Karnataka High Court

Sri Shivalingaiah vs Sri Shivanna on 14 March, 2022

Bench: Pradeep Singh Yerur

                           -1-



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF MARCH, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

     MISCELLANEOUS FIRST APPEAL NO.4723 OF 2019 (MV)

BETWEEN:
SRI SHIVALINGAIAH
S/O.LATE MOTAIAH
AGED ABOUT 45 YEARS
R/AT MELEHALLI VILLAGE
THIMMASANDRA POST
KOOTAGAL HOBLI
RAMANAGARA TALUK
RAMANAGARA DISTRICT - 562 160             ... APPELLANT

(BY SRI S.RAJU, ADVOCATE)

AND:
1.     SRI SHIVANNA
       S/O.VEERAPPA
       NO.26, UDAVAGERE VILLAGE
       MADABAL POST & HOBLI
       MAGADI TALUK
       RAMANAGARA DISTRICT - 572 159

2.     IFFCO-TOKIO
       GENERAL INSURANCE COMPANY LTD.,
       NO.41, 2ND FLOOR
       MANDAVI MOTORS
       KRISHNA COMPLEX
       LAVELLI ROAD
       BENGALURU - 560 001         ... RESPONDENTS

(BY SRI D.VIJAYA KUMAR, ADVOCATE FOR R-2
   NOTICE TO R-1 IS DISPENSED WITH V.O.D 02.09.2021)
                         ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
                               -2-



21.03.2019 PASSED IN M.V.C.NO.733/2014 ON THE FILE
OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM & MACT,
RAMANAGARA & 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 dated 21.03.2019 passed by the

Principal Senior Civil Judge and CJM and MACT at

Ramanagara ('the Tribunal' for short), in MVC

No.733/2014. This appeal is founded on the ground 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 03.04.2014, after claimant loaded wooden logs of

Neem trees and other jungle wood trees in bullock cart for

the purpose of making windows and doors and traveled

towards his village at 7.00 p.m., in his bullock cart, at that

time, when he reached near Bejaranahalli Katte, Kasaba

Hobli, Ramanagara Taluk, the driver of tempo bearing

registration No.KA-27-2019 came with high speed in a rash

and negligent manner so as to endanger human life and

safety, dashed against his bullock cart in which claimant

was sitting, due to which, the bullock cart was damaged

and the claimant sustained grievous injures to his right leg,

head, back, right hand and other parts of the body.

Pursuant to the accident, the claimant was taken to

Ramanagara District Hospital where he took first aid

treatment and thereafter, on the advice of the Doctor, he

was shifted to Nimhans Hospital, Bengaluru and for further

better treatment to Victoria Hospital, Bengaluru. During

the course of his treatment, the claimant states that he has

expended financial expenditure to an extent of

Rs.3,00,000/- and more. It is stated that he was hale and

healthy prior to the date of accident and was working as an

agriculturist and earning a sum of Rs.15,000/- per month

and was supporting his family. Due to the impact of

accident caused by the driver of tempo, he has suffered

permanent disability. Accordingly, he preferred a claim

petition seeking enhancement.

5. On service of notice, respondent No.1-owner of

tempo though appeared did not file objection statement.

Respondent No.2-Insurer filed detailed objection statement

denying the claim made by the claimant, wherein it was

pleaded that the tempo driver did not have a valid and

subsisting driving licence as on the date of accident, so

also, he did not have a valid permit and fitness certificate

and that the liability of the insurer would be subject to

terms and conditions of the policy. It was also pleaded by

the Insurer that the negligence is solely attributed to the

claimant, who was riding the bullock cart. On this ground,

he has sought for dismissal of the claim petition. On the

basis of pleadings, the tribunal has framed relevant issues.

6. In order to substantiate the issues and establish

the claim, the claimant himself examined as PW.1 and got

examined the Doctor as PW.2 in support of his case and

got marked documents as per Exs.P1 to P54. On the other

than, no evidence was adduced by respondents and no

documents were marked.

7. After considering the material records both oral

and documentary, the tribunal has awarded compensation

of Rs.3,01,120/- to the claimant. Aggrieved by the same,

the claimant is before this Court.

8. It is the contention of learned counsel for

appellant-claimant that the judgment and award passed by

the tribunal is erroneous in law as the same has not taken

into consideration the material evidence both oral and

documentary and thereby the tribunal has committed a

serious error leading to miscarriage of justice to the

claimant. It is further contended that the tribunal erred in

awarding meager compensation on several heads which

requires to be enhanced. On several other grounds urged in

appeal, learned counsel for appellant-claimant seeks to

allow the appeal and to enhance the compensation.

