto rikshaw bearing

Reg.No.KA-19-A-5926 as per the statement of

objections filed by respondent No.2- Insurer before the

Tribunal. However, the respondent No.2- Insurer has

attributed the entire negligence and rashness against

the rider of the motorcycle i.e., the claimant herein and

hence, pleaded that the liability cannot be attributed to

the driver of the auto rikshaw. It is further pleaded in

the statement of objections by the Insurer that there is

no permanent disability. The avocation and income of

the claimant is disputed and the medical expenses

expended by the claimant is also disputed. However,

respondent No.2 has admitted issuance of policy and

the same being valid as on the date of occurrence of the

accident, but has pleaded that as on the date of the

accident, the auto rikshaw bearing Reg.No.KA-19-A-

5926 had no valid and effective driving licence and has

violated the provisions of the Motor Vehicle Act and

contended that the respondent- Insurer is not liable to

- 12 -

pay any compensation for violation of the policy terms

by the driver of the auto rikshaw bearing Reg.No.KA-19-

A-5926.

17. It is to be seen now whether the claimant

has been able to prove the occurrence of the accident

between himself and the auto rikshaw as stated above.

To substantiate the same, the claimant has produced

Ex.P.1 to Ex.P.16. The FIR is at Ex.P.1 wherein, the

contents of the said FIR would clearly depict that the

accident has occurred on 17.12.2015 and the FIR is

registered against the driver of the auto rikshaw bearing

registration No.KA-19-A-5926 for the offence punishable

under Section 279, 337 and 338 of Indian Penal Code.

The involvement of the motorcycle of the claimant is

also specifically mentioned in the said FIR. Ex.P.2 is

copy of the complaint. Ex.P.8 is copy of the Charge

Sheet and the said Charge Sheet is filed against the

driver of the auto rikshaw bearing Reg.No.KA-19-A-

5926. The claimant has also produced Ex.P.6 and

Ex.P.7 copy of the spot mahazar and the sketch to show

occurrence of the accident, which also mentions the

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auto rikshaw bearing Reg.No.KA-19-A-5926 being

involved in occurrence of the accident.

18. It is relevant to note here that Ex.P.1 to

Ex.P.8 being the police records are prepared by the

police after conducting investigation and enquiry. There

is no dispute with regard to these documents and there

is no challenge either by the driver of the auto rikshaw

or by respondent No.2- Insurer herein. Therefore, it is

clearly apparent on the face of the records at Ex.P.1 to

Ex.P.16 that there is involvement of the auto rikshaw

bearing Reg.No. KA-19-A-5926 in occurrence of the

alleged accident on 17.12.2015 at 9.00 a.m. However,

it is the vehement contention of the learned counsel for

the Insurer that the MLC register which is summoned by

the Court which would depict the different vehicle

bearing Reg. No.KA-19-9632 having got involved in the

alleged accident. Therefore, it is his contention that the

auto rikshaw as claimed in the FIR and the charge sheet

was not at all involved in the alleged accident. Hence,

the Tribunal has rightly come to the conclusion by

dismissing the claim petition.

- 14 -

19. This contention of the learned counsel for

the Insurer- respondent No.2 cannot be accepted and

I am of the view that the Tribunal has erred and

mis-directed itself in coming to the conclusion with

regard to involvement of the vehicle in the accident

based on the material document available on record. It

is clearly apparent that Ex.P.1 to Ex.P.8 being the police

records does not mention anywhere with regard to the

vehicle bearing Reg.No.KA-19-9632, which is canvassed

by learned counsel for respondent- Insurer, though it

has been mentioned in the MLC register summoned by

the Court. All the records including the FIR, sketch,

spot mahazar and the charge sheet which clearly

depicts involvement of the vehicle bearing Reg.No.KA-

19-A-5926. It is the contention raised now in the

appeal stage with regard to some other vehicle being

involved on the basis of paragraph No.16 of the

impugned judgment of the Tribunal where the Court has

summed MLC register extract, which shows involvement

of the vehicle bearing Reg.No.KA-19-9632 in the alleged

accident. This aspect of the matter is not substantiated,

- 15 -

and no roof of material evidence is placed by

respondent No.2.

20. In view of the fact that the respondent-

Insurer has not disputed the involvement of the vehicle

bearing No.KA-19-A-5926 in the accident in the

statement of objection and there is no challenge to the

police records and the charge sheet filed by the police,

it can be safely concluded that the accident occurred on

17.12.2015 at about 9.00 a.m., is between the

motorcycle bearing Reg.No.KA-19-EC-3292 of the

claimant and the auto rikshaw bearing No.KA-19-A-

5926. Hence, on this point, the conclusion and the

finding arrived at by the Tribunal with regard to

non-involvement of the auto rikshaw bearing No.KA-19-

A-5926 is not proper. Accordingly, same is liable to be

set aside.

