Karnataka High Court
Mahabalagiri @ N R Mahabalagiri vs Sreedhar T S on 15 March, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.7111 OF 2019 (MV)
BETWEEN:
MAHABALAGIRI @ N.R.MAHABALAGIRI
S/O.RAMACHANDRAIAH
AGED ABOUT 63 YEARS
R/AT NANDODI, ARALAGODU
SHIVAMOGGA TALUK
SHIVAMOGGA DISTRICT
PRESENTLY R/AT NO.45
BANNUMANE, SORABA
SHIVAMOGGA DISTRICT - 577 429 ... APPELLANT
(BY SRI CHIDAMBARA G.S., ADVOCATE)
AND:
1. SREEDHAR T.S.
S/O.THIMMAPPA
AGED ABOUT 53 YEARS
R/AT TALAKALAKOPPA VILLAGE
SORABA TALUK
SHIVAMOGGA DISTRICT - 577 429
2. THE UNITED INDIA INSURANCE
COMPANY LIMITED
J.C.ROAD, SAGAR
SHIVAMOGGA DISTRICT - 577 301
... RESPONDENTS
(BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R-2;
R-1 IS SERVED)
---
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
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15.04.2019 PASSED IN MVC NO.597/2018 BY THE SENIOR
CIVIL JUDGE AND XIII AMACT, SORABA & 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 Senior Civil Judge
and XIII Additional MACT, Soraba in MVC.No.597/2018
dated 15.04.2019. This 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 is as under:
On 29.01.2018, the claimant was riding Splendor bike
bearing registration No.KA 15 J 8634 along with a pillion
rider and while returning from Kanagodu to Nandodi Village
at about 4.45 p.m., near Kyasanooru village, a driver of
omni vehicle bearing registration No.KA-02/Z 7127 drove
the same with high speed in a rash a negligent manner so
as to endanger human life and safety, dashed against the
claimant and the pillion rider, who fell down and sustained
injuries and immediately, they were taken for treatment to
a Private Hospital and thereafter, to a Multi-Speciality
Hopsital at Shivamogga where the claimant was inpatient
from 29.01.2018 to 05.02.2018. In view of the accident
and the injuries suffered by the claimant, he has preferred
a claim petition before the tribunal seeking compensation
from the respondents, who are the owner and insurer of the
offending vehicle.
5. On notice being issued to respondents, they have
filed the statement of objections denying the claim made by
the claimant. It was pleaded by respondent No.1 that the
claimant himself was responsible for the occurrence of
accident as he was riding the bike in a rash and negligent
manner and no liability can be fastened on him.
Respondent No.2-Insurer took up the plea that the driver-
cum-owner of the omni car bearing registration No.KA-02/Z
7127 was not having a valid and effective driving licence as
on the date of accident, so also, the rider of motor cycle i.e.
the claimant herein was also not having a valid driving
licence as on the date of accident and that the accident has
occurred due to the rash and negligent driving of the rider
of the motor cycle, the claimant. The Insurer also took up
the plea that the rider of the motor cycle has not sustained
alleged injuries as stated and he does not deserve
compensation as claimed and on the basis of the same, he
has sought for dismissal of the claim petition. The tribunal
on the basis of pleadings, framed relevant issues for
consideration.
6. In order to prove and establish the case and
substantiate the issues, the claimant got examined himself
as PW.1 and marked documents as Exs.P1 to P13. The
claimant has also got examined the Doctor as CW.1 through
Court Commissioner and got marked Exs.C1 to C3, whereas
the respondents did not adduce any evidence and did not
produce any documents in support of their case.
7. After hearing both the parties and on the basis of
material evidence both oral and documentary, the tribunal
awarded compensation of Rs.2,67,500/- with interest at 6%
p.a., which was directed to the paid by the Insurer.
8. Being dissatisfied with meager compensation
awarded by the tribunal, the claimant is before in this
appeal seeking enhancement of compensation.
9. It is the vehement contention of learned counsel
for appellant-claimant that the tribunal has erred in
awarding meager compensation which is not commensurate
to the injuries sustained by the claimant and expenditure
met by the claimant during the treatment. It is further
contended by learned counsel that the tribunal has erred in
not assessing the reasonable income for assessment of
compensation. It is further contended that the tribunal has
committed a serious error in not taking the expert opinion
of the Doctor with regard to disability suffered by the
claimant and has taken the permanent disability to an
extent of 40.33% to the right upper limb, thereby caused
miscarriage of justice to the claimant. Learned counsel
further contends that the tribunal has not awarded
compensation under the heads of loss of amenities and loss
of income during laid up period. On these grounds, he
seeks to allow the appeal and seeks for enhancement of
compensation.
10. Per contra, learned counsel for the Insurer
vehemently contends that the judgment and award passed
by the tribunal is just and reasonable and the same does
not call for any interference by this Court. He further
contends that in the absence of material proof of income,
the tribunal has right assessed the income at Rs.7,500/-
per month as admittedly, the claimant is an agriculturist.
Learned counsel further contends that the assessment of
disability to the whole body taken by the tribunal is
perfectly in order and the same does not warrant
interference. The functional disability to the whole body
would have to be assessed, in view of there being no loss of
there future earning capacity with regard to avocation of
claimant and the same is in order and does not call for any
interference. He further contends that under the other
heads, the computation of compensation by the tribunal
does not warrant interference. Hence, the present appeal
deserves to be dismissed.