9. Per contra, learned counsel for respondent-Insurer

vehemently contends that the judgment and award passed

by the tribunal is in accordance with the material placed on

record. The tribunal has rightly considered income of the

claimant as per the notional income chart prescribed by the

Legal Services Authority, in view of there being no material

evidence produced by the claimant with regard to proof of

income. He further contends that under the other heads,

the tribunal has awarded just and reasonable

compensation. Therefore, requirement of any interference

does not warrant and he seeks for dismissal of the appeal.

10. On careful perusal of entire material placed on

record and original documents, I am of the opinion that the

claimant is entitled for marginal indulgence for

enhancement of compensation for the reasons mentioned

hereinbelow:

(a) It is not in dispute that on 03.04.2014, the

claimant while going in his bullock cart towards his village

met with an accident due to rash and negligent driving of

the driver of tempo bearing registration No.KA-27-2019.

This fact of the matter has been evidenced by documentary

evidence produced by the claimant in Exs.P1 to P4 and P50

which is the chargesheet. These police records are not

disputed by the respondents, so also, no contra material

has been produced before this Court to dispute the fact of

registration of criminal case against driver of the tempo

whereby it can be safely concluded that the rashness and

negligence of driving of the driver of tempo lead to

occurrence of accident. The award of the tribunal is also

satisfied and entire amount has been paid before the

tribunal. This fact is also not disputed. The only point

canvassed by learned counsel is that the income ought to

have been assessed by the tribunal considering the

documents at Exs.P47 and P48 produced by the claimant

which are RTC extracts. The tribunal has carefully

considered these aspects and in view of there being no

material evidence regarding the proof of income has taken

the notional income of Rs.9,000/- for computation of

compensation. More so, in view of the fact that the claimant

being agriculturist and there being, no material proof of

income, the income is assessed at Rs.9,000/- by the

tribunal as per the chart prescribed by the Legal Services

Authority. Hence, I do not find any error or legal infirmity in

the income of the claimant assessed by the tribunal, as no

material evidence is produced by the claimant regarding

proof of his income. Secondly, the age and multiplier are

taken in accordance with the admitted age of the claimant

in compliance to the judgment of 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. There is no

dispute in this regard as well.

(b) Coming to the next aspect, the claimant has

examined the Doctor-PW.2 who has assessed permanent

disability to an extent of 13.5% to the whole body. Based

on the documentary evidence, the tribunal has assessed

the disability to an extent of 13.5% for awarding loss of

future income. This aspect has also not challenged by the

Insurer and the same is rightly awarded by the tribunal on

the evidence adduced by the Doctor. The other aspects

canvassed by the learned counsel for claimant is that under

the heads, the tribunal has awarded meager compensation

and same requires to be enhanced.

learned counsel for claimant as well as learned counsel for

respondent No.2 and on perusal of impugned judgment and

award, I deem it appropriate to award Rs.60,000/- under

the head of pain, shock and suffering as against

Rs.50,000/- awarded by the tribunal, under the head of loss

of amenities of life and unhappiness, I deem it appropriate

to award Rs.25,000/- as against Rs.15,000/- awarded by

the tribunal. Under the medical treatment, conveyance and

nourishment and attendant charges, the tribunal has

awarded Rs.23,000/- and I do find any legal infirmity.

Hence, the same is not interfered. Under the head of loss

of earning during laid up period, I deem it appropriate to

award Rs.27,000/- on the basis of income assessed by the

tribunal at Rs.9,000/- per month as against Rs.9,000/-

awarded by the tribunal.

On the basis of above discussions, the claimant is

entitled for marginal enhancement of compensation.

Accordingly, I pass the following:

ORDER

i) The appeal is allowed-in-part;

ii) The judgment and award dated 21.03.2019 passed by the Principal Senior Civil Judge and CJM and MACT at Ramanagara in MVC No.733/2014 is modified;

iii) The claimant is entitled for compensation of Rs.3,39,120/- as against Rs.3,01,120/- as awarded by the tribunal;

iv) The respondent-Insurer shall deposit enhanced compensation at 6% within a period of four weeks from the date of receipt of a certified copy of this order before the concerned tribunal, failing which interest will accrue @ 9% p.a..