21. With regard to the income and avocation of

the claimant, the same has to be considered on the

basis of the material document produced by the

claimant. On perusal of the original records and the

evidence both oral and documentary evidence, it is seen

- 16 -

that the claimant admittedly has not produced any

material to show his proof of income, apart from

producing Ex.P.12 being the Training Certificate which

shows that he is a Carpenter by profession and has

received Training from C.E. Kamath Institute for

Artisans, Karkala, Udupi District.

22. The claimant received training from C.E.

Kamath Institution of Artisan, wherein it is shown that

the claimant has completed the training in wood, stone

carving and sculpture and he has under gone training

during the period 2001 to 2003. In the absence of any

material documents regarding proof of income the

Tribunal considered the fact that production for Ex. P12

by the claimant and has arrived at a conclusion that

claimant was involved in wood, stone carving and

sculpture, it has presumed that claimant would have

earned Rs.400/- per day. Accordingly, assessed the

monthly income of the claimant to be at Rs.12,000/- per

month though the Tribunal has dismissed the claim

petition filed by the claimant, the Tribunal on material

document produced at Ex.P12 has arrived at a

- 17 -

conclusion at Rs.12,000/- based on the avocation of the

skillful Artisan of the claimant.

23. The learned counsel for respondent -

Insurer vehemently contended that this aspect of the

matter has to be considered afresh in view of the fact

that Tribunal has dismissed the claim petition and

hence, he had not filed or challenged the judgment of

the Tribunal as it does not warrant such challenge. He

further contends that when the accident occurred in the

year 2015, even the notional income as per the LSA

Chart is Rs.9,000/- per month, the Tribunal has erred in

adopting higher income than notional income and there

is no single piece of material produced with regard to

the income of the claimant.

24. I have perused the document at Ex.P12

produced by the claimant. It is not in dispute that the

claimant was involved in doing wood, stone carving and

sculpture work and Ex.P12 evidences this fact that he

had also obtained training during the period 2001 to

2003. In that view of the matter, considering the year

of accident as 2015 atleast for the period of more than

- 18 -

ten years the claimant has worked in skillful field of

wood, stone carving and sculpture and also having

undergone training as per Ex.P12. This document has

not been disputed by the respondent - Insurer.

However, no documentary evidence, other than Ex.P12,

is produced with regard to proof of income. Therefore,

it cannot be said that claimant has to be relegated to

the post of coolie or unskilled labourer. The contention

of the learned counsel for respondent - Insurer that this

type of matter has to be considered afresh by the Court

and notional income has to be adopted, cannot be much

appreciated for the reason that, no doubt, notional

income prescribed for the year 2015 is Rs.9,000/- per

month. However, while assessing the income of the

claimant this Court will have to keep in mind the fact

that the avocation and document produced in proof of it

by the claimant.

25. In the present case on hand admittedly no

proof of income has been produced. However, the fact

that claimant is involved in doing wood, stone carving

and sculpture work and he is an Artisan by profession,

keeping in mind these aspects of the matter, the

- 19 -

Tribunal has taken Rs.400/- per day as income of the

claimant and it calculated Rs.12,000/- per month. I do

not find any legal impediment in assessing the income

of the claimant. Moreover, in the present case, the

claimant has not filed any cross objections with regard

to the amount that has been spent by him. In view of

the same the income of the claimant has to be assessed

at Rs.12,000/- per month.

26. The Claimant in support of his case got

examined PW2 - Doctor, who in his evidence has stated

that claimant has sustained permanent disability to the

right lower limb. However, he has not stated anything

with regard to the total disability to the whole body or

percentage of loss or working capacity to the claimant.

Disability certificate is produced at ex.P11 by the

claimant through the PW2-Doctor On perusal of Ex.P11

- disability certificate issued by PW2, it is seen that the

claimant has sustained fracture of right tibia and fibula

as well as dislocation at hip and claimant was inpatient

from 17.12.2015 to 23.01.2016. He also underwent

reduction of hip dislocation and plating for tibia fracture

and open reduction and internal fixation of acetabular

- 20 -

fracture on 19.12.2015 and wound debridement on

05.01.2016 and grafting on 18.01.2016. PW2 further

deposed that on the basis of clinical and radiology

examination of the claimant he assessed his disability

and as per the disability evaluation guidelines issued by

Government of India 1981 (Modified Kessler's Criteria),

he assessed by at 16% tw permanent disability of right

lower limb. The same cannot be ignored in view of the

fact that it is assessed by the doctor.

27. The Tribunal, however, on consideration of

the evidence adduced by the PW2-Doctor and on

perusal of Ex.P11, has arrived at a finding that the

claimant has recovered fully after the surgery and there

is no difficulty to work as a carpenter, which fact is

admitted by PW2 in his cross examination. In that view

the Tribunal has opined that at the most claimant would

be entitled for compensation under the head loss of

amenities.