11. Having heard the learned counsel for the
appellant-claimant and learned counsel for the Insurer and
on perusal of entire material documents, the claimant in the
present case deserves enhancement of compensation to a
marginal extent for the reasons stated hereinbelow:
(a) It is not in dispute that on 29.01.2018, when the
claimant was riding a motor cycle along with a pillion rider,
a maruthi omni car as stated above came in a rash and
negligent manner and dashed against the claimant, which
led to the accident. Due to the occurrence of accident, the
claimant and pillion rider sustained serious injuries. In
order to establish this fact, the claimant has got marked
documents as Exs.P1 to P13, in which Exs.P1 to P6 are the
Police records viz., FIR, complaint, spot panchanama and
chargesheet.
(b) The laying of charge sheet against the offending
vehicle has not been challenged by either of the
respondents. It is also not disputed that the criminal case
is registered as against the driver-cum-owner of the
offending vehicle so also no contra evidence has been
produced or elicited by the respondents with regard to
there being negligence of claimant and no negligence of
driver-cum-owner of the offending vehicle. Hence, on the
basis of these Police records, it can be safely concluded that
there was rashness and negligence driving by respondent
No.1-driver-cum-owner of the offending vehicle.
(c) Now coming to the aspect of income of claimant,
admittedly no material proof has been produced by the
claimant to prove his income before the tribunal or before
this Court. The tribunal has assessed the income of
claimant at Rs.7,500/- per month. I am in agreement with
submission of learned counsel for claimant that the said
income assessed by the tribunal is on the lower side and
the same requires enhancement. In the absence of proof of
income, the Courts will have to be relegated to do a guess
work with regard to the income. Admittedly, in the present
case, there is no proof of income produced by the claimant.
Hence, in order to arrive at a standard notional income, the
Courts are relegated to rely on the chart prescribed by the
Legal Services Authority wherein the notional income is
prescribed for relevant year of occurrence of accident. In
the present case on hand, the accident occurred in the year
2018 and the notional income prescribed for the year 2018
as per the Legal Services Authority is Rs.12,500/- per
month. Therefore, I deem it appropriate to take the income
at Rs.12,500/- per month as against Rs.7,500/- assessed
by the tribunal.
(d) As on the date of accident, the claimant was
aged 62 years and he was doing agricultural work along
with other work which he claims to be a Cook by
profession. In the absence of any proof of material to that
effect, the income deserves to taken at Rs.12,500/- per
month as stated above. The claimant has got examined the
Doctor through Court Commissioner, who has produced the
documents as stated above that there is a disability to an
extent of 40.33% to the right upper limb. Therefore, the
tribunal has assessed disability to the whole body to an
extent of 13%, in view of the fact that the Doctor has
assessed disability to the right upper climb. The claimant
has not produced any cogent material to show permanent
disability to the whole body. Hence, the tribunal has rightly
assessed the disability to the whole body to an extent of
13%. Therefore, I do not find any reason to interfere with
the same as the same is just and reasonable. In view of
the above, the claimant is entitled for loss of future earning
capacity, which would work out to Rs.1,36,500/-
(Rs.12,500/- x 12 x 7 x 13%) as against Rs.81,900/-
awarded by the tribunal.
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(e) The tribunal has not awarded any compensation
under the head of loss of income during laid up period. In
view of the fact that the claimant was inpatient for a period
of 08 days and he has suffered fractures, it can be safely
concluded that a person will not be able to get back to
regular work atleast for a period of three months.
Therefore, the claimant would be entitled for Rs.37,500/-
(Rs.12,500/-x3) under the head of loss of income during
laid up period. The tribunal has also not awarded any
compensation under the head of loss of amenities and
happiness. Hence, I deem it appropriate to award
Rs.25,000/- under the head of loss of amenities.
(f) Under the head pain and suffering, the tribunal
has awarded Rs.30,000/-. I deem it appropriate to award
Rs.40,000/- under the head of pain and suffering as
against Rs.30,000/- awarded by the tribunal.
(g) Towards medical expenses incurred by the
claimant on actual bills produced, the tribunal has awarded
Rs.1,24,000/-. I do not find any reason to interfere with the
same and the same shall stand intact.
(h) Towards future medical expenses and conveyance
and attendance charges, the tribunal has awarded
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Rs.30,000/- and Rs.1,600/- respectively and the same does
not call for any interference by this Court.
(i) In view of the discussions made above, I am of
the opinion that the claimant is entitled for enhancement of
compensation as per the table mentioned below:
Sl.No. Heads Amount (Rs.)
1. Pain and suffering 40,000-00
2. Medical expenses 1,24,000-00
3. Future medical expenses 30,000-00
4. Conveyance and attendant 1,600-00
charges
5. Loss of future income due 1,36,500-00
to disability
6. Loss of income during laid 37,500-00
up period
7. Loss of amenities 25,000-00
TOTAL: 3,94,600-00
For the aforesaid reasons, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The Judgment and award passed by the Senior
Civil Judge and XIII Additional MACT, Soraba in
MVC.No.597/2018 dated 15.04.2019 is modified;
iii) The claimant is entitled for compensation of
Rs.3,94,600/- as against Rs.2,67,500/- awarded
by the tribunal;
iv) All other terms and conditions stipulated by the
tribunal shall stand intact;
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v) The enhanced compensation with interest at 6%
shall be paid by the Insurer within a period of four
weeks from the date of receipt of a certified copy
of this order before the tribunal.
Sd/-
JUDGE
LB