28. Having considered the aspect of evaluation

of disability and also ex.P11, I am of the opinion that

claimant has undergone surgery and was undergone

- 21 -

training in wood, stone carving and sculpture and

sustained disability at 16% to the right lower limb and

5% to the whole body, he is entitled to compensation

under the head loss of future income.

29. The claimant was aged 36 years at the time

of accident. The multiplier applicable to the claimant as

per the judgment of 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 would be 15.

Accordingly, multiplier 15 has been adopted by the

Tribunal which is not disputed by the respondents.

Accordingly, the claimant is entitled for compensation in

a sum of Rs.1,08,000/- (Rs.12,000/- X 12 X 15

X5/100) under the head loss of future income.

30. Under the head pain and suffering, the

Tribunal has awarded a sum of Rs.50,000/-, which I feel

is on the lower side and it is enhanced by another

Rs.10,000/- and claimant is entitle for compensation in

a sum of Rs.60,000/- under the head pain and

suffering.

- 22 -

31. The Tribunal towards medical expenses and

incidental charges has awarded a sum of

Rs.1,30,000/- on the basis of medical bills produced

by the claimant, which are at Ex.P14 and the same is on

the actual basis. I do not find any reason to interfere

and the same is retained.

32. Towards loss of income during the period of

treatment the Tribunal has awarded a sum of

Rs.36,000/- which I do not find is just and reasonable

and hence the same is not disturbed.

33. Tribunal has awarded a sum of Rs.20,000/-

towards loss of amenities, which I feel need

enhancement by another Rs.10,000/- and thus, under

this head the claimant would be entitled to a sum of

Rs.30,000/-, which is just and reasonable.

34. A sum of Rs.20,000/- is awarded by the

Tribunal towards future medical expenses and I do not

find any reason to interfere with the same and hence it

is retained.

- 23 -

35. It is vehemently contended by the learned

counsel for respondent No.2 - Insurer that there is no

negligence on the part of driver-cum-owner of the auto

rickshaw. On perusal of Ex.P6 - True copy of spot

mahazar and Ex.P7 - True copy of sketch, it is seen that

the claimant was coming from North to South and Auto

was moving from South to North. The total width of the

road being 12 ft, the place of occurrence is shown as 2

ft. from the Eastern side and auto dashed against the

two wheeler ridden by the claimant. Though learned

counsel for respondent No.2 - Insurer contend that the

width of the road is 15 ft., it was the negligence of the

claimant, I am unable to accept the said argument

being canvassed for the simple reason that as per Ex.P7

the width of the road is 12 ft. and the accident spot was

2 ft. away from Eastern side.

36. Therefore, I find any reason in the

arguments putforth by the learned counsel for

respondent No.2 - Insurer with regard to contributory

negligence on behalf of claimant. It is also to be seen

and kept in mind that admittedly claimant was riding

with his mother as pillion rider and her age is 75 years.

- 24 -

In the circumstance, when a person is riding a two

wheeler with his mother as pillion rider, he could not

ride it in a high speed. Therefore, this Court will have

to not only go on the basis of the material documents,

but we have also to apply common sense while arriving

at the conclusion with regard to contributory negligence

on the part of claimant. More so, the Motor Vehicle Act

is a National Welfare Legislation, which is drafted and

enacted for the purpose of arriving at a just and

reasonable decision for the benefit of the claimant.

37. In view of the discussions made above, the

claimant would be entitled for the enhanced

compensation as mentioned in the table below.

   Sl.No.           Heads            Amount (Rs.)
     1.   Loss of future income     Rs.1,08,000=00
          (Rs.12,000/- X 12 X 15 X
          5/100)
     2.   Loss of income during the      36,000=00
          period of treatment
     3.   Pain and suffering             60,000=00
     4.   Medical expenses            1,30,000=00
     5.   Loss of amenities              30,000=00
     6.   Future medical expenses        20,000=00
                             TOTAL:  3,84,650=00
                              - 25 -

38. In view of the discussions made above, I

pass the following:

ORDER

i) The appeal is partly allowed.;

     ii)    Consequently, the judgment and award

            dated     04.05.2018      passed    in    MVC   No.

541/2016 before the II Addl. District and

Sessions Judge and MACT, DK, Mangaluru,

is set aside.;

iii) The compensation is awarded at

Rs.3,84,650/- (Rupees three lakhs eighty

four thousand six hundred & fifty only),

with 6% interest from the date of claim

petition till its realization.;

iv) Registry to send back the trial Court

records.

     v)     No order as to costs.



                                               Sd/-
                                              JUDGE

PN/VK